January 2008 Journal

THE OURNAL of the JKansas Bar Association January 2008 • Volume 77 • No. 1

The Road Ahead: “Kansas Noncompete Agreements An Updated Overview”

Remember to Renew Your KBA Membership

Let Your Voice be Heard!

KBA Officers and Board of Governors President: Linda S. Parks (316) 265-7741 parks@hitefanning.com President-elect: Thomas E. Wright (785) 271-3166 t.wright@kcc.ks.gov

Wichita

Young Lawyers Section President: Amy Fellows Cline (316) 630-8100 Wichita amycline@twgfirm.com

Topeka

KDJA Representative: Hon. Daniel L. Love (620) 227-4620 dlove@16thdistrict.net

Dodge City

Vice President: Timothy M. O’Brien (816) 474-6550 Kansas City, Mo. tobrien@shb.com

District 1: Eric G. Kraft (913) 498-3536 Overland Park ekraft@kc-dsdlaw.com

Secretary-Treasurer: Hon. Benjamin L. Burgess (316) 660-5607 bburgess@dc18.org

Wichita

Kip A. Kubin (816) 531-8188 Kansas City, Mo. kak@kc-lawyers.com

Executive Director: Jeffrey J. Alderman (785) 234-5696 jalderman@ksbar.org

Topeka

Immediate Past President: David J. Rebein (620) 227-8126 Dodge City drebein@rebeinbangerter.com KBA Delegates to ABA: Sara S. Beezley (620) 724-4111 beezleylaw@ckt.net

Girard

Hon. David J. Waxse (913) 551-5434 Kansas City, Kan. judge_waxse@ksd.uscourts.gov Kansas Delegate to ABA: Thomas A. Hamill (913) 491-5500 Overland Park tahamill@martinpringle-kc.com ABA Delegate at Large: Hon. Christel E. Marquardt (785) 296-6146 marquardt@kscourts.org

Topeka

Lee M. Smithyman (913) 661-9800 Overland Park smithyman@smizak-law.com

Teresa L. Watson (785) 232-7761 Topeka twatson@fisherpatterson.com District 6: Gabrielle M. Thompson (785) 539-3336 Manhattan gabrielle7000@sbcglobal.net District 7: Laura L. Ice (316) 660-1258 lice@cfc.textron.com

Wichita

Rachael K. Pirner (316) 630-8100 rkpirner@twgfirm.com

Wichita

Mary Kathryn “Kathy” Webb (316) 263-5851 Wichita kwebb@mtsqh.com District 8: Gerald L. Green (620) 662-0537 jerry@gh-hutch.com

District 2: Gerald R. Kuckelman (913) 367-2008 aca@journey.com

Atchison

Paul T. Davis (785) 843-7674 pauldavis@sunflower.com

Lawrence

District 9: Hon. Kim R. Schroeder (620) 428-6500 judge263@pld.com

Neodesha

District 10: Glenn R. Braun (785) 625-6919 grbraun@haysamerica.com

District 3: Dennis D. Depew (620) 325-2626 dennis@depewlaw.biz

District 4: William E. Muret (620) 221-7200 Winfield muret@winfieldattorneys.com District 5: Martha J. Coffman (785) 271-3105 m.coffman@kcc.state.ks.gov

Topeka

Hutchinson

Hugoton

Hays

District 11: Melissa A. Taylor Standridge (913) 551-5405 Kansas City, Kan. melissa_taylor_standridge@ksd. uscourts.gov District 12: Christopher J. Masoner (816) 983-8264 Kansas City, Mo. cmasoner@blackwellsanders.com

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THE OURNAL of the Kansas Bar Association January 2008 • Volume 77 • No. 1

ITEMS OF INTEREST

6 KBA Member Profile: Judge

Takes to the Stage and to the Road

REGULAR FEATURES

7

KBA and KBF Still Raising the Bar

8

Advance Notice: Elections for 2008 KBA Officers and Board of Governors

9 2008 Kansas Bar Association Awards

4 President’s Message

5 Young Lawyers Section News 11 A Nostalgic Touch of Humor 12 Law Students’ Corner 15 Members in the News 15 Dan’s Cartoon 16 Obituaries 18 Law Practice Management

Tips & Tricks 32 Appellate Decisions 40 Appellate Practice Reminders 42 Classifieds 43 CLE Docket

13 KBA CLE 2007 Outstanding 17

KBA Fee Dispute Resolution Committee Celebrates 20 Years of Service

Speakers Recognition

14 Recognition of 2007 Journal Authors

19 Thinking Ethics — Rules vs.

Rules: A Conflict on Inadvertent Production

20 Fall Provides a Bounty of new

Remember to Renew Your KBA Membership for 2008

Form Contracts

22

Kansas Noncompete Agreements — An Updated Overview

By John Vering and David Jermann

41 Notice: Sedgwick County

ONLY Increase in Docket Fees

Our Mission: The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

The Journal of the Kansas Bar Association is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association (ISSN 0022-8486) is published by the Kansas Bar Association, 1200 S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues.

Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037.

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

For advertising information contact Suzanne Green at (800) 211-1344 or e-mail sgreen@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

COPYRIGHT 2008 Kansas Bar Association, Topeka, Kan.

The Journal Board of Editors Director of Bar Services: Susan McKaskle Terri Savely Bezek, Chair Topeka Anne L. Baker Topeka Hon. Monti L. Belot Wichita Boyd Byers Wichita Hon. Jerry Elliott Topeka J. Lyn Entrikin Goering Topeka Connie Hamilton Topeka Mark D. Hinderks Overland Park Evan Ice Lawrence Katharine J. Jackson Manhattan Michael T. Jilka Overland Park Casey Law McPherson

Michelle Reinert Mahieu Dodge City Hon. Tom Malone Topeka Julene Miller Topeka Hon. Lawton R. Nuss Topeka Hon. James P. O’Hara Overland Park Prof. John Peck Lake Quivira Richard D. Ralls Kansas City, Mo. Richard H. Seaton Manhattan Marty M. Snyder Topeka Catherine A. Walter Topeka Diane S. Worth Wichita Martha Coffman, board liaison Topeka

Terri Bezek, Board of Editors chairperson, bezekt@kscourts.org Susan McKaskle, director of bar services, smckaskle@ksbar.org

From the President Linda S. Parks

Mandatory: Not Always a Bad Word

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and that is clearly the wave of the future. North Carolina, Missouri, Alabama, and Maine all converted to mandatory IOLTA programs, effective Jan. 1, 2008, which will bring the number of mandatory states programs to 36.

So I started thinking. Gee, I wonder why we are not a mandatory state. Except for disliking the word, of course. I wondered if We all are aware that under our code of ethics, when we hold it would really make much difference if we were mandatory. So a client’s funds, we have to put those funds into a trust account. I checked it out. The truth is that if we converted to a mandaBecause the funds do not belong to us, we are prohibited from tory program, it would make a HUGE difference. As of Octoreceiving interest on those funds. Now, occasionally the amount ber 2007, there were 5,002 active attorneys who indicated that they had trust accounts. Of of those funds is substantial those, 1,989 attorneys opt enough, and we will hold the funds long enough, that Maybe I am missing something. Occasionally I do. out of the program. Wow. Roughly 40 percent opt we will set up a separate trust account so the client But if our distaste for the word “mandatory” is the out.

Nevertheless, since the can receive interest on the only thing really standing between us and our abilfunds. But otherwise, we ity to truly assist those in need, let’s be mandatory. inception of our IOLTA program, more than $3 typically maintain our trust million have been distribaccounts and deposit funds and remit funds out of the account such that the cost to set up uted, primarily for civil legal services to assist low-income citiseparate accounts for each client would be more than the income zens of our state. That is an impressive number and has been a the individual deposit could generate. So we maintain a general terrific help to those in need. Now let’s increase that number by 40 percent. We have missed out on $1.2 million, which could trust account for such deposits.

Under the IOLTA program, the interest that could otherwise have been made available to assist the poor.

So then why have so many lawyers opted out? At first I thought be earned on the general trust account is, in fact, earned and is used for the public good. The funds are used to provide access those who had opted out likely had done so as the result of staff to justice and are distributed through a grant process to not-for- personnel not understanding the concept and not wanting to profit organizations, such as Legal Aid. Nationally, these funds figure it out. I suspect there is still a great deal of that. But there help hundreds of thousands of low-income families and indi- also is — or really was — a reason some lawyers did not particividuals. The funds are used to address disputes, such as spousal pate. Litigation. Over the past 10 years there have been several abuse, child abuse, domestic relations matters, child support is- legal challenges to the IOLTA programs, most notably in the states of Texas and Washington. While we all heard about claims sues, consumer disputes, and housing problems. that there could be liability attached to IOLTA accounts, we may There are three types of IOLTA programs. They are: have missed out on the conclusion to the story. The litigation is • Mandatory. (Shudder. There’s that word again). Under over. On March 26, 2003, in Brown v. Legal Foundation of Wash these programs, all the lawyers in the jurisdiction who ington, 538 U.S. 216 (2003), the U.S. Supreme Court upheld maintain client trust accounts must maintain IOLTA the constitutionality of IOLTA programs, holding that such pro accounts. grams do not violate the Fifth Amendment to the Constitution • Opt-out. Under the opt-out format, the lawyer parand affirming the view that IOLTA is a constitutional method to ticipates in the IOLTA program unless he or she fund legal services for the poor. In October 2004, the U.S. Su affirmatively makes the choice not to participate. preme Court declined to hear a Missouri state court case, which • Voluntary. Under these programs, the lawyer must affirinvolved a Fifth Amendment claim. So it appears IOLTA is safe matively elect to participate in the IOLTA program. and constitutional.

Of course it would be up to our Kansas Supreme Court to The first IOLTA Program was instituted in Florida in 1979. In decide whether our program should be mandatory. But if we 1984, the Kansas Supreme Court approved the IOLTA Program. support it, we should encourage our Court to change the rule.

We are an opt-out state. All 50 states (and the Virgin Islands Maybe I am missing something. Occasionally I do. But if our and Washington, D.C.) have now adopted some form of IOLTA distaste for the word “mandatory” is the only thing really standprogram. Only two states follow the voluntary format for the ing between us and our ability to truly assist those in need, let’s program. There are now 32 states that have mandatory programs, be mandatory. n Linda S. Parks can be reached by e-mail at parks@hitefanning.com or by phone at (316) 265-7741. he Interest on Lawyers’ Trust Accounts (IOLTA) Program.

Sounds boring. What is it and what does it mean? The Mandatory Interest on Lawyers’ Trust Accounts Program. Sounds bad. Hate that word, “mandatory.” But what is it and what does it mean?

4 – JANUARY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Young Lawyers Section News Making a new Start in 2008

By Amy Fellows Cline, Triplett, Woolf & Garretson LLC, Wichita, KBA Young Lawyers Section president

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City Repertory Theatre’s production of “To Kill a Mockingbird” for purchase by this seminar’s participants.

The second seminar is tentatively scheduled for April 25-26 in Wichita to coincide with the Midwest WinefKBA YLS Mentoring Program est. The participants will be able to The KBA YLS Mentoring Program matches up law students attend the Winefest’s Grand Tasting, Amy Fellows Cline and young lawyers who have just joined the bar with more sea- which includes wine tasting (more than 300 wines will be availsoned young lawyers. This program is unique since the protégés able), samples of gourmet food from more than 40 local restauare paired with mentors who recently maneuvered the challenges rants, and silent and live auctions. The third session will be held of law school, finding legal employment, and succeeding as a in Topeka. We hope to include appellate arguments to actual new lawyer.

Kansas Supreme Court justices and Court of Appeals judges as Participation in this program will benefit your professional part of this session. We plan to hold the business transactional life in many ways. Law students receive valuable insight into job seminar later this fall. interviews and placement, Keep an eye out for apand new attorneys obtain plications to participate practical pointers for deal- The KBA YLS is planning a series of CLE seminars, in this unique CLE seing with clients, partners, ries. Please contact Deana which will provide hands-on trial and business opposing counsel, and Mead, KBA CLE director judges. The program’s par- transactional training. This year’s trial series will at (785) 234-5696 or e-mail ticipants develop strong redmead@ksbar.org for appliinvolve a civil problem. lationships with fellow bar cations to participate in this members and encourage unique CLE series. the positive growth of the profession.

While e-mail and telephone contact between protégés and KBA YLS Public Service Projects mentors can be helpful, we want to encourage in-person contact The KBA YLS will put on two public service projects in 2008. as well. To that end, the KBA YLS have funds available to reimburse protégés and mentors for up to $10 per person for lunch One is the traditional statewide High School Mock Trial Promeetings or up to $50 per person for mileage expenses, if the gram. We will host regional tournaments in Wichita and Olathe participants must travel to meet with each other. Please contact on Saturday, March 1, and a state tournament in Wichita on Satme if you have any questions about this new reimbursement as- urday, April 5. We need attorney judges to preside over the minipect of the program or wish to submit a reimbursement request. trials put on by the high school students. Each mini-trial includes Please contact Beth Warrington at bwarrington@ksbar.org or at opening statements, closing arguments, and examination of three (785) 234-5696 for an application to be a protégé or mentor. witnesses by each side. Please contact Samantha Benjamin-House at (913) 371-3838 or at sbenjamin@mvplaw.com, or Scott Hill The program is free. at (316) 265-7741 or at hill@hitefanning.com, if you are available to judge a mini-trial at one of these tournaments.

KBA YLS “Hands-On” CLE Series We also intend to implement the ABA Young Lawyers DiviThe KBA YLS is planning a series of CLE seminars, which sion public service project, titled “Wills for Heroes.” This project will provide hands-on trial and business transactional training. provides free simple wills and trusts to first responders, such as This year’s trial series will involve a civil problem. The business police officers, fire fighters, and emergency medical personnel. transactional seminar will include a hypothetical business merger These individuals provide vital services to Kansas communities for which the participants will develop and present strategies to every day, yet often cannot afford estate planning to provide for “potential clients.” Each trial seminar will contain large group their families. We will need volunteer attorneys to draft form sessions addressing particular aspects of a trial (such as opening simple wills and trusts and assist the first responders in comstatements, closing arguments, expert preparation, examination, pleting the forms. Keep an eye out for upcoming notifications, etc.); then corresponding small group sessions in which the par- which will contain more details, regarding this project. ticipants will present their own opening statements, closing arguI encourage you to take advantage of the exceptional benefits ments, and examinations of witnesses. Each seminar is open to these activities can provide for your professional and personal 24 participants, who will then be broken up into small groups of development. Please feel free to contact me with any quessix. Each small group will have at least one attorney advisor for tions you may have about any of these projects, or your ideas individualized commentary upon the small group presentations. for other worthwhile projects in which the KBA YLS should be The seminars will correspond with social events to encour- involved. n age the participants to get to know each other and their fellow KBA YLS members. The first seminar will be held Feb. 8-9, in Amy Fellows Cline may be reached at (316) 630-8100 or at Kansas City. We have reserved discounted tickets for the Kansas amycline@twgfirm.com.

ith the beginning of a new year, many of you may be looking for ways to revitalize your practice and make a fresh start in 2008. Please consider participating in one (or more!) of the following activities as part of that process.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

JANUARY 2008 – 5

KBA Member Profile

Judge Takes to the Stage and to the Road

By Beth Warrington, KBA publications and sections administrator

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aw came to Judge Robert E. Nugent when he was growing up with his love of reading, writing, arguing, and thinking about things. Along with that came the fascination of politics.

“It always seemed to me that being a lawyer was a noble calling that required the greatest intellect as well as the desire to work hard on others’ behalf,” Nugent said. “I’d like to think there’s a little Atticus Finch in all of us.”

His own father did not get a chance to be a lawyer due to having to support a family and coming out of the service in 1954. Nugent said he believes his father regretted not going to law school.

“He always pounded into me that lawyers are their own bosses and that they possess a skill and license that no one can take away,” he said. “I think the independent aspect of being a lawyer spoke pretty loudly to me.”

With this in mind, Nugent went to the University of Kansas where he earned his B.A. in both English and political science in 1977.

He then attended KU’s law school and graduated with his J.D. in 1980. Nugent then spent seven years in practice in Hutchinson and served as a chapter 7 panel trustee and a chapter 11 examiner before joining Morris, Laing, Evans, Brock & Kennedy Chtd. in Wichita. In June 2000 he was appointed to the U.S. Bankruptcy Court for the District of Kansas becoming chief judge two years later.

Nugent’s legal pursuit is not the only thing that has his attention; he also has a strong music interest as well as an interest in running.

“I’ve been singing in some manner since I was in grade school,” Nugent said.

He sang throughout high school, college, and law school.

His wife, Linda, who is a pianist, has taught elementary and middle school vocal music for many years and has helped him prepare music over the last 20 years. Nugent also studied voice under George Gibson, who headed the opera department at Wichita State University (WSU).

“After singing untrained for many years,” he said, “I was amazed at how much technique it took to produce good tone.

I learned a lot from him, and it was quite a thrill to have lessons from someone who has taught singers like Samuel Ramey and Alan Held.”

6 – JANUARY 2008

Today he sings with the Wichita Chamber Chorale and has been with the Chorale off and on since 1987. The Chorale, founded in 1978 and conducted by Robert Glasmann of WSU, is an auditioned choir of between 25 and 40 voices. Many of its members are music teachers and choir directors.

“Doing this connects me with an entirely different group of people,” Nugent said. “It’s been great to have made good friends with people outside the legal community.”

Nugent does get an opportunity to perform for the legal community, in the form of the Wichita Bar Show. He has had roles in the show in 1991, 1995, and 2003.

“It is really a tremendous experience, mostly because I get to see and hang out Judge Robert E. Nugent with lawyers that I might not competing in a local run otherwise get to know,” he in Wichita. said. “I’m looking forward to 2010.”

While singing takes up a good amount of time, running is something he makes time for. After first getting interested as a college senior, Nugent said his running career has had fits and starts. Since 1992, he has been running with a noon group of guys, including some lawyers, at the local YMCA in Wichita.

“I became more motivated to run when I quit smoking in 1978 and needed to control my weight better,” he said.

Nugent competes in community races and even completed a 50 kilometer trail run in Independence, Kan. Nugent is also involved with many professional organizations, including being a member of the National Conference of Bankruptcy Judges and the American Bankruptcy Institute.

He was appointed by the chief justice of the U.S. Supreme Court to the Committee on Federal and State Jurisdiction of the Judicial Conference of the United States. He has formerly served as president of the Wichita Bar Association and is an active member of several local bar committees He has been a member of the Kansas Bar Association since 1980 and is a member of the KBA Bench-Bar Committee. n

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Executive Director’s Notes Jeffrey Alderman

KBA and KBF Still Raising the Bar

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s many KBA members may be aware, for the past several Inc. that have contributed to the RTB campaign, the word years, the Kansas Bar Foundation (KBF) and the Kansas “if ” will become a thing of the past.

Bar Association (KBA) have been involved in a colIt took nearly 50 years to build the Bar Foundation enlaborative fundraising effort, aptly named the Raising the Bar dowment up to a modest $500,000. By 2009, when the RTB Campaign (RTB).

Campaign reaches its planned conclusion, we will have efOur modest goal was to raise $1.2 million and the purpose fectively doubled our endowment to $1 million in just five of the campaign was two-fold. years! Wow! First, we would use During the next the funds for a muchyear, through use of needed expansion of these increased rethe Kansas Law Censources, we will be ter to build larger unveiling numerous and more up-to-date new initiatives that meeting facilities, add foster the integrity of much-needed technolthe legal profession as ogy enhancements, well as enhance puband modernize the exlic opinion of the role isting building. of lawyers in our sociWell, I am very ety. The first of these pleased to report that programs has already construction has been taken shape and that ongoing, is on schedis our scholarships ule, and a re-opening program. and re-dedication cerIn December, we The law firm of Case, Moses, Zimmerman & Wilson P.A. presented its first emony will take place law student scholarship to Michael T. Crabb of the University of Kansas gave our first law on Friday evening, School of Law. Pictured (l-r): Michael D. Case, William H. Zimmerman, student scholarship June 20, 2008, dur- Michael T. Crabb, and David H. Moses. Michael T. Wilson not shown. award, the Case, Moing the KBA Annual ses, Zimmerman & Meeting in Topeka. Please plan to join us for this grand event. Wilson P.A. Scholarship, to Michael Crabb of the University The entire legal community is invited to attend this historic of Kansas School of Law at a presentation at Bar headquarters. occasion.

Michael brought his wife, Julie, and their young son, Ethan.

The second objective of the campaign is to increase the en- It was a very gratifying experience for everyone involved and dowment of the Foundation to help increase funding for civil to use an overworked cliché, it’s just the tip of the iceberg as legal aid to the poor and improve the accessibility of the legal we plan to add at least five or six new awards in the coming system in Kansas. year.

During the last 25 years, the KBF, through the Interest on By the way, we are still accepting RTB pledges and if you Lawyers’ Trust Accounts (IOLTA) program, has provided would like to know how you or your firm could join in this more than $3 million in grants to worthy organizations. This exciting effort to “Raise the Bar,” please let me know. has made a major impact on the lives of those less fortunate.

As we begin 2008, the KBA and KBF are poised to make There was always the feeling, however, that the KBF should, great strides for our wonderful profession and we hope you’ll and could do more. If only we had a larger endowment on our join us for the ride. own. If only.

On behalf of the staff of the KBA, best wishes for a healthy, Through the amazing generosity of more than 50 law firms, happy, and prosperous year. n individuals, and the Attorneys Liability Protection Society You may contact Jeffrey Alderman by e-mail at jalderman@ksbar.org or by phone at (785) 234-5696.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

JANUARY 2008 – 7

Advance Notice: Elections for 2008 KBA Officers and Board of Governors Out of State - 12

It’s not too early to start thinking about KBA leadership positions for the 2008-2009 leadership year.

KBA President-elect (Current – Thomas E. Wright, Topeka) KBA Vice President (Current – Timothy M. O’Brien, Overland Park) KBA Secretary-Treasurer (Current – Hon. Benjamin Burgess, Wichita) The KBA Nominating Committee, chaired by David Rebein, Dodge City, is seeking information about individuals who are interested in serving in the positions of president-elect, vice president, and secretary-treasurer of the Kansas Bar Association. If you are interested, or know someone who should be considered, please send detailed information to Jeffrey Alderman, KBA Executive Director, P.O. Box 1037, Topeka, KS 66601-1037, by Friday, Jan. 11, 2008.

This information will be distributed to the Nominating Committee prior to its meeting on Friday, Jan. 25, 2008.

Board of Governors There will be six positions on the KBA Board of Governors up for election in 2008. 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 Friday, March 7, 2008. If no one files a petition by March 7, the Nominating Committee will reconvene and nominate one or more candidates for open positions on the Board of Governors. KBA districts with seats on the Board of Governors up for election in 2008 are: • District 1: Incumbent Lee M. Smithyman is eligible for re-election. Johnson County • District 3: Incumbent Dennis D. Depew is eligible for re-election. Allen, Anderson, Bourbon, Cherokee,

Crawford, Labette, Linn, Montgomery, Neosho, Wilson, and Woodson counties • District 5: Incumbent Teresa L. Watson is eligible for re-election. Shawnee County • District 7: Incumbent Mary Kathryn Webb is not eligible for re-election. Sedgwick County • District 8: Incumbent Gerald L. Green is eligible for re-election. Barber, Barton, Harper, Harvey, Kingman,

Pratt, Reno, Rice, and Stafford counties • District 12: Incumbent Christopher J. Masoner is eligible for re-election. Kansas City, Mo. KBA Delegate to ABA House of Delegates: Hon. David J. Waxse is not eligible for re-election.

In accordance with Article V, Elections, Section 5.2 of the Kansas Bar Association Bylaws, candidates for President-elect, Vice President, Secretary-Treasurer, and KBA Delegate to the ABA House may be nominated by petition bearing 50 signatures of regular members of the KBA with at least one signature from each Governor district.

For more information To obtain a petition for the Board of Governors, please contact Becky Hendricks at the KBA office at (785) 234-5696 or via e-mail at bhendricks@ksbar.org.

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 David Rebein at (620) 227-8126 or via e-mail at drebein@rebeinbangerter.com or Jeffrey Alderman at (785) 234-5696 or via e-mail at jalderman@ksbar.org. n 8 – JANUARY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

2008 Kansas Bar Association Awards

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he KBA Awards Committee is seeking nominations for award recipients for the 2008 KBA Awards. These awards will be presented at the KBA Annual Meeting in Topeka, June 19-21. Below is an explanation of each award, and a nomination form can be found on Page 10. The Awards Committee, chaired by Anne Burke Miller, Overland Park, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is Feb. 29.

Phil Lewis Medal of Distinction: The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others.

• The recipient need not be a member of the legal profession or related to it, but the recipient’s service may include responsibility and honor within the legal profession.

• The award is only given in those years when it is determined that there is a worthy recipient.

Distinguished Service Award: This award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service.

• The recipient must be a lawyer and must have made a significant contribution to the altruistic goals of the legal profession or the public.

• Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient.

Professionalism Award: This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession.

Outstanding Young Lawyer: This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA. Outstanding Service Awards: These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA. • No more than six Outstanding Service Awards may be given in any one year.

• Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or organizations.

Outstanding Service Awards may recognize: • Law-related projects involving significant contributions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a committee or section member; THE JOURNAL OF THE KANSAS BAR ASSOCIATION

• Work by a public official that significantly advances the goals of the legal profession or the KBA; and/or • Service to the legal profession and the KBA over an extended period of time.

Pro Bono Award: This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor. In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria: • Lawyers who are not employed full time by an organiza tion that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons.

Distinguished Government Service Award: This award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service.

The award shall be given only in those years when it is determined that there is a recipient worthy of such award.

Courageous Attorney Award: The KBA created a new award in 2000 to recognize a lawyer who has displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. Examples of recipients of this type of award in other jurisdictions include a small town lawyer who defended a politically unpopular defendant and lost most of his livelihood for the next 20 years, an African-American criminal defense attorney who defended two members of the white supremacist movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a worthy recipient. n Note: Nomination form on Page 10.

JANUARY 2008 – 9

KBA Awards Nomination Form Nominee’s Name q Phil Lewis Medal of Distinction

q Distinguished Service Award

q Outstanding Service Award

q Professionalism Award

q Outstanding Young Lawyer Award

q Pro Bono Award/Certificates

q Distinguished Government Service Award

q Courageous Attorney Award

Please provide a detailed explanation below of why you have nominated this individual for a KBA Award. Attach additional information as needed.

Nominator’s Name

Address

Phone

E-mail

Return Nomination Form by Friday, Feb. 29, 2008, to: KBA Awards Committee P.O. Box 1037 Topeka, KS 66601-1037 10 – JANUARY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

A Nostalgic Touch of Humor An Unforgettable Day at the “K” With 18,000 Kids

By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo.

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es Ipsa Loquitor means “the thing speaks for itself.” It’s a rule of evidence, rather than substantive law, but it means that the facts permit an inference of negligence.

“It doesn’t happen unless someone screwed up” as one might say. Though it is often applied to motor vehicle accidents and airplane crashes, it also has application to something not manufactured in Detroit. A sporting event. A baseball game.

More specifically, a Royals game played on Thursday, May 10, 2007. But this wasn’t just any game. This was a sporting event that illustrates another tried and true legal concept — the egg-shelled plaintiff. An event played before thousands of grade school children who were expecting something far different than what transpired that day.

Now before you stop reading and move to the section on new Kansas law developments, permit me further explanation.

You see, the Royals have an annual “kids get out of school free day.” Officially it’s “School Day at the K” — unofficially, it’s “Ritalin-free day.” Kids who are hyperactive because it’s a holiday gone completely insane, eating cotton candy, ice cream, and drinking Red Bull. And just when bedlam reached epic proportions, the first pitch was thrown. That’s when we get to the Res Ipsa part of this story.

Because what followed next was a disaster of Michael Vick proportions. It was, quite simply, a defeat that ranked in the top 20 in the 25 year history of the franchise — and that’s no small statement. The Royals lost 17-3. The following day, the Kansas City Star had bold headlines that blared: “Not in front of the kids!” The story reported: “More than 18,000 kids filed into Kauffman Stadium for the annual ‘School Day at the K.’ That’s a franchise record for the event and believed by club officials to be a major league record for such promotions.” The Star continued: “The youngsters learned all about severe weather from the fine folks at Fox 4 before watching the Royals, now 11-24, conjure up their own brand of disaster.”

The box score reported six home runs by Oakland, which tied a Royals record (seven other times).

Now stop and ponder this for a moment — 18,000 kids is more people than in most Kansas counties. It’s more students than at the Blue Valley School district, the largest school district in the state. No one knows from where they came. Or how they got there. Or who supervised them. One of life’s

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mysteries. No matter. They were all subjected to the rare privilege of watching the starter, Luke Hudson, last two innings and leave the game with an ERA of 18.00. Hudson never appeared in another game the rest of the year and disappeared off the Royals roster forever.

Catcher John Buck, master of the understatement, concluded: “They hit everything we threw.” Buddy Bell added his two cents: “It was a bad day” — this from a man whose entire coaching career has been spent refining such a thing. “It was one of those days that I am not even going to think about.

I am going to throw it away.”

Easy for him, perhaps, but what about those children?

No surprisingly, the baseball bloggers had something to say about all this. Some of the choice comments: “Instead of throwing [middle relief Royals pitchers] Todd Wellemeyer and Joel Peralta back to back, why don’t the Royals just forfeit? That would be a 9-0 loss, much better than what we witnessed Thursday.” “Did you know that was the 19th time in Royals history they allowed 17 or more runs? Strangely enough, they’re 0-19 in those games.”

“We lost a generation of KC Baseball fans in one game. The A’s were probably grateful. They had to be tired from running around the bases so often!”

The few toddlers who actually stayed in their seats and watched it all unfold (rather than hunt for Sluggerrrr or engage in the countless other activities the Royals offer to avoid watching the game) likely sustained a potential smorgasbord of cognizable injuries — negligent infliction of emotional distress, breach of contract, false imprisonment, just to name a few. All proven by Res Ipsa Loquitor. Because when it comes to proof of a defect, and the subject is the Royals, no further evidence is necessary. n About the Author Matthew Keenan grew up in Great Bend and attended the University of Kansas, where he received his B.A. in 1981 and his J.D. in 1984. For the last 21 years, Keenan has practiced with Shook, Hardy & Bacon. He may be reached at mkeenan@shb.com.

JANUARY 2008 – 11

Law Students’ Corner Transitioning to Law School

By E. Lee Oliver, Washburn University School of Law

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ransitioning to law school from undergraduate school or from a career can be a difficult task for anyone.

Personally, I have experienced this kind of transition in many ways: from community college to undergraduate school, from undergraduate school to law school, and from one law school to another as a transfer student. Once one has accomplished the feat of getting admitted, one must determine how to approach the “monster” of law school. I believe the key to a happy transition to law school lies in developing tools for coping with transition, setting goals, managing time, creating accountability, allowing for free time, and maintaining an overall commitment to excellence.

First, if I could start over, I would begin by reading William Bridges’ “The Way of Transition: Embracing Life’s Most Difficult Moments.” This book is an excellent resource to help cope with times of crisis and change and gives exercises for assessing and addressing the reader’s current state of transition.

Second, as a new law student, you can set goals by making lists of why you are in law school; what you want to accomplish; and where you want to be in five, 10, and 20 years.

Listing your reasons for going to law school will help you to persevere when times get hard. They work as a constant reminder that you came to law school for a reason and that until that goal is met, you cannot quit. Knowing what you want to accomplish in law school gives you something to strive for; for example, a certain grade-point average or membership on the moot court board. Lastly, knowing where you want to be in five, 10, and 20 years gives you the long-term goals needed to maintain motivation.

During law school orientation, a speaker advised using these questions as motivational tools. For me, the answers came naturally. These answers have enabled me to focus on accomplishing these goals rather than focusing on how hard law school is. Once you have accomplished your goals, it is a good idea to create a new list. There is always something else you can be improving and working toward.

Third, schedule not only your classes but also when you will study, and most importantly, when you will meet with your professors. Law school professors do not want to confuse you; they want to see you succeed. If you are having trouble with a concept, stop by and talk to your professor long before the last week of classes. I have made a habit of meeting with my professors at least twice per semester to ensure that I am grasping the essential concepts and terminology. This gives me a more solid framework in which to develop my understanding instead of piling new information on top of improper assumptions.

Fourth, find someone to whom you can be accountable for getting your work done. Unlike undergraduate school, one must study a lot to comprehend law school materials. I have maintained accountability by talking with professors, because I do not want to talk to them if I have not read the materials. I also recommend forming a study group in which each person is responsible for certain materials. This ensures that everyone 12 – JANUARY 2008

is on the same page and allows one to check their work against the others.

Fifth, law school is not an excuse to not have a life. If you do not find a creative or emotional outlet, you will become burned out and frustrated. Schedule time for fun — real fun, not making flash cards for legal vocabulary, but time away from the books. Go to church, go to a coffee house, go to a concert — it does not matter what you do; just go do something for at least one hour per week. My first semester, I talked on the phone a lot. Second semester, I spent time with friends who reminded me that there was more to life than school.

This semester, I am learning to play the guitar.

Finally, maintain an overall commitment to excellence by ensuring that all your reading is done, asking questions, making note cards, and taking time out. When I was in accounting, I had a friend who told me, “This is hard stuff. It doesn’t come naturally for anyone. Just do your best, and I will be proud of you.” Law school is hard stuff. It doesn’t come naturally, and if you do your best, you will accomplish something of which you can be proud. For me, commitment to excellence does not mean having the top A, but being able to say I did my best. I leave you with that thought: just do your best.

No one can ask anything more from you. n About the Author E. Lee Oliver, Topeka, a native Kansan and is a transfer law student at Washburn University School of Law. She transferred after completing one year at Thomas M. Cooley Law School in Lansing, Mich. She has a B.A. in public administration from Washburn University.

We would like to thank the Kansas Bar Association for allowing us to sponsor the “Corporate Counsel Summit CLE” on the Plaza in Kansas City, Mo., on Nov. 2.

We would also like to congratulate Ed Wilson of Blackwell Sanders LLP on winning the Plaza III Steakhouse gift card. We look forward to sponsoring future KBA events.

Michael Boulton, Registered Representative Joey Henderson, Registered Representative – John Hancock Financial Network THE JOURNAL OF THE KANSAS BAR ASSOCIATION

2007 Outstanding Speakers Recognition The Kansas Bar Association would like to recognize and thank the following individuals who gave so generously of their time and expertise in speaking at our Continuing Legal Education seminars September through December 2007. Their commitment and invaluable contribution is truly appreciated.

Mark A. Andersen, Barber Emerson L.C., Lawrence Charles S. “Terry” Arthur III, Kansas Farm Bureau, Manhattan J. Nick Badgerow, Spencer Fane Britt & Browne LLP, Overland Park John A. Bartolac, Johnson County Department of Records & Tax Administration, Olathe Andrew Beal, National Association of Insurance Commissioners, Kansas City, Mo. David P. Bleakley, Colt Energy Inc., Shawnee Mission Michael L. Blumenthal, Seyferth Knittig & Blumenthal LLC, Kansas City, Mo. Jonathan L. Booze, Sanders Booze Capital Advisors, Overland Park Lynne J. Bratcher, Bratcher Gockel & Kingston L.C., Kansas City, Mo. Gail E. Bright, Office of the Kansas Securities Commission, Topeka Margo E. Burson, Attorney at Law, Topeka Michael E. Callahan, Husch & Eppenberger LLC, Kansas City, Mo. Frank A. Caro Jr., Polsinelli Shalton Flanigan Suelthaus P.C., Overland Park Timothy R. Carr, West Virginia University, Morgantown, W.Va. James W. Clark, Kansas Bar Association, Topeka David R. Cooper, Fisher Patterson Sayler & Smith LLP, Topeka Michael J. Day, Kite & Day, Saint Francis Alice “Allie” Devine, Kansas Livestock Association, Topeka Emily A. Donaldson, Stevens & Brand LLP, Lawrence Kellee Dunn-Walters, Chicago Title Insurance Co., Overland Park James R. Eiszner, Shook, Hardy & Bacon LLP, Kansas City, Mo. Michael D. Fielding, Blackwell Sanders LLP, Kansas City, Mo. James G. Flaherty, Anderson & Byrd LLP, Ottawa Shelly L. Freeman, Human Resources Return on Investment LLC, Kansas City, Mo. Thomas A. Gerke, Embarq, Overland Park

Professor Robert L. Glicksman, University of Kansas School of Law, Lawrence Gregg C. Goodwin, Bever Dye L.C., Wichita Carol Graebner, H&R Block, Kansas City, Mo. Charles Griffin, Kansas State University, Manhattan Natalie G. Haag, Security Benefit Corp., Topeka Matthew R. Hale, Polsinelli Shalton Flanigan Suelthaus P.C., Kansas City, Mo. James D. Hall, National Council of Life Insurers, Lenexa Thomas D. Haney Jr., Henson, Clark, Hutton, Mudrick & Gragson LLP, Topeka George A. Hanson, Stueve Siegel Hanson LLP, Kansas City, Mo. Kathleen A. Harvey, Kathleen A. Harvey J.D. P.A., Overland Park Hon. Stephen D. Hill, Kansas Court of Appeals, Topeka Wyatt A. Hoch, Foulston Siefken LLP, Wichita Hon. Karen M. Humphreys, U.S. District Court for the District of Kansas, Wichita Brian M. Jacques, Sloan, Eisenbarth, Glassman, McEntire & Jarboe LLC, Topeka Eric P. Kelly, Spencer Fane Britt & Browne LLP, Kansas City, Mo. Jeff Kennedy, Martin, Pringle, Oliver, Wallace & Bauer LLP, Wichita Dale M. Krause, Krause Financial Services, De Pere, Wis. Hon. John W. Lungstrum, U.S. District Court for the District of Kansas, Kansas City, Kan. Hon. J. Thomas Marten, U.S. District Court for the District of Kansas, Wichita Professor Stephen W. Mazza, University of Kansas School of Law, Lawrence John G. McCannon Jr., Kansas Corporation Commission, Wichita Professor Roger A. McEowen, Iowa State University, Ames, Iowa Timothy E. McKee, Triplett Woolf & Garretson LLC, Wichita

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Professor Keith G. Meyer, University of Kansas School of Law, Lawrence Hon. David Mikesic, retired, Kansas City, Kan. Leslie M. Miller, Stevens & Brand LLP, Lawrence Mike Miller, Kansas Department of Wildlife & Parks, Pratt Bryson E. Mills, Bryson E. Mills Law Office, Wichita Hon. Carlos Murguia, U.S. District Court for the District of Kansas, Kansas City, Kan. Patrick R. Nichols, Associates in Dispute Resolution LLC, Lawrence Andrew J. Nolan, Foulston Siefken LLP, Wichita Lawrence E. Nordling, Norton, Wasserman, Jones & Kelly LLC, Salina Hon. Robert E. Nugent, U.S. Bankruptcy Court for the District of Kansas, Wichita Richard A. Olmstead, Kutak Rock LLP, Wichita Rep. Michael R. O’Neal, Gilliland & Hayes, Hutchinson Professor Aliza Organick, Washburn University School of Law, Topeka Professor John Peck, University of Kansas School of Law, Lawrence Professor David E. Pierce, Washburn University School of Law, Topeka Professor Harrison M. Pittman, University of Arkansas School of Law, Fayetteville, Ark. Talia B. Ravis, Attorney at Law, Leawood Craig C. Reaves, Reaves Law Firm P.C., Kansas City, Mo. Professor Sheila Reynolds, Washburn University School of Law, Topeka Larry R. Rute, Associates in Dispute Resolution LLC, Topeka Kathy M. Sachs, Office of the Kansas Secretary of State, Topeka Sarah J. Sargent, TFI Family Services, Topeka Robert T. Schendel, Jack Henry & Associates Inc., Lenexa Hon. Robert J. Schmisseur, 30th Judicial District, Pratt Staci O. Schorgl, Bryan Cave LLP, Kansas City, Mo. (Continued on next page) JANUARY 2008 – 13

Recognition of 2007 Journal Authors

THE JOURNAL of the

Kansas Bar Association

The Kansas Bar Association and its Journal Board of Editors would like to extend a special thank you to the following authors who gave their time and expertise in writing substantive legal articles for the Journal of the Kansas Bar Association. Your commitment and contribution is greatly appreciated.

Patrick B. Hughes, Adams Jones Law Firm P.A., Wichita, Aïda M. Alaka, Washburn University School of Law, “What Can They Do? Limitations on the Power of Local Topeka, “The Supreme Court Lowers the Bar on UnlawZoning Authorities” (January) ful Retaliation Claims in Burlington Northern & Santa Fe Casey R. Law, Bremyer & Wise, McPherson, “The CircuRailway Co. v. White” (November/December) lar File: Dealing with the 2005 Amendments to Treasury J. Nick Badgerow, Spencer Fane Britt & Browne LLP, OverDepartment Circular 230 Without Contracting Disclaimland Park, “New Horizons: Kansas Adopts Ethics 2000 ermania” (September) Changes” (June) Robert C. Casad, University of Kansas School of Law, Law- Kathy Perkins, Constangy, Brooks & Smith LLC, Kansas City, Mo., “BYTE ME! Protecting Your Backside in an rence, “General Jurisdiction in Kansas” (April) Electronic Discovery World” (March) Martha J. Coffman, Kansas Corporation Commission, Derek Teeter, U.S. Court of Appeals for the 10th Circuit, Topeka, “Procedures Under the Kansas Act for Judicial Kansas City, Kan., “Federal Preemption in Product LiabilReview and Civil Enforcement of Agency Actions, K.S.A. ity Cases” (July/August) 77-601 et seq.” (February) Arthur J. “Art” Thompson, Kansas Office of Judicial AdMatt Corbin, Lathrop & Gage L.C., Overland Park, “A ministration, Topeka, “Will the Legal Profession Ever be Practitioner’s Road Map to Removal and Remand in Kanthe Same? Disappearing Trials and ADR in Kansas” (May) sas Courts” (October) Stephen J. Torline, Blackwell Sanders LLP, Kansas City, Dave Deppe, Focus Legal Solutions, Kansas City, Mo., Mo., “Federal Preemption in Product Liability Cases” “BYTE ME! Protecting Your Backside in an Electronic (July/August) Discovery World” (March) Casey Tourtillott, U.S. District Court for the District of Christopher R. Drahozal, University of Kansas School of Kansas, “A Practitioner’s Road Map to Removal and ReLaw, Lawrence, “Jursidiction of Arbitrators to Decide Their mand in Kansas Courts” (October) Own Jurisdiction: Compétence-Compétence in Kansas and Colin D. Wood, Kansas Highway Patrol, Caldwell, “They MBNA America Bank N.A. v. White” (May) Didn’t Look Right to Me! Reasonable Suspicion in Kansas: Hon. Robert W. Fairchild, 7th Judicial District, Lawrence, Through Whose Eyes is it Viewed?” (September) n “Will the Legal Profession Ever be the Same? Disappearing Trials and ADR in Kansas” (May) Mary D. Feighny, Kansas Attorney General’s Office, Topeka, “Packing Heat: The Personal and Family Protection Act” (April)

2007 Outstanding Speakers Recognition (Continued from Page 13)

Steve A. Schwarm, Polsinelli Shalton Flanigan Suelthaus P.C., Topeka Kimberly E. Seten, Constangy, Brooks & Smith LLC, Kansas City, Mo. Rekha Sharma-Crawford, Sharma-Crawford Attorneys at Law LLC, Overland Park Jack W. Shultz, Shultz & Shultz Chtd., Dodge City Hon. Ortrie D. Smith, U.S. District Court for the District of Western Missouri, Kansas City, Mo. Marty M. Snyder, Kansas Attorney General’s Office, Topeka Brent G. Sonnier, OXY USA Inc., Houston Christian A. Stiegemeyer, The Bar Plan Mutual Insurance Co., St. Louis Lawrence A. Swain, Shughart Thomson & Kilroy P.C., Overland Park Terri D. Thomas, Kansas Bankers Association, Topeka 14 – JANUARY 2008

Brian M. Vazquez, Estate Recovery Unit, Topeka Roger N. Walter, Morris, Laing, Evans, Brock & Kennedy Chtd., Topeka Hon. David J. Waxse, U.S. District Court for the District of Kansas, Kansas City, Kan. Cynthia Weber Scherb, Brooke Franchise Corp., Kansas City, Mo. Molly M. Wood, Stevens & Brand LLP, Lawrence Thomas E. Wright, Kansas Corporation Commission, Topeka Hon. Eric Yost, 18th Judicial District, Wichita Angel R. Zimmerman, Valentine & Zimmerman P.A., Topeka Ann Zimmerman, Eggers & Zimmerman Law & Mediation, Salina Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka n THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Members in the News CHANGING POSITIONS Daniel K. Back and Tucker Poling have joined Hite, Fanning & Honeyman LLP, Wichita, as associates.

Jason W. Belveal has joined Tenopir & Huerter, Topeka.

Chad E. Chase has joined Knopp & Bannister, Manhattan.

Christopher C. Cinnamon has become the managing partner of Cinnamon Mueller LLC, Chicago.

Chadler E. Colgan has joined White, Goss, Bowers, March, Schulte & Weisenfels P.C., Kansas City, Mo. John E. Cruz and John D. “Jay” Seaton have been elected as members of Lewis Rice & Fingersh L.C., Kansas City, Mo. Charles R. Curran has joined Foulston Siefkin LLP, Wichita.

Jenny E. Deters has joined Gilmore & Bell P.C., Kansas City, Mo. Daniel C. Estes has become a partner with Fisher, Patterson, Saylor & Smith LLP, Overland Park.

Gregory C. Graffman has become partner of Geisert, Wunsch, Watkins & Graffman, Kingman.

Keith A. Haas has joined Invista, Wichita.

Michael S. Heptig has joined Sloan, Eisenbarth, Glassman, McEntire & Jarboe LLC, Topeka, as an associate.

William W. Mahood III has joined Polsinelli Shalton Flanigan Suelthaus P.C., Kansas City, Mo. Suneetra N. Mickle has joined Blue Cross and Blue Shield of Kansas, Topeka.

Eric A. Morrison has joined Scharnhorst Aust & Kennard P.C., Kansas City, Mo. Michael D. Moss has joined the Supreme Court of Missouri as a clerk, Jefferson City, Mo. Jonathan L. Neville has joined Arnall Golden Gregory LLP, Atlanta Justen P. Phelps has joined the Crawford County Attorney’s Office, Pittsburg.

Carolyn L. Payne has joind Farm Credit Services of Mid-America, Lousville, Ky. Christopher D. Schneider has joined Embarq, Overland Park.

John D. Seaton has been elected as a member of Lewis Rice & Fingersh L.C., Kansas City, Mo. Christopher J. Shepard and Lindsay A. Shepard have joined Watkins Calcara Chtd., Great Bend.

Luke R. Spellmeier has joined MRV Inc., Topeka.

Richard C. Stevens has joined Martin, Pringle, Oliver, Wallace & Bauer LLP, Wichita.

G. Thomas Williams has joined Hill, Beam-Ward, Kruse, Wilson, Wright LLC, Overland Park.

Michael J. Wyatt has joined Klenda, Mitchell, Austerman & Zuercher LLC, Wichita, as an associate.

CHANGING PLACES R. Bruce Daise has moved to 1 H&R Block Way, Kansas City, MO 64105.

Janet L. Damore has started her own firm, Damore Law Firm LLC, 5350 College Blvd., Ste. 201, Overland Park, KS 66211.

The Law Office of Weston R. Moore has moved to 531 N. Mur-Len, Ste. B, Olathe, KS 66062.

Andrew T. Starr has started his own firm, Andrew T. Starr LLC, P.O. Box 2116, Mission, KS 66201-1116.

Starla Borg Sullivan, Kansas Board of Indigents’ Defense, has moved to 234 N. 7th, Ste. A, Salina, KS 67401.

James M. Whittier has moved to 2808 W. 67th St., Mission Hills, KS 66208.

MISCELLANEOUS Martin W. Bauer, Wichita, has been recognized as an Angel in Adoption by the Congressional Coalition on Adoption Institute.

Kimberly W. Corum, Manhattan, is serving as the vice chair of the 2007-2008 Immigration Law Committee for the General Practice, Solo Small Firm Division of the American Bar Association.

Dan Lykins, Topeka, has been appointed by the Kansas Board of Regents to the Washburn University Board of Regents.

The firm of Geisert, Wunsch & Watkins is now Geisert, Wunsch, Watkins & Graffman, Kingman.

Kim R. Martens, Wichita, has been appointed to three-year term as employer co-chair of the American Bar Association Labor & Employment Section Workers’ Compensation Law Committee.

A.J. Schwartz, Wichita, has been appointed to the board of directors for Bank VI. Mikel L. Stout, Wichita, has been installed as the president of the American College of Trial Lawyers.

Brian C. Wright, Great Bend, became a Fellow of the American College of Trial Lawyers at the 2007 annual meeting in Denver.

Robert S. Wunsch, Kingman, has been appointed by Gov. Kathleen Sebelius to the Kansas Lottery Commission to serve a four-year term.

Correction: In the November/December issue of the Journal, it was incorrectly reported that Amy J. Tillery and Danne W. Webb had joined the Miller Law Firm P.C. Tillery and Webb joined the firm of Horn Aylward & Band LLC, Kansas City, Mo. We apologize for the error.

Editor’s note: It is the policy of The Journal of the Kansas Bar Association to include only persons who are members of the Kansas Bar Association in its Members in the News section.

Dan’s Cartoon by Dan Rosandich

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

“Maybe the truth will set you free, but a good lawyer is a lot more reliable.”

JANUARY 2008 – 15

Obituaries D. Edward Davis D. Edward Davis, 70, Amarillo, Texas, died July 18. Davis was born on April 27, 1937, in Plains, to William Edgar and Mildred F. Davis. He graduated from Kismet High School, Wichita State University, and Washburn University School of Law. Davis was a former officer of Amarillo Center City, Amarillo West Rotary, and Amarillo Executive Association. He was also a member of the Kansas Bar Association, Amarillo Business and Professional Association, Amarillo Traffic Commission, Tascosa Country Club, Amarillo Country Club, and many other organizations and committees.

Survivors include his wife, Melva Davis, Amarillo, Texas; his mother, Mildred Davis, Amarillo, Texas; and two daughters, Paula Davis, Seattle, and Judy Davis, McKinney, Texas.

Hon. Patrick F. Kelly Hon. Patrick F. Kelly, a retired U.S. district judge, died Nov. 16 in Wichita after a long illness. He was 78.

A native of Wichita, Kelly was born June 25, 1929. He would graduate from East High School in 1947 and then go on to graduate from Wichita University in 1952 with his bachelor’s degree. He received his juris doctorate from Washburn University School of Law in 1953. Kelly joined the U.S. Air Force in 1953 and served during the Korean War as an assistant judge advocate. After being honorably discharged as a lieutenant in 1955, Kelly began his career in law at the firm of Kahrs and Nelson. During that year he formed a partnership with John C. Frank, specializing in civil trial work.

After a seven-year partnership with Richard Render and Albert Kamas, Wichita, Kelly withdrew from the partnership to practice as a sole practitioner in 1975. After Judge Wesley Brown took senior status rather than retire in 1979, Kelly was appointed to the U.S. District Court for the District of Kansas in 1980. He became the first native Wichita attorney to sit on the federal bench.

In his career he was involved with many bar associations, including the Kansas and Wichita bar associations, and professional societies as well as community and political affairs.

Kelly served as president of the Kansas Trial Lawyers Association in 1967 and was also president of the Wichita Bar Association in 1973 and 1974. He was a member of the Association of Trial Lawyers of America, chair of the Wichita State University board of trustees, Fourth District Democratic Congressional Committee, and was a member of the Washburn University School of Law board of governors.

He is survived by his wife, Joan, and family.

Having grown up on a ranch, he worked his way through school in the rodeo. He served in the U.S. Air Force.

Survivors include his daughters Vicki Wilson, Wichita, and Sherry Sloan, Satanta; brother, Wray, Austin, Texas; and two granddaughters.

Harvey Snapp Harvey Snapp, 86, of Newton, died Oct. 28, at the Kansas Heart Hospital in Wichita.

He was born in rural Republic County on Sept. 9, 1921, to Raymond and Avis Blackwood Snapp. He graduated from Belleville High School in 1939 and enrolled in Kansas State University, where he received a degree in agriculture in 1944.

He enlisted in the U.S. Army and served in the Rainbow Division in France and Germany, and participated in the liberation of the Dachau concentration camp. He earned the Bronze Star for valor and served in the army of occupation in Austria until his discharge in 1946.

He received his law degree in 1949 from the University of Kansas School of Law. He then moved to Hoisington, where he practiced law before he joined the legal department of Railroad Building and Loan Association, Newton, in 1955.

He worked as general counsel for Railroad Savings until his retirement in 1986. He continued in the private practice of law with his son, Donald, at the Snapp Law Firm in Newton until his death.

He was active in many charitable and civic causes in the Newton area. He was a Cub Scout leader for more than 50 years and held many offices and positions with the Knights of Columbus and St. Mary’s Parish in Newton. He received service awards from the Boy Scouts of America, including the Silver Beaver Award and the Bronze Pelican Award, as well as the St. George Award from the Catholic Committee on Scouting. He was recognized several times for his service to the University of Kansas and the Knights of Columbus.

Snapp became a member of the Kansas Bar Association in 1949 and remained a member until his death. He twice received the KBA’s Distinguished Service Award He is survived by his wife, Marguerite C. Glotzbach, of the home; five children, Donald, Newton, Mary, Seattle, David, Dodge City, Randall, Tulsa, Okla., and Joanne Ruggiero, North Newton; and 11 grandchildren. n

Gerald D. Lasswell Gerald D. Lasswell, 77, of Wichita, died Oct. 30, 2007.

He was a practicing attorney for more than 50 years having graduated from Washburn University School of Law in 1954. He was a partner with the firm of Stinson, Lasswell & Wilson. Lasswell was a lifetime member of the Kansas Bar Association 16 – JANUARY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

KBA Fee Dispute Resolution Committee Celebrates 10 Years of Service

By Jim Clark, KBA Fee Dispute Resolution Comittee staff liaison

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he KBA Fee Dispute Resolution ing us on the KBA Web site, referral by Committee (FDRC) is celebrat- an attorney, or referral by the Office of ing its 10th anniversary, having Disciplinary Administrator. The KBA, been established in 1997 after a two-year in turn, sends the client a complaint study. The purpose for establishing the form, which includes a consent to arbicommittee was to retration, along with insolve disputes between structions on how the clients and attorneys process works. When over legal fees through the client returns the a statewide mediation completed forms, a process, which, it was copy is forwarded to hoped, would improve the attorney, along with relations between ata separate form for a torneys and the general response to the compublic and reduce the plaint and a consent to number of disciplinary arbitration form. The complaints resulting parties may agree to from misunderstandings forego mediation and over fees, and at no cost proceed directly to arto the participants. The bitration. If both parbar associations of Sedgties agree to mediation, Alan Alderson wick and Johnson counthe chair will attempt ties have their own fee to select a committee dispute process, which were in existence member from the general geographical prior to the KBA program, and were used area, although in some areas, committee as prototypes for the KBA plan. Com- members are so scarce that, rather than plaints received at KBA that arise from overload the local members, the case will those two counties are referred back to be referred to another area. The memthe respective county fee dispute com- ber/mediator will contact each party mittee, and the KBA committee strives and may attempt to resolve the dispute to serve the rest of the state, at no cost to informally. If mediation is required, it the participants. can be done by telephone or may result The current chair of the committee is in face-to-face mediation sessions. If eiAlan Alderson, a Topeka attorney, who ther party does not wish to participate has been a member of the committee further, the process terminates and the since its inception. He is the third com- client is advised to seek other avenues. mittee chair, succeeding Topeka attorney If mediation is unsuccessful, the disBill Ebert, who, in turn, succeeded Bob pute can be submitted to binding arFairchild when he was appointed Doug- bitration, if the parties have previously las County district judge. The commit- consented, before a panel of three comtee currently has 53 members. With mittee members. It has been suggested Johnson and Sedgwick county lawyers that for a lay person in a dispute with excluded, a predominant number of an attorney, a panel of three attorneys committee members are from Shawnee may be perceived as intimidating, or less County and other northeast Kansas than impartial. However, lay mediators counties. However, there are committee do not appear as anxious as attorneys members ranging from Goodland to Gi- to perform pro bono service to the bar, rard; Elkhart to Atchison; Englewood, and there are no funding sources for Colo., to Orlando, Fla.; and points in hiring them. If the parties are unwillbetween. Committee members are all ing to participate in arbitration, then KBA members who have received at least the FDRC terminates its effort, and the a one-day training session in the dispute parties are free to pursue other remedies. resolution process, and many members While the process appears to require a are certified mediators. large number of committee members, The dispute resolution process is start- complaints rarely proceed to the arbitraed when a client contacts KBA, by find- tion stage. n

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Fee Dispute Volunteers Alan Alderson, Topeka, chair Aline Cole Barrett, Topeka Sara Beezley, Girard Jack Black, Pratt Karen Black, Salina David Brake, Chanute Scott Bush, Lyons Ray Connell, El Dorado Daniel Creitz, Iola Mike Crow, Leavenworth Bill Ebert, Topeka Jane Eldredge, Lawrence Jerry Fairbanks, Goodland Judge Bob Fairchild, Lawrence Robert Farmer, Fort Scott Bradley Frigon, Englewood, Colo.

John Gaffney, Anthony Charles Getto, Kansas City Delton Gilliland, Lyndon William Graybill, Elkhart Michael C. Hayes, Oskaloosa Susan Jacobson, Junction City William Jeter, Hays Richard A. Johnson, Valley Falls Larry Karns, Topeka John Kasper, Ellsworth Katherine Kirk, Lawrence Don Knappenberger, St. John Tammie Kurth, Liberal Richard Loffswold, Jr., Girard Leo Logan, Overland Park Kurtis Loy, Pittsburg Larry Mears, Atchison Frank Meisenheimer, Hutchinson Jim Mills, Garden City Michael Patton, Emporia Roger Peterson, Ellworth Rachael Pirner, Wichita Bonnie Selby, Goodland W. Irving Shaw, Emporia Karen Shelor, Shawnee Mission Woody Smith, Lenexa John Stites, Manhattan Lloyd Swartz, Topeka Bill Swearer, Hutchinson Martin Updegraff Robert Van Cleave, Overland Park Doyle White, El Dorado Bradford Williams, Kingman T. Michael Wilson, Wichita Wint Winter Jr., Lawrence Thomas W. Young, Orlando, Fla. Ann Zimmerman, Salina JANUARY 2008 – 17

Law Practice Management Tips & Tricks Imaging — It’s all About Location, Location, Location

By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka

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he U.S. courts Web site reports that “Nationwide implementation of the federal judiciary’s Case Management and Electronic Case Files system is nearly completed in the district and bankruptcy courts and is advancing in the appellate courts.” Kansas attorneys have had access to this system for several years and now document imaging is rolling out in Kansas district courts. Attorneys should claim the same benefits of document imaging that the courts have seen and seized.

Location Real estate is a powerful motivator behind installing an imaging system for many users. Physical files take up too much space. When my office converted to imaging, a large file room was completely converted to six new work areas. As far back as 1986, the National Center for State Courts recognized that the average county court used almost 2,000 square feet just to hold dead records and Prince George’s County Court in Maryland estimated its annual expenses to simply move dead files around at more than $800,000.

Location As the pile of paper expands and moves about through your office, documents and files vanish. Document imaging can be a simple, efficient, and inexpensive solution. Your documents are always just a few keystrokes away in digital form. Even if a document gets misfiled in your imaging system, optical character recognition (OCR) technologies can find them.

Location Communication options have exploded casting parts of your office far and wide from hotel rooms, courthouses, and houses. Document imaging technology puts your entire file at your fingertips wherever you land. Online collaboration tools like WebEx, GoToMeeting, or even Google Docs will even allow multiple people to view, annotate, and work with your digital document images along with you anywhere in the world. (The security advantage from having your digital documents protected off site from man made or natural disaster should not be overlooked.)

Getting it together If you have not taken the plunge into document imaging, there is no better time than now. The technologies and standards have stabilized, storage media is cheap, and many firms find the hardware they already have adequate to the task. Just a few things to remember: 1. The software — I use a product called ImagingIT by Software Technologies (www.imaging-it.com or (866) 2470784). ImagingIT is infinitely configurable to my specific of18 – JANUARY 2008

fice procedures and document categories. It also includes thorough audit trails and security settings to ensure an accurate record of who creates, accesses, or changes any document.

2. The hardware — It is hard to beat Fujitsu scanners for reliability, speed, and price. It is handy to have one with an automatic document feeder and flatbed portion for scanning anything larger than letter size or shape (Fujitsu’s FI-4340C has both). A photocopier with high-speed scanning functions and network connectivity is also a great choice. I am still partial to my aging but perfect Savin 2560.

3. The paper — It’s a good idea to save the paper document for a short time after having imaged it. Mistakes do happen and having the original to correct the mistake can be a lifesaver. I keep documents for three months organized by the date they were imaged. Most mistakes are uncovered in that time; the space and time used to deal with that amount of paper is inconsequential.

4. The process — Running and confirming backups regularly is never as important as it is when your entire office is loaded onto a hard drive. Run daily backups to an online backup service (eVault.com and IronMountain.com are toptier providers) and weekly backups to an external hard drive.

Backups are large — I’ve been imaging for seven years and have about 30 gigabytes of images.

5. The people — Imaging requires more brains than I used when I was a filing clerk. Imaging staff need to be comfortable with computers and attentive to the details of what they are imaging, where they are imaging it to, and how the image looks.

The thought of moving your office from the tangible paper world onto a computer hard drive might sound daunting but the payoff of location, location, location provides real return in time and money. n About the Author Larry N. Zimmerman, Topeka, is a partner at Valentine & Zimmerman P.A. and an adjunct professor teaching law and technology at Washburn University School of Law. He has spoken on legal technology issues at national and state seminars and is a member of the Kansas Collection Attorneys Association and the American, Kansas, and Topeka bar associations. He is one of the founding members of the KBA Law Practice Management Section, where he serves as editor.

To join the LPM Section or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696.

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Thinking Ethics Rules vs. Rules: A Conflict on Inadvertent Production

By J. Nick Badgerow, Spencer Fane Britt & Browne LLP, Overland Park

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lawyer who receives privileged documents from an opponent always faces a dilemma: to read or not to read; to notify or not to notify; to return or not to return. Faced with that dilemma, a lawyer should consider the Golden Rule, the rules of professional conduct and the applicable rules of civil procedure. For a case pending in Kansas federal court, the answer may not be clear.

Rule 1.3, MRPC, requires a lawyer zealously to represent her client. Both before and after the adoption of the changes called “Ethics 2000,” Rule 4.4, MRPC requires a lawyer to have respect for the rights of third parties. A prior ABA Ethics Opinion1 and supporting case law2 required a lawyer who received an inadvertently produced privileged document to take three steps: to refrain from reviewing it; promptly to notify the sender; and to abide the producing party’s instructions.

The adoption of Ethics 2000 brought about an addition to Rule 4.4, and a change to this mandate. The new Rule 4.4(b) only requires a lawyer in this situation “promptly [to] notify the sender.” Thus, there is now no requirement under the ethics rules to refrain from reading the document, or even to abide the producing party’s instructions regarding the destruction or return of the document. The ABA blessed this approach with its pronouncement of ABA Ethics Op. 05-437.

This Opinion expressly overrules Op. 92-368. Predictably, this new view has also been adopted in various states.3 Since the rules changes from Ethics 2000 have been adopted in both Missouri and Kansas, one may think this is now the firm and applicable rule in all situations.

However, consider the new Rule 26(b)(5)(B) to the Federal Rules of Civil Procedure, adopted on Dec. 1, 2006. This Rule recites the pre-Ethics 2000 principle that the recipient, upon being notified he has received a privileged document, “must promptly return, sequester or destroy the information,” and “may not use or disclose the information until the claim is resolved.” Finally, if the information has already been disclosed, the producing party “must take reasonable steps to retrieve it.”

The results from a failure to comply with this requirement can be drastic. In the recent case of Rico v. Mitsubishi Motors Corp.,4 the California Supreme Court held that a lawyer who attempted to use work product materials received from an opponent, even if they were received inadvertently, was subject to disqualification.

Balancing these two apparently inconsistent rules, then, the lawyer who receives a document which appears to be privileged and apparently produced inadvertently must notify the sender. Then, the producing party must promptly request the receiving party to return it. In federal court, the receiving party must abide the producing party’s request for the return or destruction of the document.

The Civil Code Advisory Committee of the Kansas Judicial Council is considering the adoption of the 2006 and the 2007 amendments to the Federal Rules of Civil Procedure, which THE JOURNAL OF THE KANSAS BAR ASSOCIATION

if approved by the Committee, the Council, and the Legislature, would become the applicable rules in Kansas state courts as well.

Thus, while the rules of ethics now only require notification to the producing party that a document has been inadvertently produced, the Federal Rules of Civil Procedure (and perhaps soon the Kansas Civil Code), require more: return of the document and nonuse of the document. n

FOOTNOTES 1. ABA Ethics Op. 92-368 (1992).

2. See e.g., Transp. Equip. Sales Corp. v. BMY Wheeled Vehicles, 930 F. Supp. 1187 (N.D. Ohio 1996); Am. Express v. Accu-Weather Inc., Nos. 91 CIV 6485 (RWS) & 92 CIV 705 (RWS), 1996 WL 346388 (S.D.N.Y. June 25, 1996); State Comp. Ins. Fund v. W.P.S. Inc., 82 Cal. Rptr. 2d 799 (Ct. App. 1999).

3. See e.g., Pa. Ethics Op. 2005-22 (2005); N.Y. City Ethics Op. 2003-4 (2003).

4. Cal. Lexis 13892, 2007 WL 4335934 (December 13, 2007).

About the Author J. Nick Badgerow is a partner with Spencer Fane Britt & Browne LLP in Overland Park. He is a member of the Kansas State Board of Discipline for Attorneys and the Kansas Judicial Council.

He is chairman of the Judicial Council’s Civil Code Advisory, the Kansas Bar Association Ethics Advisory Committee, the Johnson County Bar Association Ethics and Grievance committees, and the KBA Ethics 2000 Commission.

Mark Your Calendars KBA Annual Meeting June 19-21, 2008 Capitol Plaza Hotel Topeka JANUARY 2008 – 19

Fall Provides a Bounty of new Form Contracts

By Cody G. Robertson, Goodell, Stratton, Edmonds & Palmer LLP, Topeka

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s construction attorneys (or attorneys generally, for that matter) we are all too familiar with the concept of “drowning in paperwork.” To avoid this unfortunate fate, you may want to keep a life preserver deskside over the coming weeks, because a boatload of new documents are making their way to your office as we speak.

A. The A201-2007 Family of Documents On Nov. 5, the American Institute of Architects (AIA) released a revised version of A201-1997, General Conditions of the Contract for Construction and the 50-plus owner/architect and owner/contractor documents that rely on it, collectively known as the “A201 Family.”

In response to complaints that prior incarnations of the A201 Family tended to favor architects, the AIA began the 2007 revision process by soliciting feedback from more than a dozen owner, engineer, attorney, and contractor groups. Not surprisingly, almost all of the feedback concerned dispute resolution. Some of the more significant issues raised concerned the architect’s initial decision on claims, arbitration, consolidation of arbitrations, time limits on claims, consequential damages, and additional insured provisions.

The AIA Documents Committee addressed most, but not all, of this feedback in the drafting of the A201-2007 family of documents. Many of the revisions were actually concepts already employed in the AIA’s 2004 Design-Build documents.

One such concept is that of the third-party initial decisionmaker (IDM). Since 1911, the A201 has designated the architect as the IDM in disputes arising between the contractor and owner. However, in response to concerns that the architect is not always able to act impartially in this role, A201-2007 gives parties the option of designating a neutral third-party IDM to make all initial decisions on claims.

Another significant concept lifted from the 2004 DesignBuild documents is the check-box provision by which parties can choose either “litigation” or “arbitration” as their preferred method of dispute resolution. This is a drastic change from prior incarnations of A201, which have required mandatory arbitration since the AIA published the first owner/contractor agreement in 1888.

One area in which A201-2007 remains unchanged despite numerous industry concerns is in its waiver of the consequential damages provision. Since it was first included in A201-1997, owners have complained that this provision was inequitable since their potential consequential damages often dwarf those of contractors. Nonetheless, the waiver of consequential damages remains intact in A201-2007.

B. ConsensusDOCS Not to be outdone by the AIA, the Associated General Contractors of America (AGC), in collaboration with more than 20 other trade organizations representing almost every viewpoint in the construction industry, recently released the “ConsensusDOCS,” a set of 70 new construction contracts and related forms. In a clever nod to this utopian experiment, 20 – JANUARY 2008

-DOCS is actually an acronym for designers, owners, contractors, and sureties. Conspicuously absent from this industry “consensus,” obviously, is the AIA, as well as the National Society of Professional Engineers, which publishes its own catalog of form construction contracts through the Engineers Joint Contract Document Committee (EJCDC).

The ConsensusDOCS are, much like the A201-2007 family, designed to replace the various traditionally relied-upon form construction contracts, which some say tended to favor one party’s position over another, with a more egalitarian set of agreements. It should be kept in mind, however, that the ConsensusDOCS were not created from whole cloth; most of the documents are actually revisions of the AGC’s form contracts. That said, there are some very interesting and entirely new concepts in the ConsensusDOCS that are worth noting.

The most intriguing of these concepts is the new “Standard Form of Tri-Party Agreement for Collaborative Project Delivery,” ConsensusDOCS 300. The Tri-Party Agreement is the mutant spawn of a Construction Management and a Design-Build contract based on a cost plus compensation model. The premise behind this new delivery model, as stated by the drafters, is that collaboration between the three major players — the owner, the architect, and the builder — will “minimize the risk of delay, conflict, and increased cost typically experienced by project participants in nonintegrated project delivery.” The ConsensusDOCS Guidebook is quick to point out that “a party that cannot shed itself of the old school, traditional, and adversarial approach to design and construction will not succeed in using the ConsensusDOCS 300 model.”

Another new and interesting concept in the ConsensusDOCS is the Electronic Communications Protocol Addendum (Addendum). The Addendum was drafted in anticipation of an increased reliance on both electronic communication and building information modeling in the construction industry. In electronically driven projects in which the addendum is employed, it requires the parties each to designate an information technology administrator to handle the exchange of electronic information between one another. It also lays out a protocol by which such information is exchanged and places the risk of errors in the transmission of such information on the party failing to meet the requirements of the protocol. Since the Addendum operates on largely untrodden ground, it will remain to be seen if it adequately addresses the myriad issues that could potentially arise in a tech-heavy project.

Perhaps not surprisingly, the ConsensusDOCS addresses dispute resolution somewhat differently than the AIA or EJCDC documents. For one thing, mediation is required before either litigation or arbitration under the ConsensusDOCS model. Additionally, the ConsensusDOCS remove the design professional entirely from the dispute resolution process between the owner and the contractor. (continued on Page 31) THE JOURNAL OF THE KANSAS BAR ASSOCIATION

I. Introduction With employee loyalty on the decline, competition for employees on the increase and employee job-hopping becoming more common, an increasing number of employers are scrambling to protect themselves from unfair competition by departing employees. The mechanisms being used include noncompetition agreements, nonsolicitation of customer agreements, anti-employee raiding agreements, and nondisclosure agreements.

This article will discuss the most common types of restrictive covenant agreements, provide practical suggestions regarding drafting and litigating restrictive covenants, and survey important recent Kansas cases involving noncompete agreements.1 In addition, this article will touch on other issues that frequently arise in the context of enforcing noncompete agreements, including the Kansas Uniform Trade Secret Act (KUTSA),2 assignment/successor employer issues, requirements for injunctive relief, liquidated damages, actual damages, defenses against enforcement of noncompete agreements, claims of tortious interference with contract, and federal and Kansas computer fraud statutes that can sometimes come into play in connection with the unauthorized theft of confidential information and trade secrets.3

II. Types of Restrictive Agreements The least restrictive and most commonly enforced restrictive covenant is a restriction on the disclosure of confidential information and trade secrets. The use of this type of agreement is particularly useful as a supplement to the statutory protections afforded by the KUTSA. The KUTSA defines a “trade secret” as follows: “Trade Secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (i) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

The Road Ahead: “Kansas Noncompete Agreements An Updated Overview”

By John Vering and David Jermann

22 – JANUARY 2008

(ii) is the subject of efforts that are reasonable 4 under the circumstances to maintain its secrecy.”

FOOTNOTES 1. For an excellent discussion of less recent case authorities on noncompete covenants, readers are directed to Douglas M. Weems, Covenants Not to Compete: A

Kansas Law Overview, J. Kan. Bar Ass’n, Mar. 1998, at 26.

2. K.S.A. 60-3320 et seq.

3. See, e.g., 18 U.S.C. § 1030 and K.S.A. § 21-3755.

4. K.S.A. 60-3320(4).

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

LEGAL ARTICLE: KANSAS NONCOMPETE AGREEMENTS ...

Confidentiality or nondisclosure agreements are a useful supplement to the KUTSA because a contractually imposed duty of confidentiality is independent of the statutory duty imposed by the KUTSA.5 Thus, a nondisclosure agreement may allow the employer to protect confidential information that does not qualify for protection as a “trade secret” under the KUTSA, such as where the employer failed to use reasonable steps to maintain its secrecy. Moreover, if the employee agrees in writing that a particular document constitutes confidential information, e.g., a “customer list,” the employer is in an enhanced position to obtain injunctive relief or damages by being able to argue that the employee has already agreed that the customer list is confidential. However, if the description of the confidential information is too general and would virtually bar the former employee from the practice of his profession and would unduly infringe upon his right to earn a living, the restriction will usually not be enforced.6 The second type of commonly used restrictive covenant is the nonsolicitation of customers agreement, whereby the former employee agrees not to solicit his former employer’s customers for a particular period of time, at least in a way that would be competitive with the services offered by the former employer.7 The third type of restrictive covenant is a variation on the nonsolicitation agreement but runs not to the former employer’s customers but rather to the former employer’s employees.

These are commonly known as anti-raiding or anti-employee raiding covenants. In Ori Inc. v. Lanewals, the U.S. District Court for the District of Kansas recognized that the covenant not to employ, solicit, or seek to employ a person employed by the former employer was valid under Kansas law.8 However, Judge John W. Lungstrum held that summary judgment was proper against the former employer because there was no evidence of damage in that no admissible evidence was presented that any of the former employer’s employees actually left employment at the suggestion of the former employee.9 The last and most restrictive type of covenant is what is known as the covenant not to compete, which typically restricts the employee from competing with his prior employer for a particular length of time in a specified geographical region.10

III. Requirements for Enforcing Restrictive Covenants In Idbeis v. Wichita Surgical Specialists P.A.,11 the Kansas Supreme Court affirmed the vitality of the governing principles 5. All West Pet Supply v. Hill’s Pet Prods., 847 F. Supp. 858, 861 n. 2 (D. Kan. 1993).

6. Vasquez v. Ybarra, 150 F. Supp. 2d 1157, 1173-74 (D. Kan. 2001) (dicta), citing Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 257, 679 P.2d 206, 211 (1984).

7. See, e.g., Am. Fidelity Assurance Corp. v. Leonard, 81 F. Supp. 2d 1115, 1120-21 (D. Kan. 2000) (prohibiting former employee for two years from soliciting former employer’s customers in a nine-county area where employee worked).

8. 147 F. Supp. 2d 1069, 1076-77 (D. Kan. 2001).

9. Id. at 1078-80.

10. See, e.g., Idbeis v. Wichita Surgical Specialists P.A., 279 Kan. 755, 112 P.3d 81 (2005).

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previously annunciated by the Court in Weber v. Tillman,12 regarding the general rules on enforcement of noncompete covenants. Those general principles include the following: 1. A noncompetition covenant ancillary to an employment

contract is valid and enforceable if the restraint is reason able under the circumstances and not adverse to the public welfare.13 2. The rationale for enforcing a noncompetition covenant is

based on the freedom of contract.14 3. Only a legitimate business interest may be protected by a noncompetition covenant, and if the sole purpose of the covenant is to avoid ordinary competition, it is

unreasonable and unenforceable.15 4. Noncompetition covenants included in employment

contracts are strictly construed against the employer.16 The Kansas Supreme Court in Idbeis also reaffirmed the four factors that are to be considered in analyzing whether a noncompetition clause is reasonable: 1. Does the covenant protect a legitimate business interest of the employer?

2. Does the covenant create an undue burden on the employee?

3. Is the covenant injurious to the public welfare?

4. Are the time and territorial limitations contained in the covenant reasonable based on the particular facts and

circumstances of each case?17

A. Restrictive covenants must protect a legitimate business interest of the employer Trade secrets and customer contacts have long been recognized in Kansas as legitimate business interests worthy of protection by noncompete agreements.18 Similarly, seeing that contracts with clients continue and also protecting against loss of clients are well-recognized legitimate business interests subject to protection by a reasonably crafted noncompete agreement.19 Other recognized protectable interests of employers include special training of employees, referral sources, good will, and reputation.20 However, the Kansas Supreme Court has refused to expand the list of protectable interests to include the employer’s size or “critical mass” or the special contributions the employer might be able to make to its community because of its size.21 Moreover, although the Court in Weber recognized that “referral sources” were among legitimate business interests that could be protected by a reasonably limited covenant,22 11. 279 Kan. 755, 112 P.3d 81 (2005).

12. 259 Kan. at 457, 913 P.2d at 84 (1996).

13. Idbeis, 279 Kan. at 755, 112 P.3d at 82.

14. Id. 279 Kan. at 755, 112 P.3d at 82-83.

15. Id. 279 Kan. at 755, 112 P.3d at 83.

16. 259 Kan. at 462, 913 P.2d 84.

17. 279 Kan. at 755, 112 P.3d at 83.

18. Weber v. Tillman, 259 Kan. 457, 467, 913 P.2d at 84, 91.

19. Id. 20. Id. 21. Idbeis, supra, 279 Kan. at 767, 112 P.3d at 89.

22. Id. 259 Kan. at 467, 913 P.2d at 91.

JANUARY 2008 – 23

LEGAL ARTICLE: KANSAS NONCOMPETE AGREEMENTS ...

there are limitations to the protection of referral sources. For example, in Graham v. Cirocco,23 the Court found that a former employer of a colorectal surgeon had a legitimate interest in referral sources that could validly be protected by a two-year, 150-mile, nonsolicitation restriction that prohibited the former employee from soliciting business from the patients or referral sources of the former employer with whom the former employee had come in contact as an employee of the former employer.24 However, the restrictive covenants went further by prohibiting the former employee from providing services at any hospital in the Greater Kansas City metropolitan area and prohibiting the former employee from opening an office within the geographical region of the Greater Kansas City area bounded

by Lawrence on the west; Blue Springs, Mo., on the east; Leavenworth on the north; and a line 25 miles beyond Olathe on the south.25 The Court found that colorectal surgeons were engaged in a medically necessary subspecialty and that having only one such specialist in northeast Kansas would result in short-

ages of colorectal surgeons.26 Under the circumstances, the Court found that enforcing the noncompete portions of the restrictive covenant would threaten the public welfare by forcing seriously ill patients to face long waits for appointments.27 Therefore, the 25-mile restriction on placement of the former employee’s office and the prohibition on delivery of services in any of the hospitals listed in the Greater Kansas City metropolitan area were stricken as unreasonably overbroad and an attempt to protect the former employer from “ordinary competition of a kind a stranger could give.”28 It is interesting that the Graham Court distinguished Weber by pointing out that Weber involved a dermatologist, which the Court viewed as engaged in a medical subspecialty that was not as necessary as colorectal surgeons.29 Thus, although the opinion is not clear on this point, the noncompete provisions of the agreement might well have been enforced had the case not involved a medical subspecialty where physicians were both very necessary and in short supply.

In Weber, the Court recognized that other jurisdictions had recognized “special training of employees” as a legitimate business interest protectable by a reasonably limited covenant.30 In Allen Gibbs & Houlik L.C. v. Ristow,31 the Court explored the extent to which special training would justify a restrictive covenant. In Ristow, a former employer sought to enforce a restrictive covenant that would have prevented a certified public accountant working in an employee benefits group from accepting a position with any client or center of in23. 31 Kan. App. 2d 563, 69 P.3d 194 (2003).

24. That nonsolicitation proviso had an exception whereby the former employer agreed to notify patients served by the former employee that the former employee was leaving and afforded those patients who requested in writing an opportunity to be serviced by the former employee. Id. 31 Kan. App. 2d at 565, 69 P.3d at 196.

25. 31 Kan. App. 2d at 566, 69 P.3d at 197.

26. 31 Kan. App. 2d at 572, 69 P.3d at 200.

27. Id. 31 Kan. App. 2d at 571, 69 P.3d at 200.

28. 31 Kan. App. 2d 571-72, 69 P.3d at 199200.

29. Id. 31 Kan. App. 2d at 572, 69 P. 3d at 200.

24 – JANUARY 2008

fluence of the employer or Koch Industries Inc. and its affiliated companies for a six-month period after termination of employment.32 In determining whether the training provided to Ristow was adequate to support the restrictive covenant, the Court noted that the training over a seven-year period was valued at $7,479.33 After noting that the training was non-exclusive, that Ristow’s skills were not unique, and that her duties were absorbed by existing staff once her employment was terminated, the Court found that this training was not adequate to support the restrictive covenant contained in the agreement.34 The Court also noted that there was no special relationship between Ristow and any of the former employer’s clients and no allegations that she conveyed any trade secrets.35 Thus, under the circumstances, the Court found that the former employer had no protectable interest sufficient to support the restrictive covenant.36 It appeared to be significant to the Ristow Court that the former employer did not establish that Ristow could have easily located employment “outside the confines of the contractual language.”37 Indeed, the Court noted that Ristow had been informed that “under the definition of client and center of influence, ‘there were very few places Ristow could become employed.’”38 The appeals court also emphasized that there was no explanation in the agreement for why Ristow was barred from accepting employment with “Koch Industries and its affiliated companies” and that the agreement did not define or describe the “affiliated companies” of Koch Industries.39 30. 259 Kan. at 467, 913 P.2d at 91.

31. 32 Kan. App. 2d 1051, 94 P.3d 724 (2004).

32. Id. 32 Kan. App. 2d at 1052, 94 P.3d at 725.

33. Id. 32 Kan. App. 2d at 1057, 94 P.3d at 728.

34. Id. 32 Kan. App. 2d at 1057-58, 94 P.3d at 728.

35. Id. 32 Kan. App. 2d at 1058, 94 P.3d at 728.

36. Id. 32 Kan. App. 2d at 1058-59, 94 P.3d at 728-29.

37. Id. 32 Kan. App. 2d at 1056, 94 P.3d at 727.

38. Id. 32 Kan. App. 2d at 1058, 94 P.3d at 729.

39. Id.

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Ristow illustrates some practical points in the drafting and enforcement of a restrictive covenant. First of all, the more difficult the covenant makes it for the employee to find work with a new employer, the less likely a court is to enforce the covenant. Second, if there is a legitimate business reason for precluding the employee from working for another entity, such as a customer, an employer should spell out the reasoning in the agreement. Finally, an employer should define vague terms such as “affiliated companies” given that an ambiguous agreement will be construed against the employer and could well result in the ambiguous term not being enforced.

It should also be noted that the Kansas Supreme Court has held that when assessing the reasonableness of restrictive covenants a distinction has sometimes been drawn between covenants incident to an employment contract and those that are ancillary to the sale or other transfer of a business, practice, or property.40 In H&R Block v. Lovelace, the Court noted that “courts of equity have been less prone to enforce restrictive covenants between employer and employee than where the restriction is part of a contract for sale of a business in which good will may be a part of the property sold,” and that “the former [will be] more strictly [construed] against the employer-promisee in determining their reasonableness [citations omitted].”41 The Court in H&R Block went on to note the policy considerations that justify this disparate treatment, including 40. H&R Block Inc. v. Lovelace, 208 Kan. 538, 493 P.2d 205, 211 (1972).

41. Id. 208 Kan. at 544-45, 493 P.2d at 211.

42. Id. It is also noteworthy that in reaching its decision, the Court in H&R Block found that the franchise agreement at issue in that case was “more akin to one of employment than to a contract for sale or disposition of a business,” and therefore a restrictive covenant contained in a franchise agreement warranted heightened scrutiny when assessing its reasonableness. Id. 208 Kan. at 546, 493 P.2d at 212.

43. Caring Hearts Personal Home Servs. Inc. v. Hobley, 35 Kan. App. 2d 345, 354-55, 130 P.3d 1215, 1221-23 (2006) (enforcing agreements signed by independent contractor LPN’s not to serve patients they had served under their contracts with plaintiff).

44. 32 Kan. App. 2d at 1058-59, 94 P.3d at 728-29.

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the unequal bargaining positions of an employee as compared to the seller of a business and the fact that an employee, unlike the seller of a business, is unlikely to get any increased compensation for agreeing to adhere to his noncompetition obligations.42 Properly drafted noncompete agreements can protect the employer not only from unfair competition by former employees and persons to whom a business is sold but also against unfair competition by independent contractors.43 Protecting a business from unfair competition requires an examination of whether there are independent contractors who could cripple a business by calling on its clients directly and/or hiring the key employees of the business in order to capture customers for its own benefit.

B. The covenant must be reason ably limited in time, geography and activities The Court in Ristow found a noncompete agreement overbroad where it prohibited Ristow from accepting a position with “any client or center of influence of the employer, or Koch Industries Inc. and its affiliated companies.”44 The Ristow decision might be viewed as one where the court found the activities prohibited rather than the time or geography overbroad.

While Kansas courts have sustained a 10-year, five-mile noncompete restriction and a two-year, 30-mile noncompete restriction for physicians,45 the Court in Graham v. Cirocco, found over-

broad and unenforceable a two-year, 25-mile noncompete provision for a colorectal surgeon.46 This illustrates the overriding point that noncompete cases are highly fact specific, and even within the same profession, courts may reach varying conclusions as to what constitutes a reasonable restriction based on the unique facts of a particular case.

C. Overbroad covenants will generally be modified If a restrictive covenant is overbroad, Kansas courts will typically modify or “blue pencil” the covenant to narrow it to make the covenant enforceable.47 However, a court has discretion as to whether to use its equitable powers to modify the covenant.48 Moreover, a court has no authority to modify a restrictive covenant to create a contract where the parties did not mutually assent to the modification or failed to have a meeting of the minds. Thus, in Idbeis, the Kansas Supreme Court reversed the trial judge’s actions in modifying a non(continued on next page)

45. See Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 (1950); Weber v. Tillman, 259 Kan. 457, 464-65, 467-69, 913 P.2d 84, 90, 92-93 (1996).

46. 31 Kan. App. 2d at 563, 570-72, 569 P.3d at 194, 199-200.

47. E.g., Graham v. Cirocco, supra, 31 Kan. App. 2d at 572, 69 P.3d at 200. In Idbeis, supra, 279 Kan. at 770, 112 P.3d at 90-91, quoting Weber, supra, 259 Kan. at 474, 913 P.2d at 84, the Court explained that “[i]t is the duty of the courts to sustain the legality of contracts in whole or in part fairly entered into, if reasonably possible to do so, rather than to seek loopholes for defeating their intended purposes.”

48. In H&R Block v. Lovelace, 208 Kan. 538, 546-47, 493 P.2d 205, 212-13 (1972), the Court refused to modify a restrictive noncompete that contained no territorial limitation.

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compete agreement by substituting a liquidated damages remedy for injunctive relief because there was no evidence that the parties had agreed to such a modification.49 A careful drafter should take care to include time and geographical restrictions that a court can modify if they are found to be overbroad and also language expressing the parties’ desire for the court to modify a restrictive covenant found to be overbroad such that the covenant can be narrowed to the maximum restriction permitted by law.

D. Consideration Consideration is required for a binding noncompete agreement and can take various forms. For example, consideration can be supplied by making agreement to the noncompete a requirement for initial employment. Consideration can also be supplied by a promotion50 or increase in salary51 or by continued employment.52 When an employer decides to institute noncompete or nonsolicit agreements into its workforce for existing employees, it faces the sometimes difficult question of what to do with a valued existing employee who is unwilling to sign such an agreement. Rather than terminating the employee, an employer may be able to obtain the employee’s agreement to the noncompete by making a promotion, bonus, or raise contingent upon agreement to the noncompete.

IV. Other Legal Issues Arising in the Enforcement of Restrictive Covenants and Preventing Unfair Competition A. Assignment/successor employer In a business environment in which mergers and sales of businesses are now commonplace, an issue that arises with some regularity is whether restrictive covenants entered into between an employee and his original employer can be enforced by a new owner or successor.

In Safelite Glass Corp. v. Fuller, the Kansas Court of Appeals resolved this issue, holding that “in the absence of express language, which limits assignability, covenants not to compete, which do not involve personal and confidential relations are assignable and may be enforced by a subsequent purchaser of a business as an incident of the business.”53 Moreover, pursuant to K.S.A. 17-6709, in the case of a merger, the surviving corporation automatically acquires the rights of the merged corporations to enforce employees’ noncompete agreements.54 It should be noted, however, that although an employer is permitted to include an assignment provision in an employ49. 279 Kan. at 773-74, 112 P.3d at 93-94.

50. Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 315, 657 P.2d 589, 592 (1983).

51. Uarco Inc. v. Eastland, 584 F. Supp. 1259, 1262 (D. Kan. 1984).

52. Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 314-15, 657 P.2d 589, 591, 592 (1983).

53. 15 Kan. App. 2d 351, 359, 807 P.2d 677, 683 (1991).

54. Varney Bus. Servs. Inc. v. Pottroff, 275 Kan. 20, 31, 59 P.3d 1003, 1013 (2002); Equifax Services Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir. 1990) (applying Kansas law).

55. 21 F. Supp. 2d 1280, 1281-82 (D. Kan. 1998).

56. Size Wise Rentals Inc. v. Media/PRN Life Support Servs. Inc., 87 F. Supp. 2d 1194, 1198 (D. Kan. 2000).

57. Flying Cross Check v. Central Hockey League, 153 F. Supp. 2d 1253,

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ment agreement, Kansas courts will carefully scrutinize the assignment language when considering whether to permit a successor company to enforce a restrictive covenant contained in the same employment agreement. In IT Network Inc. v. Shell, the U.S. District Court for the District of Kansas rejected a successor company’s attempt to enforce a restrictive covenant due to an assignment clause in the employment agreement that provided that the agreement would only inure to the benefit of a successor or assignee who obtained “all or substantially all” of the predecessor’s business. Because the successor company had only purchased a “segment” of the predecessor’s business, the court found that the successor had no authority to enforce the restrictive covenant.55 B. Requirements for injunctive relief To obtain injunctive relief, an employer must establish four prerequisites: (1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.56 Irreparable harm may be shown to exist where money damages are inadequate to compensate the wrong or where there are difficulties in the calculation of losses.57 Loss of customers, loss of goodwill, and threats to a business’s viability have all been found to constitute irreparable harm.58 On the other hand, where breach of the noncompete agreement causes the loss of identifiable customers, who had generated a known dollar amount of business, a court can refuse injunctive relief if there is a full, complete, and adequate remedy at law through recovery of calculable money damages.59 C. Liquidated damages in lieu of injunctive relief In Weber, the Kansas Supreme Court recognized the enforceability of a restrictive covenant, which gave the employee the option of not practicing medicine in a particular geographical region for two years or paying his former employer six months’ salary and bonuses as liquidated damages.60 Later, in Varney Business Services v. Pottroff,61 the Court applied the same analysis used in determining whether noncompete agreements are enforceable in enforcing a provision in an employment agreement against former shareholders of a professional association of accountants, which provided that they could compete with their former employer upon payment of 1259 (D. Kan. 2001).

58. Fireworks Spec. v. Premier Pyrotechnics, 86 F. Supp. 2d 1102, 1107 (D. Kan. 2000) (finding irreparable harm due to “extreme difficulty and uncertainty in restoring goodwill among the customers and regaining the business of customers”). See also Zurn Constr. Inc. v. B.F. Goodrich Co., 685 F. Supp. 1172, 1181 (D. Kan. 1988) (finding that irreparable harm can be shown through a “loss of customers, loss of goodwill, and threats to a business’ viability”).

59. Wichita Wire Inc. v. Lenox, 11 Kan. App. 2d 459, 464-65, 726 P.2d 287, 291-92 (1986).

60. 259 Kan. at 459, 475-77, 913 P.2d at 87, 96-97.

61. 275 Kan. 20, 59 P.3d 1003 (2002)

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a percentage of fees earned during five years subsequent to the termination of their employment.62 The Court construed the provision as neither a liquidated damages provision nor a penalty provision but rather an enforceable agreement as to the value of Varney & Associates’ clients.63 If the noncompete agreement contains a liquidated damage provision, it appears that under Kansas law, the remedy for breach of the parties’ contract is either an injunction to enforce the contract or a computation of monetary damages.64 There is no Kansas case law on the subject of whether a court could utilize its equitable power to reduce the amount of a payment that was too high to make it reasonable or whether an unreasonably high payment would make the provision unenforceable. Thus, the careful drafter will not insert a liquidated damages provision that is so onerous that it is likely to be stricken as an unenforceable penalty.

62. 275 Kan. at 24, 34-38, 59 P.3d at 1009, 1015-17. The agreement provided for payment of a declining percentage of fees earned with 35 percent of fees earned payable in the first year after termination of employment and 10 percent in the fourth and fifth years after the termination of employment.

63. 275 Kan. at 38-39, 59 P.3d at 1017.

64. Idbeis, 279 Kan. at 772, 112 P.3d at 92.

65. Idbeis, 279 Kan. at 773-75, 112 P.3d at 93-94.

66. See, e.g., Wichita Wire Inc. v. Lenox, 11 Kan. App. 2d 459, 464-65, 726 P.2d 287, 291-92 (1986), which concluded that the loss of identifiable customers, who had generated a known dollar amount of business, was a calculable injury; thus, there was insufficient evidence to establish

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It is also clear that a court cannot rewrite a noncompete agreement to substitute a liquidated damages remedy for injunctive relief where the parties have not agreed that liquidated damages may substitute for a promise not to compete.65 Thus, careful thought must be given to whether to include as a remedy or as an optional remedy a liquidated damages provision, and what is a reasonable amount if the noncompete or nonsolicit provisions are breached.

D. Actual damages Under Kansas law, breach of a noncompete agreement can give rise to a claim for actual damages, especially where the plaintiff is unable to prove irreparable injury.66 Moreover, where the plaintiff is barred from obtaining injunctive relief because of laches or where injunctive relief would be against the public interest, actual damages can still be recovered.67

irreparable harm that would justifying the entry of a temporary injunction. The court reasoned that where there is a full, complete, and adequate remedy at law through recovery of calculable money damages, the injury is not irreparable and equity will not apply the extraordinary remedy of injunction, citing 42 Am. Jur. 2d, Injunctions § 49.

67. Christenson v. Akin, 183 Kan. 207, 213, 326 P.2d 313, 318-19 (1958) (defendants were barred from affirmative injunctive relief because their claim for breach of a noncompete agreement was barred by the statute of limitations and laches, but they were still permitted to use their counterclaim as a matter of pure defense to reduce any judgment received by plaintiffs herein).

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E. Attorney’s fees Under Kansas law, parties to an employment agreement are permitted to specify the remedies available for a breach of the agreement.68 Accordingly, although no Kansas court has explicitly addressed the issue in restrictive covenant litigation, a Kansas court is likely to enforce an attorney’s fees provision, particularly given the general willingness of Kansas courts to enforce such provisions in other contractual contexts.69 Under the KUTSA, attorney’s fees can be awarded to a plaintiff in instances where “willful and malicious misappropriation exists.”70 Conversely, attorney’s fees can be awarded to a party defending against a claim brought pursuant to the KUTSA in instances in which the claim was brought in bad faith by the plaintiff.71 F. Tortious interference with contract An employer who induces a person to breach his noncompete agreement faces potential liability for tortious interference with contractual relations. Kansas has long recognized that a party who induces or causes a breach of contract will be answerable for damages caused thereby if he acted without justification.72 The elements of tortious interference with contract are: (1) the contract, (2) the wrongdoer’s knowledge thereof, (3) his intentional procurement of its breach, (4) the absence of justification, (5) the resulting damages, and (6) legal (not actual) malice.73 Kansas also recognizes a cause of action for civil conspiracy to procure or induce a breach of contract that renders all conspirators liable to the party damaged by the breach.74 However, corporate officers and employees acting within the scope of their employment (and not as individuals) cannot be held liable for tortious interference with a contract, at least where the corporation has the lawful right to take the action in question.75 G. Breach of the duty of loyalty/faithless servant doctrine Relying largely on agency principles, several courts interpreting Kansas law have held that under Kansas law an employee owes his employer a duty of loyalty. In Fryetech Inc. v. Harris, the U.S. District Court for the District of Kansas noted that under Kansas law employees, as agents of their employer, “have a duty to act solely for the benefit of the employer in all matters within the scope of the … employment, and to avoid conflicts between their duty to their employer and their own self-interest.”76 The court in Fryetech further noted that this duty of loyalty is not limited to corporate officers and direc68. Curtis 1000 Inc. v. Pierce, 905 F. Supp. 898, 903 (D. Kan. 1995); Atchison Casting Corp. v. Dofasco Inc., 889 F. Supp. 1445, 1461 (D. Kan. 1995).

69. See Benedictine College Inc. v. Century Office Products Inc., 868 F. Supp. 1239 (D. Kan. 1994) (holding that contractual provisions allowing for recovery of attorney’s fees in commercial leases are valid and enforceable in Kansas).

70. K.S.A. 60-3323(iii).

71. K.S.A. 60-3323(i). See also Curtis, 905 F. Supp. at 902-903 (rejecting claim for attorneys fees where misappropriation claim was not made in bad faith).

72. Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 168-69, 872 P.2d 252, 257 (1994).

73. Id.; Wichita Clinic P.A. v. Columbia/HCA Healthcare Corp., 45 F. Supp. 2d 1164, 1200 (D. Kan. 1999); PIK 3d 124.91.

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tors, but rather that Kansas case law “speaks of the duties of agents without respect to their exact status.”77 The Kansas Supreme Court has also held that pursuant to the “faithless servant” doctrine an employee who is disloyal to his employer forfeits his right to compensation earned during the period of his unfaithfulness.78 An employee can be “faithless” in a number of ways, including engaging in gross misconduct or misconduct that substantially affects the employment contract, engaging in intentional fraud, stealing or embezzling money from the employer, or committing other criminal offenses against the employer, even if said offenses are not immediately injurious to the employer.79 An employee may also violate his fiduciary duty to his employer, thereby forfeiting his right to compensation owed, by engaging in acts of competition against his employer during the course of his employment.80 While an employee’s mere intent to form or join a business in competition with his employer is unlikely to trigger a violation of the employee’s duty of loyalty, an employee who engages in “substantial planning activit[ies]” or other “overt acts” in furtherance of a “conspiracy to establish a competing business” may be found to have violated his duty of loyalty.81 H. Federal and Kansas computer crime statutes In instances in which a former employee is believed to have misappropriated or accessed information or data stored on the former employer’s computer system, an employer may be able to take advantage of federal criminal statutes that provide civil remedies for certain computer misconduct.

Under the federal Computer Fraud and Abuse Act (CFAA), any person or entity who suffers damage or loss by reason of conduct prohibited by the act is entitled to recover compensatory damages and injunctive relief. Actionable conduct under the CFAA includes: • Accessing a “protected” computer (i.e., one that is used in interstate or foreign commerce or communication)

without permission with the intent to defraud, further ing the fraud, and obtaining anything of value other than the mere incidental use of the computer; • Obtaining information from a protected computer with out permission if interstate or foreign communication is involved; and • Obtaining through unauthorized computer access financial information from a variety of financial institutions.

74. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Ame. v. Cardwell Mfg. Co. Inc., 416 F. Supp. 1267, 1290 (D. Kan. 1976).

75. Clevenger v. Catholic Soc. Serv., 21 Kan. App. 2d 521, 525-27, 901 P.2d 529, 533-34 (1995).

76. Fryetech v. Harris, 46 F. Supp. 2d 1144, 1152 (D. Kan. 1999).

77. Id. 78 Bessman v. Bessman, 214 Kan. 510, 519, 520 P.2d 1210, 1217 (1974).

79. Id. at 1215 (quoting 56 C.J.S., Master and Servant § 105).

80. Burton Enterprises v. Wheeler, 643 F. Supp. 588, 592 (D. Kan. 1986) (holding that sales representative forfeited entire compensation of $12,069.47 under faithless servant doctrine).

81. Id.

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Civil remedies are limited to misconduct that involves (1) loss to one or more persons aggregating at least $5,000 in value; (2) the modification or impairment of the medical examination, diagnosis, treatment, or care of at least one individual; (3) physical injury to any person; (4) a threat to public health or safety; or (5) damage affecting a government computer system used in furtherance of the administration of justice or national security.

Kansas has also criminalized certain conduct involving computers, although without providing corresponding civil remedies. Under K.S.A. 21-3755, each of the following is a felony “computer crime”: • Intentionally and without authorization accessing and damaging, modifying, altering destroying, copying, dis closing, or taking possession of a computer, computer sys tem, or network; • Using a computer, computer system, or network for the purpose of devising or executing a scheme with the in tent to defraud or the purpose of obtaining anything of value by means of false or fraudulent pretense or representation; and • Intentionally exceeding the limits of authorization and damaging, modifying, altering, destroying, copy ing, disclosing, taking, or possession of a computer, computer system, or network.82 It is a misdemeanor to intentionally and without authorization disclose a password or any other “means of access” to a computer, or to access or attempt to access any computer program or property on a computer.83 I. Economic Espionage Act of 1996 The Economic Espionage Act of 1996 (EEA)84 is a federal statute that criminalizes the theft or attempted theft of certain commercial trade secrets.85 The definition of a “trade secret” under the EEA is set forth at 18 U.S.C. § 1839(3) and is similar but not identical to the definition of a “trade secret” under the KUTSA.86 The EEA was used in 2006 to prosecute Coca-Cola Co. employees who tried to sell Coke’s trade secrets to PepsiCo.87 The EEA has also been relied upon by the government in a case involving the disclosure of trade secrets of corporate giant Gillett Co.,88 and in the high-profile prosecution of two foreign nationals who attempted to purchase trade secrets belonging to the Bristol-Myers Squibb Co.89 Although it may be difficult to convince a U.S. attorney 82. K.S.A. 2006 Supp. 21-3755(b).

83. K.S.A. 2006 Supp. 21-3755(c), (d).

84. Pub. L. No. 104-294, 110 Stat. 3490 (codified at 18 U.S.C. 33 1831-39).

85. For a good overview of the EEA, see E. Brecher, Theft of a Trade Secret is Now a Federal Crime, N.Y.L.J., May 7, 2007, at 4, 16-17.

86. Compare 18 U.S.C. § 1839(3) to K.S.A. 60-3320(4).

87. Press Release of the U.S. Attorney, Northern District of Georgia, Oct. 23, 2006; http://www.usdoj.gov/usao/gan/press/2006/10-2306.pdf.

88. USA v. Steven L. Davis, Case No. 3:97-CR-00124, U.S. Dist. Ct., Middle District of Tennessee.

89. USA v. HSU et al., Case No, 2:97-cr-00323, U.S. Dist. Ct., Eastern District of Pennsylvania.

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to prosecute a violation of the EEA unless there is significant provable damages, the potential criminal penalties if convicted under the EEA are severe. A conviction can result in up to 10 years in prison, $250,000 in fines for an individual, and up to $5 million in fines for an organization, criminal forfeiture, and restitution.90 In addition, an attorney representing a person who has potentially violated this statute, needs to be concerned about Fifth Amendment issues if he or she is deposed or testifies at a hearing or trial.

J. Inevitable disclosure doctrine A few courts outside Kansas have recognized the inevitable disclosure doctrine, which is a theory of relief for claims of misappropriation of trade secrets when an employee’s new employment will inevitably lead him to rely on his former employer’s trade secrets.91 Under this doctrine, a plaintiff can obtain relief when (1) the employers in question are direct competitors providing the same or very similar products or services; (2) the employee’s new position is nearly identical to his old one, such that he could not reasonably be expected to fulfill his new job responsibilities without utilizing the trade secrets of his former employer; and (3) the trade secrets at issue are highly valuable to both employers.92 To date, no Kansas case has addressed the inevitable disclosure doctrine.93 V. Defenses to the Enforcement of Noncompete Agreements

A. Prior material breach by the employer Although there does not appear to be a case applying Kansas law on this point, it is likely that a court would find an employer’s material breach of a noncompete agreement to be a valid defense to enforcement of a noncompete agreement. In Alexander & Alexander v. Feldman,94 the U.S. District Court for the District of Kansas applied Missouri contract law and found that to recover on a contract, the plaintiff must first demonstrate its own performance and that a plaintiff could not recover for breach of a noncompete agreement if the plaintiff was the first to breach the contract.95 Moreover, the court went on to reject the argument that defendant had waived the breach by continuing to work for more than four years after the employer breached the agreement by unilaterally changing the compensation in violation of the agreement that provided that changes in compensation were only effective if agreed to by both parties in writing.96 90. 18 U.S.C. §§ 1832(a)(5) and (b), 1834, 1836(a), and the Mandatory Victims Restitution Act of 1966, 18 U.S.C. 3663A. 91. PepsiCo Inc. v. Redmond, 54 F.3d 1262, 1269 (7th Cir. 1995).

92. EarthWeb Inc. v. Schlack, 71 F. Supp. 2d 299, 310 (S.D.N.Y. 1999).

93. Bradbury Co. Inc. v. Teissier-duCros, 413 F. Supp. 2d 1203, 1208-09 (D. Kan. 2006).

94. 913 F. Supp. 1495, 1501 (D. Kan. 1996).

95. Id. at 1501.

96. Id. at 1501-02. The court noted that defendant objected to the changes in his compensation and that the contract provided that waiver of a breach of contract would not operate as a waiver of subsequent breaches, and the plaintiff breached the contract by unilaterally changing the compensation terms year after year.

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Barring enforcement of a noncompete agreement where the employer has committed a prior material breach of the contract would be consistent with general contract law97 and PIK Civ. 3d 124.01-A (defining “plaintiff’s performance or willingness to perform in compliance with the contract” as an essential element to a breach of contract claim). Thus, an employee might have a valid defense to enforcement of a noncompete agreement if the employer materially breached the employment contract by refusing to pay wages at the contract rate or possibly by failing to pay wages required to be paid under federal wage and hour laws.

B. Waiver/estoppel/selective enforcement An issue that arises frequently in restrictive covenant litigation is whether an employer can waive (or be estopped from enforcing) its rights under a restrictive covenant when the employer has failed to enforce similar covenants against other employees. To date, no Kansas court has directly considered this “selective enforcement” defense.98 Nevertheless, it seems likely that an employee seeking to avoid a restrictive covenant by raising a waiver or equitable estoppel type argument will carry a heavy burden. Under Kansas law, equitable estoppel applies only where the acts, representations, admissions, or silence of a party (where there is a duty to speak) induce the first party to believe certain facts exist.99 The party seeking to invoke equitable estoppel must also prove that he reasonably and rightfully relied on the belief that those facts existed and that he would now be prejudiced if the inducing party were allowed to deny the existence of those facts.100 All the elements of equitable estoppel must be sufficiently proven, and the principle will not be applied if the facts of the case are ambiguous or are subject to more than one construction.101 C. Unclean hands In American Fidelity Assurance Corp. v. Leonard,102 the court rejected an unclean hands defense to enforcement of a noncompete agreement where the employee claimed that his former employer had unclean hands because the former employer allegedly terminated him in retaliation for oppos97. 17A AmJur2d Contracts § 685 (2004); Commercial Credit Corp. v.

Harris, 212 Kan. 310, 313, 510 P.2d 1322 (1973) (establishing performance of claimant as a prima facie element for breach of contract claim); In re Estate of Johnson, 202 Kan. 684, 692, 452 P.2d 286 (1969).

98. Courts from other jurisdictions have addressed this issue. See, e.g., Moda Hair Designs Inc., 2006 Ohio App., Lexis 599 (failure to enforce one-year, six-mile noncompete against other hairstylists is a factor that led to refusal to enforce noncompete provision); Sugridev Corp. v. Eye Technology Inc., 648 F. Supp. 661, 698 (D. Minn. 1986) (stating that “it would be inequitable to permit [employer] to now rely on a noncompete agreement, which it has so blithely ignored in the past”).

99 Shaffer v. City of Topeka, 30 Kan. App. 2d 1232, 1237, 57 P.3d 35, 38-39 (2002); Toshiba Master Lease, Ltd. v. Ottawa Univ., 23 Kan. App. 2d 129, 135, 927 P.2d 967, 972 (1996) (citations omitted).

100. Toshiba, 23 Kan. App. 2d at 135, 927 P.2d at 972 (citations omitted).

101. Id. 102. 81 F. Supp. 2d 1115 (D. Kan. 2000).

103. Id. at 1121.

104. See, e.g., Mantek Division of NCH Corp. v. Share Corp., 780 F.2d 702, 707 (7th Cir. 1986) (holding that former employee should be allowed to demonstrate that employer’s actions in directing former employee to engage in commercial bribery constituted unclean hands precluding

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ing age discrimination. The court ruled that the former employee had failed to show that the former employer’s alleged directive to fire older employees was both legally and factually discriminatory.103 However, some courts outside Kansas have been receptive to unclean hands defenses.104 D. The covenant is unreasonable or overbroad A common defense to a noncompete agreement is that the noncompete provisions are unreasonable or overbroad. Establishing this defense is very fact specific with courts taking a careful look at the extent of the protection necessary to prevent unfair competition. For example, in Foltz v. Struxness,105 the Kansas Supreme Court upheld a 10-year noncompete agreement after reducing the 100-mile limitation to a fivemile radius from the city where a surgeon practiced medicine. However, in Graham v. Cirocco,106 the Court struck a two-year, 25-mile noncompete provision for a colorectal surgeon after expressing concern for the public welfare given the shortage of colorectal surgeons.107 Another example of a court striking a noncompete agreement as unreasonable is Allen, Gibbs & Houlik L.C. v. Ristow, where the Court refused to enforce a noncompete agreement that would have barred a certified public accountant working in an employee benefits group from accepting a position with any client or center of influence of the employer or Koch Industries Inc. and its affiliated companies for a six-month period after termination of employment.108 In H&R Block v. Lovelace,109 the Court refused to enforce or to judicially narrow a five-year restrictive noncompete signed by a franchisee that contained no territorial limitation.

By contrast, the court in Sizewise Rentals v. Mediq/PRN Life Support Service,110 enforced a one-year nonsolicit agreement covering customers in a territory consisting of 50 counties in nine states. There is no logical reason why a geographical restriction that is nationwide or even broader would not be enforceable in the proper case if an employer could prove a valid protectable interest in customers or trade secrets on a national or even international basis.111 enforcement of employee’s noncompete); Harrison v. Palm Harbor MRI Inc., 703 So. 2d 1117, 1119 (Fla. 2nd DCA 1997) (holding that a salesperson may have an affirmative defense to enforcement of a noncompete if she can prove that she was sexually harassed); North Pacific Lumber Co. v. Oliver, 596 P.2d 931, 942 (Or. 1979) (“an employer may be guilty of misconduct amounting to unclean hands if the employer uses, or attempts to use, the employment relationship to involve the [employee] in unethical behavior, which injures a third party”).

105. 168 Kan. 714, 215 P.2d 133 (1950).

106. 31 Kan. App. 2d 563, 69 P.3d 194 (2003).

107. 31 Kan. App. 2d at 571-72, 69 P.3d at 199-200. However, the court upheld the two-year, 150-mile, nonsolicitation restriction in the agreement, which prohibited the former employee from soliciting business from the patients or referral sources.

108. 32 Kan. App. 2d at 1052, 94 P.3d at 725.

109. 208 Kan. 538, 546-47, 493 P.2d 205, 212-13 (1972).

110. 87 F. Supp. 2d 1194, 1197, 1200-1201 (D. Kan. 2000).

111. See, e.g., Superior Gearbox Co. v. Edwards, 869 S.W.2d 239, 248 (Mo. App. 1993) (entering a five-year injunction against a former president/CEO prohibiting him from working for a firm anywhere in the U.S. that manufactures or sells gearboxes or uses plunge milling procedures or technologies).

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LEGAL ARTICLE: KANSAS NONCOMPETE AGREEMENTS ...

VI. Conclusion

About the Authors

In an increasingly competitive business environment, restrictive covenants present important and often thorny issues for both employers and employees. For employers it is important to exercise considerable care in drafting reasonable restrictive covenants in order to prevent unfair competition and the loss of customers, employees and trade secrets. Kansas courts have long shown a willingness to enforce reasonable, narrowly tailored restrictive covenants aimed at protecting legitimate business interests, but will not hesitate to narrow or refuse to enforce provisions that unduly overreach legitimate protectable interests.

For those who represent employees or entities hiring employees, it is important to be alert to the wide array of possible defenses to such agreements, including a number of defenses that have not yet been fully considered by courts interpreting Kansas law. Finally, when clients hire new employees, it is imperative to take appropriate measures to ensure that such employment does not violate valid noncompete, nonsolicit, or nondisclosure agreements or the new employer will have potential legal liability. n

John Vering is a partner in the employment and labor and business litigation practice groups at Armstrong Teasdale LLP, Kansas City, Mo. Vering received his B.A. in 1973 from Harvard University and his J.D. in 1976 from the University of Virginia Law School, where he was a member of the board of editors of the Virginia Law Review.

He is admitted to practice in state and federal courts in Kansas and Missouri. He has an extensive practice in noncompete and trade secret litigation and counseling and is a frequent speaker on noncompete, trade secret, and employment matters.

Fall Provides (Continued from Page 20) C. Conclusion Since both the A201-2007 family and the ConsensusDOCS were created with input from a number of often divergent viewpoints, it goes without saying that no group is going to be entirely happy with either set of documents. Given the acrimony sometimes caused by the current selection of oft-biased form agreements, this is perhaps a good thing. Regardless, it is worth taking the time now to become familiar with them, as they are sure to quickly become the new industry standard. n

David Jermann, Kansas City, Mo., graduated Phi Beta Kappa with a degree in journalism from the University of Kansas in 1996 and earned his J.D. from the George Washington University in 1999. Since graduating from law school he has been an associate in the litigation department of Armstrong Teasdale LLP. He is admitted to practice in state and federal courts in Kansas and Missouri and handles noncompete, trade secret, and franchise matters.

M. Martin Mercer JD, CPA, FCPA, CFE Litigation Support, Expert Witness Services Forensic Accounting, Financial Fraud Investigations

mmercer@b2bcfo.com (303) 621-5825

About the Author Cody G. Robertson is an associate with Goodell, Stratton, Edmonds & Palmer LLP in Topeka, where he focuses his practice on general business, transactional, real estate, and construction law.

A Topeka native, Robertson received both his bachelor’s degree, 2002, and juris doctorate, 2006, from Washburn University.

Editor’s note: This article first appeared in the 2007 winter edition of the Nuts and Bolts newsletter, which is published by the KBA Construction Law Section.

If you are interested in joining this or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696.

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Mark Your Calendars KBA Annual Meeting June 19-21, 2008

Capitol Plaza Hotel, Topeka JANUARY 2008 – 31

Appellate Decisions All opinion digests are available on the KBA members-only Web site at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your e-mail address or other contact information has changed, please contact bar services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ Web site at www. kscourts.org for the full opinions.

Supreme Court Attorney Discipline IN RE DAVID R. ALIG ORIGINAL PROCEEDING IN DISCIPLINE PUBLISHED CENSURE NO. 98,536 – OCTOBER 26, 2007 FACTS: Respondent was admitted to practice in Missouri in 1979 and in Kansas in 1996, with a registration address in Overland Park. At a disciplinary hearing, he stipulated to violating KRPCs 1.1 (competence), 1.5 (attorneys fees), and 8.4(d) (misconduct prejudicial to the administration of justice) and did not object to the addition of a Rule 5.5 (unauthorized practice of law) violation.

The hearing panel concluded as a matter of law that respondent violated these four rules based on his handling of a probate estate in which he was paid nearly $100,000 in fees without the approval of the probate court and his practicing law for more than a year after his administrative suspension. The panel agreed with the disciplinary administrator’s request for published censure HELD: No exceptions were filed, and the Court adopted the findings of fact, conclusions of rules violations and recommended sanction.

IN RE PETER J. ANTOSH ORIGINAL PROCEEDING IN DISCIPLINE PUBLISHED CENSURE NO. 98,537 – OCTOBER 26, 2007 FACTS: Respondent, who practices in Dodge City, was admitted in 2003. The disciplinary administrator’s office filed a formal complaint alleging violations of KRPCs 1.7(a) (conflict of interest), 8.4(b) (criminal misconduct), and 8.4(d) (misconduct prejudicial to the administration of justice).

The hearing panel found clear and convincing evidence that respondent represented two adverse parties to a protection from abuse order without their consent after consultation and that he was charged with assault, disorderly conduct, and obstruction when he was retained to investigate possible law enforcement abuse at a local tavern. The disciplinary administrator’s office recommended published censure, and this request was adopted by the panel.

HELD: The Court adopted the factual and legal findings of the hearing panel as well as the recommended discipline.

IN RE DORSEY EVANS ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 98,842 – OCTOBER 26, 2007 FACTS: Respondent was admitted to practice law in Kansas in 1959, the District of Columbia (D.C.) in 1960 and Maryland in 1985. He allowed his Kansas license to lapse in 1987 when he was 32 – JANUARY 2008

administratively suspended. The complaint filed in Kansas arose out of a final disciplinary adjudication in D.C. and alleged violations of KRPCs 1.1 (competence), 1.7(b) (conflict of interest), and 8.4(d) (misconduct prejudicial to the administration of justice).

The hearing panel found clear and convincing evidence, based on the proceedings in other jurisdictions, that respondent engaged in a conflict of interest when his title company was retained to assist a widow in establishing her title to real estate. The widow also retained him to help her obtain clear title to the home inherited by her husband (deceased) and his brother, who was incarcerated. Respondent incompetently filed renunciations of interest in the property by other heirs that later were revealed to have been forged. Despite suspensions from practice for less than six months in D.C. and Maryland, the hearing panel recommended indefinite suspension.

HELD: The Court adopted the findings of fact and rules violations and agreed with the panel that respondent’s failure to comply with registration rules in Kansas for the past 20 years justified the harsher sanction.

IN RE RICHARD MATTHEW LANE ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 99,078 – NOVEMBER 29, 2007 FACTS: Respondent, a private practitioner from Wichita, wrote to the clerk of the appellate courts surrendering his license to practice law pursuant to Kansas Supreme Court Rule 217. At the time of the surrender, a review was pending before the Court on the final hearing report of a panel of the Board for Discipline of Attorneys.

A unanimous panel found violations of KRPCs 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.16 (terminating representation), 3.2 (failing to expedite litigation), and 8.1 and SCR 207 in failing to provide written responses to the initial complaints.

HELD: The Court reviewed the files of the disciplinary administrator’s office and found that the surrender should be accepted and the respondent disbarred.

IN RE FREDERICK J. PETZOLD ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 98,056 – OCTOBER 26, 2007 FACTS: Respondent was admitted in Kansas in 1965, and his last registration address was Overland Park. Beginning in 1980, respondent’s license has been administratively suspended and then reinstated four times for failure to pay his annual registration fee and comply with continuing legal education requirements. He has been suspended since November 1999.

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The hearing panel concluded that respondent engaged in the unauthorized practice of law in August 2005, when he accepted representation of a client, wrote a demand letter on her behalf to a city attorney, and contacted the attorney by telephone to discuss the demand. When the city attorney learned respondent’s license remained suspended, he filed a disciplinary complaint enclosing the demand letter. The panel found respondent should have declined the representation due to his license status, engaged in the unauthorized practice of law, and failed to file an answer to the formal complaint. Respondent also failed to appear at the panel hearing.

The panel agreed with the disciplinary administrator’s office’s request for indefinite suspension. Respondent also failed to appear before the Supreme Court.

HELD: The Court adopted the uncontested findings and conclusions of the panel and a majority agreed that indefinite suspension was the appropriate sanction. A minority of the Court would disbar the respondent.

IN RE KIEHL RATHBUN ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 98,608 – OCTOBER 26, 2007 FACTS: Respondent, a private practitioner from Wichita, was admitted to practice in Kansas in 1975. A hearing panel was convened on two disciplinary complaints. The panel found that respondent failed to represent his client diligently in a post-divorce matter and engaged in ex parte contact with the court to obtain an order based on false information. In the other case, respondent incompetently represented a criminal defendant at trial and sentencing and failed to proceed or withdraw after filing a notice of appeal.

The panel found clear and convincing evidence of violations of KRPCs 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (attorney fees), 1.16 (terminating representation), 3.3(d) (candor to the court), 8.4(d) (misconduct prejudicial to the administration of justice), and SCR 211(b) (formal hearings). In recommending indefinite suspension, the panel noted five prior informal admonitions and two periods of supervised probation as aggravating factors.

HELD: Respondent failed to appear before the Supreme Court.

The Court accepted the findings of fact and conclusions of rules violations and noted the recommendation of discipline was advisory only. The Court considered a pattern of misconduct involving 21 separate cases spanning a decade, concluded that attempts at probation and rehabilitation have failed and ordered respondent disbarred.

IN RE DENNIS D. WEBB ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 98,538 – OCTOBER 26, 2007 FACTS: Respondent, a private practitioner from Wichita, was admitted in 1978. A disciplinary hearing was conducted based on complaints from three separate clients. The formal complaint alleged respondent was not diligent, failed to communicate, engaged in a prohibited transaction, failed to terminate representation properly, and failed to cooperate in the investigation of the complaints.

The hearing panel found violations of KPRCs 1.3 (diligence), 1.4 (communication), 1.16(d) (terminating representation), and 8.1(b) (cooperation with the disciplinary investigation) and SCRs 207 and 211 for failure to provide written responses to the investigation and the formal complaint. The panel found five aggravating factors and no mitigating factors present and recommended indefinite suspension.

HELD: The Court adopted the factual findings and conclusions of rules violations and ordered respondent to be indefinitely suspended, noting that a minority of the Court would impose disbarment.

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Civil CLASS ACTION, JURY INSTRUCTIONS, AND DAMAGES GILLEY ET AL. V. KANSAS GAS SERVICE CO. ET AL. RENO DISTRICT COURT – AFFIRMED NO. 94,570 – OCTOBER 26, 2007 FACTS: A class of business owners, including Gilley, in Reno County, Kan., sought damages against ONEOK Inc., Mid-Continent Market Center Inc., and Western Resources Inc. for profits lost as a consequence of the defendants’ negligence, which permitted natural gas to escape from the Yaggy Field gas storage facility in Hutchinson. The jury found ONEOK and Mid-Continent at fault, but determined that the business owners had suffered no damages.

ISSUES: (1) Class action, (2) jury instructions, and (3) damages HELD: Court found no err in the jury instructions given in the case. Court stated that in a class action, the named representatives of the class assume the burden of proving the total, class-wide damages, rather than the individual damages of each member of the class. Where a putative member of a class testifies about damages, which are unique to that witness, the trial judge has the discretion to instruct the jury that the witness’s experience is not to be considered common and typical of the damages suffered by all class members.

STATUTE: K.S.A. 60-406 CLASS ACTION, PHYSICAL INJURY TO REAL PROPERTY, INTERFERENCE WITH USE OF REAL PROPERTY, NUISANCE, NEGLIGENCE, AND DIMINUTION IN MARKET VALUE OF REAL PROPERTY SMITH ET AL. V. KANSAS GAS SERVICE CO. ET AL. RENO DISTRICT COURT – REVERSED AND REMANDED WITH INSTRUCTIONS NO. 94,602 – OCTOBER 26, 2007 FACTS: Reno County real property owners sued the owners/operators of the Yaggy Gas storage facility in Hutchinson after explosions occurred in 2001 as a result in a leak in the casing of a well that was part of the Yaggy facility. They claimed diminished property value. The district court denied the defendants’ summary judgment motions finding that genuine issues of material fact existed, such as whether there was a physical intrusion of gas upon or under the plaintiffs’ properties. The jury awarded $5 million in damages, assigning 80 percent fault to ONEOK, 20 percent to Mid-Continent Market Center, and 0 percent fault to Western Resources. The jury found no punitive damages.

ISSUES: (1) Class action, (2) physical injury to real property, (3) interference with use of real property, (4) nuisance, (5) negligence, and (6) diminution in market value of real property HELD: Court held that the plaintiff class failed to prove that the real property in the class suffered physical injury from the escaped gas, or that class-wide, the real property owners suffered an interference with the use and enjoyment of their property because of the gas contamination. Court held that a property owner cannot collect damages under either a negligence or nuisance theory for diminution in the property’s market value caused by the stigma or market fears resulting from an accidental contamination where the property owner has not proved either a physical injury to the property or an interference with the owner’s use and enjoyment of the property.

Court reversed with instructions to entered judgment as a matter of law in favor of the defendants.

STATUTES: K.S.A. 20-3017 and K.S.A. 60-250

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HABEAS CORPUS GUILLORY V. STATE WASHINGTON DISTRICT COURT – APPEAL DISMISSED NO. 96,610 – NOVEMBER 2, 2007 FACTS: Guillory convicted on nolo contendere plea. He filed 60-1507 motion, claiming he was never informed he could appeal his sentence, claiming ineffective assistance of counsel, and claiming his plea was coerced. District court summarily denied the motion.

Guillory appealed. Court of Appeals issued show cause order why the appeal should not be dismissed because notice of appeal was not timely filed. Guillory claimed his untimely appeal should be permitted as an exception under State v. Ortiz, 230 Kan. 733 (1982), because the district court summarily dismissed the motion without appointment of counsel and never advised him of his right to appeal the denial of the 60-1507 motion. Court of Appeals held none of the Ortiz exceptions applied and dismissed the appeal. Supreme Court granted Guillory’s petition for review.

ISSUE: Appellate jurisdiction HELD: Where a defendant files an untimely appeal from the summary denial of a 60-1507 motion, the exceptions in Ortiz are inapplicable. Appeal is dismissed because appellate courts have no jurisdiction in this untimely appeal. Case distinguished from those involving situations where person seeking untimely appeal had statutorily-mandate appointed counsel and appointed counsel failed to advise client of statutory right of appeal.

STATUTES: K.S.A. 2006 Supp. 22-4506(c); K.S.A. 2003 Supp.

22-4522(e)(4); and K.S.A. 21-3401(a), 22-3424(f ), 60-1507, -2103(a) INCOME TAX, KPERS CONTRIBUTIONS, AND CONSTITUTIONALITY OF STATUTE IN RE TAX APPEAL OF WEISGERBER KANSAS BOARD OF TAX APPEALS – AFFIRMED NO. 96,550 – OCTOBER 26, 2007 FACTS: The Board of Tax Appeals (BOTA) upheld an assessment by the Kansas Department of Revenue of additional individual income tax, penalties, and interest to Weisgerber for tax years 1999, 2000, and 2001 in the total amount of $577, based upon his failure to add back to his adjusted gross income all contributions to the Kansas Public Employees Retirement System (KPERS) that were picked up by his employer the League of Kansas Municipalities.

Weisgerber claimed that the statute requiring him to add back the KPERS contributions is unconstitutional.

ISSUES: (1) Income tax, (2) KPERS contributions, and (3) constitutionality of statute HELD: Court rejected Weisgerber’s argument that in requiring an add back to adjusted gross income for KPERS participants, while excluding any such add back for similar contributions to tax deferred plans for other public employees, the statute impermissibly discriminated against KPERS participants in violation of the Equal Protection clauses of the state and federal constitutions. Court held that Weisgerber’s proposed class of “all public employees” is far too broad in defining those who are similarly situated and there was a rational basis to exclude other public employees.

STATUTES: K.S.A. 21-5005; K.S.A. 20-2603, -3018(c); K.S.A. 74-2426(c)(3), -4919, -4965; K.S.A. 77-621(c)(1); and K.S.A. 79-32,117(b)(vi) PARENT AND CHILD IN RE K.M.H. SHAWNEE DISTRICT COURT – AFFIRMED NO. 96,102 – OCTOBER 26, 2007 FACTS: Case involves existence and extent of parental rights of known sperm donor to twins born through artificial insemination.

Mother filed child in need of care (CINC) petition to establish 34 – JANUARY 2008

that donor father had no parental rights under Kansas law. Donor claimed a verbal agreement with children’s mother to act as twins’ father, and sued for paternity determination. District court consolidated the actions and sustained mother’s motion to dismiss. It found Kansas law applied, thus K.S.A. 38-1114(f ), which required written agreement between donor and woman to establish donor’s paternity, was controlling. It also found the statute was constitutional. Donor appealed, claiming: (1) Missouri rather than Kansas law applied, (2) K.S.A. 38-1114(f ) cannot be constitutionally applied to a known sperm donor, (3) statute did not apply because mother rather than donor delivered donor’s sperm to a licensed physician, (4) statutory requirement for written agreement was satisfied by mother’s CINC petition naming donor as father, and donor’s paternity action, (5) presumption of paternity in K.S.A. 38- 1114(a)(4) should control over K.S.A. 38-1114(f ), and (6) mother tricked donor and donor was unaware of statutory requirement for a written agreement.

ISSUES: (1) Choice of law, (2) constitutionality of K.S.A. 381114(f ), (3) “provided to a licensed physician,” (4) “unless agreed to in writing,” (5) parental rights under K.S.A. 38- 114(a)(4), and (6) equity HELD: Under facts of case, where parties are Kansas residents; any agreement existing between them was arrived at in Kansas; promises supported by consideration were exchanged in Kansas and delivered upon in Kansas; and the subject children were born in and reside in Kansas, Kansas law applies despite fact that the artificial insemination was performed at a Missouri clinic.

Issue of first impression in Kansas and nation. The requirement of K.S.A. 38-1114(f ), that any opt-out agreement between an unmarried mother and a known sperm donor intended to avoid the statutory bar against the paternity of the donor must be in writing, did not result in an equal protection or due process violation when applied to donor in this case.

K.S.A. 38-1114(f ) does not require a sperm donor to provide his sperm directly to a physician performing an artificial insemination.

Under facts of case, the CINC petition and paternity petition did not, either individually or together, satisfy the K.S.A. 38-1114(f ) requirement of a written agreement between the parties.

K.S.A. 38-1114(f ), more specific to cases involving artificial insemination using donor sperm, controls over the general presumption of paternity set out in K.S.A. 38-1114(a)(4).

Under facts of case, the sperm donor may not pursue equitable arguments not pursued in district court or in his opening appellate brief. Moreover, the appellate record contains no evidence to support assertions of nefarious conduct by the recipient.

CONCURRING (McFarland, C.J.): Concurs with majority’s conclusion that K.S.A. 38-1114(f ) is constitutionally permissible and operates to bar donor in this case from asserting parental rights.

Statute examined as a whole, with subsection (f ) aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which the statute applies.

DISSENT (Caplinger, J.) (assigned): Would find K.S.A. 381114(f ) unconstitutional as applied to donor in this case as it takes away his fundamental rights to parent his children without due process of law. Would remand for consideration of all evidence relevant to the existence of an agreement between the parties.

DISSENT (Hill, J.) (assigned): Joins in Judge Caplinger’s dissent, and also questions who speaks for the children in these proceedings.

Operation of K.S.A. 38-1114(f ) barred a decision based on their best interests.

STATUTES: K.S.A. 2006 Supp. 84-1-201(3) and (46); and K.S.A. 38-1110 et seq., -1114, -1114(a)(4), -1114(f ), -1115(a)(1), -1501 et seq., -1531, 60-256

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SERVICE OF PROCESS AND UNIQUE CIRCUMSTANCES FINLEY V. ESTATE OF DEGRAZIO, ET AL. HARVEY DISTRICT COURT – AFFIMRED COURT OF APPEALS – REVERSED NO. 94,698 – NOVEMBER 2, 2007 FACTS: Finley received medical treatment from the defendants in October 2002. She filed suit in 2004 alleging medical malpractice.

Finley’s counsel advised the clerk that her law office would effect service in lieu of using the county sheriff’s office. The death of Finley complicated the procedure of the case. The district court granted a 30-day extension to obtain service of process on defendants and the plaintiffs timely effected service. However, a subsequent district judge ruled that Finley had not shown the requisite good cause for the extension and set aside the order. Consequently, plaintiff’s action was not timely commenced and was dismissed. The Court of Appeals applied the unique circumstances doctrine to save Finley’s service of process and her lawsuit.

ISSUES: (1) Service of process and (2) unique circumstances HELD: Court stated that where plaintiff’s counsel had admitted that untrue, “boilerplate” statements were supplied to the district court in her proposed order for extending time for service of process on defendants under K.S.A. 60-203(a)(1); where counsel provided no information to the court other than the order; and where the court then signed the order in reliance upon the truthfulness of the statements contained there to establish the requisite statutory good cause for the extension. The court held that it could not condone such a practice by providing relief through application of the unique circumstances doctrine.

STATUTES: K.S.A. 20-3018(b); K.S.A. 60-203(a)(1), -211, -513(a)(7); K.S.A. 59-710; and K.S.A. 65-4908

Criminal STATE V. ARAUJO SEDGWICK DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 94,831 – NOVEMBER 2, 2007 FACTS: In appeal from his conviction, Araujo argued the trial court erroneously admitted out-of-court statements given to police officers during 911 call and during the investigation prompted by the call. Araujo claimed the use of these testimonial out-of-court statements against him violated his rights under the Confrontation Clause. Court of Appeals affirmed, 36 Kan. App. 2d 747 (2006), holding that statements made by person who made 911 call were not testimonial, and that statements were not offered for truth of the matter asserted and therefore were not hearsay. Supreme Court granted Araujo’s petition for review.

ISSUE: Confrontation clause HELD: No extensive analysis required of whether 911 caller’s statements were offered for truth of the matter. Because the evidence was admitted to establish whether officers were justified in detaining Araujo, the witnesses against Araujo were the officers and not the 911 caller. That portion of Court of Appeals’ decision concluding the statements were not hearsay is affirmed. From that point, Court of Appeals’ analysis of whether statements were testimonial is dicta.

Confrontation Clause does not apply to nonhearsay statements, thus it does not matter whether the statements were testimonial, and the Supreme Court refrains from discussing the issue.

STATUTES: K.S.A. 2006 Supp. 60-460; and K.S.A. 20-3018(b), 60-406, -2101(b)

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STATE V. COSBY DOUGLAS DISTRICT COURT REVERSED AND REMANDED NO. 94,609 – NOVEMBER 9, 2007 FACTS: In the early morning hours of April 4, 2004, seven individuals witnessed Cosby fatally shoot Robert Martin. The contested issue at trial was whether Cosby shot Martin while attempting to defend his friend, Alrick “Tin Tin” Johnson. The district court admitted a statement made after Cosby invoked his right to speak with his attorney, allowed the state to inform the jury that Cosby had invoked that right, admitted testimony attacking Cosby’s character, and permitted the prosecutor to suggest to the jury that premeditation can occur instantaneously. The jury convicted Cosby of premeditated first-degree murder.

ISSUES: (1) Suppression, (2) Fifth Amendment, (3) character evidence, (4) prosecutorial misconduct, and (5) cumulative error HELD: Court held it was harmless error to admit Cosby’s statement that the gun he used in the shooting was in a safe place. Court stated that Cosby never disputed that he killed the victim with the gun and seven persons saw him do so. Evidence that Cosby knew the location of the gun after the shooting was of no probative value to the jury on the true contested issue at trial: Cosby’s intent or justification for killing Martin. Court held that under the facts of this case, the prosecutor knowingly exceeded the scope of an earlier district court ruling and violated Doyle v. Ohio, 426 U.S. 610, when, in addition to clarifying why officers did not follow up on defendant’s unsolicited statements, the prosecutor impeached defendant with his post-arrest silence. Court stated that in discussing premeditation, prosecutors must avoid forms of the word “instant” or any synonym conveying that premeditation can develop instantaneously. Under the facts of this case, Court held the prosecutor’s statement suggesting that premeditation could be instantaneous was outside the considerable latitude given a prosecutor in discussing the evidence. Court held the district court did not abuse its discretion in admitting rebuttal testimony that contradicted defendant’s testimony and related to the material issues of motive, plan, intent, and state of mind. Court held Cosby was entitled to a new trial.

DISSENT: C.J. McFarland concurred in part and dissented from the majority’s decision reversing the conviction based on the prosecutorial misconduct. McFarland stated that to say the evidence of guilt was overwhelming was an understatement, instead “it was more like a massive tsunami” and any error was harmless beyond a reasonable doubt.

STATUTE: K.S.A. 60-261, -404, -420, -445, -446, -447(b) STATE V. GARCIA SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 93,964 – OCTOBER 26, 2007 FACTS: 2004 charges filed in “cold case” after DNA testing of cigarette butts at scene matched to Garcia. Garcia convicted of 1995 rape and felony murder, and acquitted on attempted rape charge.

Garcia appealed, claiming: (1) rape conviction violated Ex Post Facto Clause because five-year limitations period had expired prior to 2001 enactment of statute that extended period for discovery of identity through DNA evidence, (2) district court erred in allowing State to admit evidence of Garcia’s 1997 convictions of rape and aggravated criminal sodomy as proof of Garcia’s intent and identity, (3) insufficient evidence supported his conviction for felony murder, and (4) convictions were multiplicitous and violated double jeopardy.

ISSUES: (1) Ex Post Facto Clause, (2) admission of K.S.A. 60455 evidence, (3) sufficiency of evidence, and (4) double jeopardy JANUARY 2008 – 35

HELD: Under facts, Ex Post Facto Clause issue is addressed despite not being raised below because consideration was necessary to serve ends of justice and prevent the denial of fundamental rights.

Application of the amended K.S.A. 21-3106 in this case resurrects a previously time-barred prosecution and violates the Ex Post Facto Clause. Statute is not unconstitutional on its face, but may extend limitations period only for offenses not time barred at the effective date of the amendment. Garcia’s rape conviction is reversed.

Under facts of case, no error to admit evidence of Garcia’s prior crimes to prove identity under K.S.A. 60-455. Identity was material and disputed, and detailed review of facts supports district court’s finding of similarity and its weighing of probative value and prejudice.

Felony murder charge is not barred as matter of law after underlying rape charge was barred by Ex Post Facto Clause. Sufficient evidence supports Garcia’s conviction for felony murder based upon attempted rape. Felony murder conviction is affirmed.

Double jeopardy claim is moot.

STATUTES: K.S.A. 21-3106, -3106 subsections (1), (4) and (7), -3401, -3401(b), -3501(1), -3502, 21-3604, 22–3208(4), 60-401, -407(f ), -455; and K.S.A. 2001 Supp. 21-3106(4) and (7)(a) STATE V. SAPPINGTON WYANDOTTE DISTRICT COURT – AFFIRMED NO. 94,415 – NOVEMBER 2, 2007 FACTS: Sappington convicted of three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. Two months later he was convicted of first-degree felony murder and attempted aggravated robbery for a different episode. His separate published appeal in that matter is decided this date with similar issues regarding assistance of counsel in the two cases, which were continued over a three-year period due to Sappington’s intermittent periods of competency and incompetency. In the instant appeal Sappington claimed the district court erred in: (1) failing to instruct the jury on the defense of voluntary intoxication where there was evidence of Sappington’s PCP use, (2) refusing to grant Sappington’s multiple requests for new counsel, (3) refusing to allow defense evidence of Sappington’s mother’s schizophrenia, and (4) not declaring a mistrial after state began to play videotape of Sappington’s confession in his other case.

ISSUES: (1) Jury instruction on voluntary intoxication, (2) requests for new counsel, (3) evidence of mother’s schizophrenia, and (4) mistrial HELD: No error in failing to instruct on voluntary intoxication. Under facts, a sua sponte instruction on voluntary intoxication would run the considerable risk of improperly interfering with Sappington’s chosen mental disease or defect defense and resultant trial strategy.

No abuse of discretion in denying motions for replacement counsel. Under facts, district court had reasonable basis for believing the attorney-client relationship had not deteriorated to point where defense counsel could no longer effectively aid Sappington in the fair presentation of his defense. No “justifiable dissatisfaction” with counsel is demonstrated.

Under facts, no abuse of discretion in limiting testimony of mother’s symptoms where testimony was cumulative, and where Sappington did not establish that mother’s behavior was the exclusive result of schizophrenia.

Under facts, no showing that Sappington’s substantial rights to a fair trial were prejudiced by the brief showing of videotape of Sappington wearing orange jail suit instead of street clothes. Although playing the beginning of the wrong videotaped confession violated the court’s order in limine, there was no showing that the facts elicited substantially prejudiced Sappington.

36 – JANUARY 2008

STATUTES: K.S.A. 2006 Supp. 22-3414(3); and K.S.A. 213107(3), -3298(2), -3491, 22-3219, -3220, -3423(1), -3601(b)(1), 60-401(b), -407(f ) STATE V. SAPPINGTON WYANDOTTE DISTRICT COURT – AFFIRMED NO. 94,416 – NOVEMBER 2, 2007 FACTS: Sappington convicted of first-degree felony murder and attempted aggravated robbery. Two months earlier in separate episode he was convicted of three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. His separate published appeal in that matter is decided this date with similar issues regarding assistance of counsel in the two cases, which were continued over a three-year period due to Sappington’s intermittent periods of competency and incompetency. In the instant appeal Sappington claimed the prosecutor committed reversible misconduct during closing argument by stating a reasonable belief standard. He also claimed the district court erred in denying his motion for a change of judge, in admitting certain autopsy photographs, and in denying Sappington’s requests for new counsel.

ISSUES: (1) Prosecutorial misconduct, (2) recusal, (3) admission of autopsy photographs, (4) motions for new counsel, and (5) requests for new counsel HELD: Under facts, prosecutor’s misstatement in closing argument was improper but not reversible error. Cases involving “reasonable doubt” statements by prosecutors are surveyed.

Under facts, no error in denying Sappington’s motion for change of judge based on judge’s comments during sentencing in Sappington’s earlier triple murder case. Even if a duty to recuse could be shown, no bias or prejudice at trial or sentencing in instant case is demonstrated.

Photographs were used to prove manner of death and to explain medical testimony. No abuse of discretion in admitting this evidence.

No abuse of discretion in denying motions for replacement counsel. Under facts, district court had reasonable basis for believing the attorney-client relationship had not deteriorated to point where defense counsel could no longer effectively aid Sappington in the fair presentation of his defense. No “justifiable dissatisfaction” with counsel is demonstrated.

STATUTES: K.S.A. 2006 Supp. 20-311d sections (a), (b), and (c)(5); and K.S.A. 22-3601(b)(1), 60-261, -404

Forensic Document Examiner Plum Creek Forensic Laboratory, LLC

Darla McCarley-Celentano P.O. Box 21 Castle Rock, CO 80104-0021 Phone/Fax: (303) 663-2450 Cell Phone: (303) 229-8002 E-mail: rdacelentano@att.net

Specialization: Identification and/or elimination through examination and comparison of handwriting, typewriters, photocopiers, printing processes, paper and inks. Forensic document apprenticeship with the Colorado Bureau of Investigation.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

Court of Appeals Civil HABEAS CORPUS SCOTT V. WERHOLTZ JOHNSON DISTRICT COURT – AFFIRMED NO. 96,601 – NOVEMBER 21, 2007 FACTS: During investigation of burglary, DNA taken from Scott with a warrant was matched to unsolved rape case. In bench trial on stipulated facts, district court denied Scott’s motion to suppress the DNA evidence in both cases. Scott’s conviction on rape, aggravated criminal sodomy, and burglary charges in the two criminal cases were affirmed in unpublished opinion. Following district court’s summary denial of post-conviction relief under K.S.A. 601507, Scott appealed claiming: (1) district court should have appointed counsel and held a hearing to determine Scott’s claim that trial counsel was ineffective in allowing Scott to proceed to bench trial on stipulated facts, (2) appellate counsel was ineffective in failing to raise claim that use of the lawfully obtained DNA evidence to compare to unsolved cases violated Scott’s privacy rights under Fourth Amendment, and (3) trial court lacked jurisdiction in the underlying criminal case because no complaint or information was filed after the preliminary hearing.

ISSUES: (1) Ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, and (3) criminal court’s jurisdiction HELD: Trial counsel was not deficient in allowing Scott to proceed to bench trial on stipulated facts. Record shows Scott agreed to that course of action and fully understood the consequences. No error to summarily deny the post-conviction motion without a hearing or appointment of counsel.

Fourth Amendment DNA privacy issue has not yet been addressed by Kansas Supreme Court. Applying State v. Hauge, 103 Hawaii 38, 79 P.3d 131 (2003), to facts of this case, no privacy interest persisted in Scott’s blood sample and DNA profile once law enforcement lawfully obtained that evidence through a valid search warrant. The evidence could be used for identification purposes in the investigation of other crimes. Because issue has no merit, Scott was not prejudiced by counsel’s failure to raise this argument on direct appeal.

Trial court had jurisdiction to convict Scott of the charged offenses. Giving effect to both sentences in K.S.A. 22-2905(1), a prosecutor is not required to file a second complaint or any information after the defendant is bound over trial when the prosecutor is not amending the original charges. When Scott was bound over for trial, the state did not amend the charges, and the original complaints served as the formal charging document in the case.

STATUTES: K.S.A. 2006 Supp. 22-2902(6), -3201(b); and K.S.A. 22-2905, -2905(1), -3201, 60- 1507, -1507(b) HABEAS CORPUS, SEXUAL PREDATOR TREATMENT PROGRAM, AND DUE PROCESS WILLIAMS V. DESLAURIERS ET AL. PAWNEE DISTRICT COURT – DISMISSED NO. 97,556 (MOTION TO PUBLISH OPINION, ORIGINALLY FILED SEPT. 7, 2007) FACTS: In August 2003, Williams was committed to the Sexual Predator Treatment Program (SPTP) at the Larned State Hospital.

In 2006, Williams’ room was searched and several adult DVD movies were seized. Williams was reduced back to level 1 in the program, THE JOURNAL OF THE KANSAS BAR ASSOCIATION

and he had to retake several classes. Williams refused to disclose any information about how he obtained the movies. An investigation into another resident revealed this information. Williams alleged that he was told that he had to take a polygraph test. Williams sent a grievance letter to Eric Fox, the director of consumer relations for the Larned State Hospital, alleging deprivation of due process rights and that use of the polygraph test was improper and illegal.

Fox advised Williams to participate in the treatment program. Williams filed a K.S.A. 60-1501 petition alleging deprivation of due process rights. DesLauriers (the clinical director of the SPTP ) and Herrman (the program director of the SPTP ), moved to dismiss.

The trial court conducted a full evidentiary hearing and determined that Williams was seeking declaratory or injunctive relief and the Kansas Judicial Review Act (KJRA) provided the exclusive means.

The trial court dismissed Williams’ case under the Uniform Declaratory Judgments Act. The trial court found the actions of the SPTP administrators were compatible with the legitimate treatment team goals relating to discipline and behavior modification and the treatment of patients committed to the SPTP. ISSUES: (1) Habeas corpus, (2) SPTP, and (3) due process HELD: Court stated that Williams is seeking a declaratory judgment or an injunction against Social and Rehabilitation Services (SRS) because of SRS’s alleged failure to establish a formal disciplinary procedure for the SPTP. Court held the KJRA is the exclusive means of judicial review of this action, Williams failed to file his action under the KJRA, and the action was in the wrong forum.

Regarding Williams’ due process claims, the court held that because the movies found in his room were not his, the team members did not infringe upon any “protected property interest” of Williams.

Court also held that Williams has not shown that he had a protected liberty interest in being on a particular level of the SPTP program when the team reduced his level from 3 to 1 and that his treatment was compatible with the legitimate treatment goals related to the discipline and behavior modification and the treatment of patients committed to the SPTP. STATUTES: K.S.A. 2006 Supp. 59-29a07, K.S.A. 60-1501, -1503, -1701 et seq., and K.S.A. 77-601 et seq., -602(b), -603(a), -606, -621(c)(1), (5), (8), -622(b) HOSPITAL LIENS AND INSURANCE KEARNY COUNTY HOSPITAL ET AL. V. ALLSTATE INSURANCE CO. KEARNY DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS NO. 96,953 – NOVEMBER 9, 2007 FACTS: Kearny County Hospital and St. Catherine Hospital provided medical care to both Rosa Salazar and Cesar Castillo after an automobile accident in November 2002. The party at fault had a $50,000 automobile insurance policy with Allstate. Kearny County Hospital filed hospital liens of $870 for Salazar and $485 for Castillo with the Kearny County District Court. St. Catherine Hospital filed two hospital liens totaling $63,670.74 for Salazar and two hospital liens totaling $42,864.93 for Castillo with the Finney County District Court. Allstate brought an interpleader action in Kearny County District Court. Eight people involved in the accident had claims against the Allstate policy. The defendants entered an agreed distribution of the $50,000. Kearny County and St. Catherine sued JANUARY 2008 – 37

Allstate arguing they violated K.S.A. 65-408 by making payments to the injured parties without first paying the hospital liens. The district court granted summary judgment to Kearny County and St. Catherine and entered judgment in the amount of $50,000.

ISSUES: (1) Hospital liens and (2) insurance HELD: Court held that because the hospital liens filed by Kearny County Hospital totaled less than $5,000, the hospital was entitled to recover the entire amount of its liens under K.S.A. 65- 406(c). Because the hospital liens filed by St. Catherine Hospital totaled more than $5,000 on each injured party, the trial court must determine what would have been an equitable distribution of the settlement proceeds in these circumstances under K.S.A. 65-406(c). Judgement should be entered in favor of Kearny County for $1,355. Remanded for a determination on what an equitable distribution of the settlement funds would have been between St. Catherine Hospital and Salazar and Castillo.

STATUTE: K.S.A. 65-406, -408 SCOPE OF INTERLOCUTORY APPEAL, EXPERT TESTIMONY, AND JUROR QUESTIONING ON RECALL WILLIAMS V. LAWTON SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 97,132 – OCTOBER 26, 2007 FACTS: Williams became a patient of Dr. Lawton in 2002 after complaining of a urological lesion that would not heal. Williams’ medical history form did not specifically request information about diabetes, and no urinalysis was ordered by Lawton. Lawton performed an outpatient surgery on Williams. Williams was in Lawton’s care until May 2002. Williams developed a host of complications. He sued Lawton in 2004 for medical negligence alleging that he failed to order a urinalysis prior to the surgery, which would have alerted the undiagnosed diabetes, and that Lawton was negligent in treating the postoperative problems. Dr. Diggdon testified as an expert witness on Williams’ behalf and testified that Lawton’s failure to check for diabetes before surgery was a departure from the standard of care. The jury found Lawton 54 percent at fault and Williams 46 percent at fault. The jury awarded $200,000 for past and present pain and suffering and $1.75 million for future pain and suffering. The jury confirmed its verdict upon polling. Lawton filed multiple post-trial motions, including a motion alleging the verdict was reached by averaging all the jurors’ opinions. The district court acted sua sponte in recalling the jurors for postverdict interviews. Eight of the 12 jurors appeared for questioning. The district court ultimately granted Lawton’s motion for a new trial based on jury misconduct having “substantially prejudiced” Lawton’s rights. The district court granted an interlocutory appeal.

ISSUES: (1) Scope of interlocutory appeal, (2) expert testimony, and (3) juror questioning on recall HELD: Court held the permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions. Court found that all three certified questions in this case were derived from and were the lynchpins for the district court’s order granting a new trial to Lawton. Court held that Diggdon properly qualified as an expert witness because at least 50 percent of his professional time within the two-year period preceding the incident giving rise to the action was devoted to actual clinical practice in the same profession that he was licensed. Court held the district court abused its discretion in granting a new trial to the extent it was based on jury misconduct. Court stated the abuse was inherent in the district court’s following actions: Systematic juror by juror contact by counsel should not be undertaken without consent of the court, failure to seek corroboration prior to jury recall, sua sponte recall is contrary 38 – JANUARY 2008

to Supreme Court Rule, the questioning of jurors by the court was not an abuse of discretion, but it may have invaded the mental processes of the jury, and the juror testimony was insufficient to show a quotient verdict. Court reinstated the jury verdict.

STATUTE: K.S.A. 60-259, -441, -444(a), -2102(c), -3401, -3412, -3501 WRONGFUL DEATH AND MOTION TO DISMISS DYE ET AL. V. WESLEY MEDICAL CENTER ET AL. SEDGWICK DISTRICT COURT REVERSED AND REMANDED NO. 97,740 – NOVEMBER 16, 2007 FACTS: Jonathan Dye, a medical technician, and Jennifer Hauptman, a registered nurse, were fatally injured when their air ambulance crashed near Dodge City. The decedents’ representatives brought a wrongful death action against WMC Inc., doing business as Wesley Medical Center, based on lack of experience of dispatchers, fatigued pilots, and airplane terrain avoidance technology. The trial court granted the defendants’ motion to dismiss the petitions for failure to state a cause of action.

ISSUES: (1) Wrongful death and (2) motion to dismiss HELD: Court reversed the motion to dismiss. Court stated that the allegations in plaintiffs’ petitions did not clearly establish the nature of the relationships of the parties. Jonathan was identified as a “medical crew member,” and Jennifer was identified as a registered nurse; both are identified as passengers of the airplane, and the petitions state that both were working while onboard the airplane.

Neither Jonathan nor Jennifer is specifically identified in plaintiffs’ pleadings as an employee of either Wesley or Ballard (air ambulance operator). A question remains whether plaintiffs were employees or independent contractors of Wesley. Court held the determination of the decedents’ employment status and the exact nature of the relationship between Wesley and Ballard may well determine the outcome of these lawsuits. Under three possible scenarios, the lawsuit should continued: (1) if decedents were employees of Ballard as an independent contractor of Wesley, then they may be precluded from recovery; (2) if the decedents were employees of Wesley rather than Ballard, then they may be precluded from recovery under the Kansas Workers’ Compensation statutes; and (3) if the decedents were passengers not employed by Wesley or Ballard, then they may be able to recover as third persons under Restatement § 411. Court held that because at least one of the previously discussed possible results may ultimately entitle plaintiffs to relief, plaintiffs’ petitions should not have been dismissed for failure to state a claim.

STATUTES: K.S.A. 44-501(b) and K.S.A. 60-212(b)

Criminal STATE V. BOGGS MCPHERSON DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 96,921 – NOVEMBER 21, 2007 FACTS: Boggs convicted of possession of marijuana and drug paraphernalia, based on pipe and residence found in pickup in which he was a passenger. Boggs insisted the evidence was not his, but during jail interrogation admitted to smoking marijuana a month ago.

District court allowed that statement with a limiting instruction in this nonexclusive possession case. On appeal, Boggs claimed the trial court erred in admitting Boggs’ statement about prior marijuana use, and erred in using Boggs’ criminal history to calculate sentence without requiring prior convictions to be proven to a jury beyond a reasonable doubt.

ISSUES: (1) Evidence of prior crime and (2) criminal history in sentencing THE JOURNAL OF THE KANSAS BAR ASSOCIATION

HELD: Under State v. Gunby, 282 Kan. 39 (2006), which applies because this case was on direct appeal when Gunby was decided, K.S.A. 60-455 controls the admission of Boggs’ statement about prior marijuana use. Trial court erred in admitting this evidence to prove intent, knowledge, and absence of mistake or accident because Boggs smoking marijuana was dissimilar to the charged crimes, and Boggs completely denied the charged conduct.

Criminal history Apprendi claim is defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 2006 Supp. 65-4152; and K.S.A. 60-401(b), -407(b), -445, -447, -448, -455, 65-4162 STATE V. CHETWOOD SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 96,716 – NOVEMBER 2, 2007 FACTS: Chetwood agreed to plead guilty to a felony committed while he was on probation for another felony. In one of the terms of the plea bargain, the state agreed to recommend to the sentencing court a disposition of probation to residential community corrections on both the old and the new felony. The prosecutor made that recommendation to the district court at the sentencing hearing.

He then introduced the community corrections officer who recommended Chetwood be sentenced to a prison term without probation. The court sentenced Chetwood to 19 months’ imprisonment and ordered his probation revoked.

ISSUE: Violation of plea agreements HELD: Court held that a community corrections officer was an agent of the state, and therefore bound by the terms of a plea agreement between the defendant and the state. Court also held that where the plea agreement called for the state to recommend to the sentencing court that the defendant be placed on probation to residential community corrections and the prosecutor did so, a violation of the plea agreement occurred later when a community corrections officer recommended imprisonment to the sentencing court after being introduced to the court by the prosecutor.

STATUTES: K.S.A. 2006 Supp. 21-4603d(f ), -4610(b); and K.S.A. 21-21(c)(1) STATE V. HENNING LYON DISTRICT COURT – REVERSED AND REMANDED NO. 98,118 - NOVEMBER 30, 2007 FACTS: Officer arrested and handcuffed Henning on outstanding warrant, and then searched Henning’s car in which Zabriske was driver. Zabriske arrested and charged with possession of drug paraphernalia found in car. District court granted motions to suppress in both cases, finding the search as incident to arrest went beyond scope of K.S.A. 2006 Supp. 22-2501(c). State’s appeals in both cases were consolidated.

ISSUE: Search incident to arrest HELD: Provisions in K.S.A. 2006 Supp. 22-2501(c) are constitutional under the continuing authority of New York v. Belton, 453 U.S. 454 (1981). The 2006 amendment changed the rule in State v.

Anderson, 259 Kan. 16 (1996), and extended searches incident to arrest to any crime as constitutionally allowed by Belton. Based on record and specific facts of this case, the officer effected a lawful arrest of the recent occupant of a vehicle and was justified in searching the passenger compartment as a search incident to arrest. District court erroneously sustained motions to suppress. Reversed and remanded for further proceedings.

STATUTES: K.S.A. 2006 Supp. 22-2501, -2501(c), 60-4152, -4160

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

STATE V. MARX LYON DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 98,059 – OCTOBER 26, 2007 FACTS: Law enforcement officer pursued Marxes’ motor home to return hubcap that had fallen off. Officer stopped the motor home after it crossed fog line and center line, and drugs discovered in search of the vehicle. District court granted Marxes’ motion to suppress that evidence, finding stop was not motivated by a desire to return the hubcap and stop was not justified as a public safety stop. Applying State v. Ross, 37 Kan. 2d 126 (2007), district court also found no reasonable suspicion that Marxes violated failure to maintain a single lane, K.S.A. 8-1522. State appealed.

ISSUES: (1) Public safety stop and (2) failure to maintain single lane HELD: Substantial competent evidence supports district court’s decision that traffic infraction was officer’s primary motivation in stopping motor home, rather than return of the hubcap. Also, losing a hubcap is not a sufficient reason to justify a public safety stop.

Even if initial stop had been justified for public safety reasons, extending scope of the stop to check registration and warrants would not have been authorized.

District court erred in finding officer lacked reasonable suspicion to stop the motor home for failure to maintain a single lane. K.S.A. 8-1522 is construed and applied. Under facts of case, officer’s observation that a driver’s vehicle crossed the fog line, overcorrected, and crossed the centerline was sufficient to establish reasonable suspicion of a violation of K.S.A. 8-1522. Ross interpretation of K.S.A. 8-1522 is not followed, and federal court decisions contrary to Ross are noted. Case is remanded for district court’s consideration of issues not yet decided in motion to suppress.

STATUTE: K.S.A. 8-1522, -1548, 22-2402(1) STATE V. RAIBURN ELK DISTRICT COURT – APPEAL DISMISSED NO. 95,908 – NOVEMBER 30, 2007 FACTS: Raiburn was found guilty of possession of marijuana and received a probation sentence. Raiburn appealed his conviction. During his appeal, Raiburn absconded from probation, and his whereabouts are unknown.

ISSUE: Fugitive disentitlement doctrine HELD: Court stated that an appellate court has the discretion to refrain from addressing issues brought by appellants who, because of their fugitive status, will not be affected by any judgment the court may issue. Court held that in a case where the appellant has absconded, an appellate court will dismiss the appeal.

STATUTES: None STATE V. UHLIG JOHNSON DISTRICT COURT – AFFIRMED NO. 96,663 – NOVEMBER 2, 2007 FACTS: Uhlig was convicted of possessing a drug commonly known as ecstasy. The ecstacy was found by a court services officer when she searched his bedroom. Uhlig filed a motion to suppress based on the warrantless search of his house and that officers were required to warn him of his constitutional rights under Miranda.

Uhlig was on probation at the time of the possession. The district court denied the motion to suppress and Uhlig was convicted.

ISSUES: (1) Search and seizure and (2) probationer HELD: Court stated that probationers do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation restrictions.

Court held that where it was a condition of probation for the defendant to submit to searches of his room, the search was done by a JANUARY 2008 – 39

probation officer and a law enforcement officer, and the defendant admitted that he was attempting to hide cigarettes in his room, the officers had a reasonable suspicion to search the defendant’s room.

Court also held that Uhlig was not in custody when he answered the officer’s question before the search, nor were his answers coerced by threat. His answers were admissible even though the officers did not give a Miranda warning. Court stated the trial court correctly denied the motion to suppress.

STATUTES: None STATE V. VASQUEZ ELLIS DISTRICT COURT – APPEAL DISMISSED NO. 96,690 – NOVEMBER 21, 2007 FACTS: Vasquez convicted of aggravated battery in March 2000.

Sentence included probation and payment of restitution. District court granted state’s August 2004 motion to revoke probation, based on Vasquez’s failure to pay restitution. It granted Vasquez’s motion for reconsideration, finding state’s motion was untimely because the court lost jurisdiction when Vasquez’s probation expired in May 2004. In July 2005, state asked district court to find Vasquez in indirect contempt of court because he still owed restitution. District court concluded it did not have authority to order a contempt citation in a criminal case, and it did not have jurisdiction to enforce any orders stemming form the original criminal case. State appealed.

ISSUE: Appellate jurisdiction HELD: Appeal is dismissed because state’s appeal does not come within any of the narrowly defined categories of K.S.A. 2006 Supp.

22-3602(b). Once an individual completes his or her period of incarceration or probation, the trial court no longer has jurisdiction in the criminal case over any unpaid restitution. Collection of unpaid restitution must then be pursued in a civil action. No appellate jurisdiction to consider substantive issues raised by state.

STATUTE: K.S.A. 2006 Supp. 22-3602(b) STATE V. WARREN JOHNSON DISTRICT COURT REVERSED AND REMANDED NO. 94,694 – NOVEMBER 30, 2007 FACTS: Police officer stopped and impounded Warren’s car but did not arrest him. When Warren asked to retrieve items from car, officer searched it first to ensure safety. Officer found day planner under passenger seat and extensively examined its contents.

He then searched trunk and discovered stolen property that led to Warren’s conviction for burglary, theft, and criminal damage to property. Warren appealed, claiming the search exceeded the scope of a search for weapons.

ISSUE: Search for weapons HELD: General principles of search and seizure law are reviewed.

Under facts of case, the officer exceeded the limits of Terry in searching a day planner after discovering it contained no weapons, and then the trunk of the car. Evidence derived from this search must be suppressed, and error was not harmless. Reversed and remanded for new trial with suppression of all evidence arising from this search.

STATUTE: K.S.A. 22-2402

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office Post-Decision Proceedings Opinion hand-down day is a significant event in the course of an appeal, but the decision of the Supreme Court or Court of Appeals is not final on the day of opinion release. A motion for rehearing or modification may be filed in the Supreme Court within 20 days of the date of that court’s decision. Supreme Court Rule 7.06. These are counted as calendar days, and no mail time is added since the time is calculated from date of decision rather than from service. See K.S.A. 60-206(a) and (d).

A motion for rehearing or modification can be filed in the Court of Appeals within 10 days of the date of that court’s decision. Supreme Court Rule 7.05. Because the time to file is less than 11 days, business days are counted; however, there is again no mail time added. A petition for Supreme Court review of a Court of Appeals decision can also be filed within 30 days of the date of the Court of Appeals decision. Supreme Court Rule 8.03(a)(1). Calendar days are counted, and no mail time is added.

It is significant to note that a motion for rehearing or modification in the Court of Appeals is not a prerequisite to filing a petition for review, nor does the filing of such a motion extend the time for filing a petition for review. The two deadlines are running simultaneously. Supreme Court Rule 7.05(a). If a motion for rehearing or modification is pending in the Court of Appeals, the Supreme Court will defer action on the petition for review until the motion is decided in the Court of Appeals. Supreme Court Rule 8.03(a)(3).

For questions about these practices or appellate court rules, call the Clerk’s Office and ask to speak with Carol G. Green, Clerk of the Appellate Courts, at (785) 296-3229.

40 – JANUARY 2008

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

NOTICE Sedgwick County ONLY Increase in Docket Fees for Sedgwick County per HB 2360 18th Judicial District — Effective: January 1, 2008

CASE TYPE

DOCKET FEE

Appeal from Municipal Court Appellate Court Review Civil Foreign Judgment (another state) Foreign Judgment (another county) Tax Warrant Personal Property Tax Statutory Bon Hospital Lien Lis Pendens Mechanic’s Lien Intent to Perform Oil and Gas Mechanic’s Lien Divorce/Paternity Post Decree Motion Limited Action ($500 or less) Limited Action ($500.01 - $5,000) Limited Action ($5,000. - $25,000) Transfer LM to CV (original $30) Transfer LM to CV (original $50) Transfer LM to CV (original $96) Post-Judgment Promotion of Ch. 61 to Ch. 60 Small Claims ($500 or less) Small Claims ($500.01 - $4,000) Criminal (murder/manslaughter) Criminal (felony) Criminal (misdemeanor) Criminal Expungement Arrest Expungement Forfeited Recognizance Traffic Fish and Game Child in Need of Care Juvenile Offender Juvenile Tobacco Adoption

Foreign Adoption Conservatorship &/or Guardianship Probate Trust Filing Will and Affidavit Probate Descent Probate Estates Probate Transcript (another county) Probate Transcript (another state) Refusal to Grant Letters Termination of Joint Tenancy Termination of Life Estate Commitment of Sexually Violent Predator Treatment of Alcoholism, Drug Abuse Treatment of Mentally Ill Marriage License

$ 66.50 $125.00 $149.00 $149.00 $ 5.00 $ 15.00 $ 5.00 $ 5.00 $ 5.00 $ 5.00 $ 5.00 $ 5.00 $ 5.00 $149.00 $ 33.00 $ 30.00 $ 50.00 $ 96.00 $119.00 $ 99.00 $ 53.00 $ 15.00 $ 32.00 $ 52.00 $174.50 $165.00 $130.00 $ -0$100.00 $ 66.50 $ 68.00 $ 68.00 $ 27.00 $ 27.00 $ 68.00 $ 43.50

$ 5.00 $ 64.50 $ 64.50 $ 43.50 $ 44.50 $104.50 $ 18.50 $103.50 $ 43.50 $ 43.50 $ 43.50 $ 28.50 $ 29.50 $ 50.00 $ 50.00

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

JANUARY 2008 – 41

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Only e-mail inquiries will be accepted.

OFFICE SPACE IN DOWNTOWN WICHITA LAW OFFICE. Includes office, workstation for support staff, receptionist, and other amenities. Contact Ryan Hodge at (316) 269-1414.

THE DIRECTOR OF WORKERS’ COMPENSATION for the state of Kansas is accepting applications for two potential administrative law judge openings. One of which would be located in Topeka, Kan., and the other in Overland Park, Kan., for a term of four years beginning April 1, 2008, and ending July 2012, pursuant to K.S.A. 44551. In order to be considered by the nominating committee, each applicant shall be an attorney regularly admitted to practice law in Kansas for a period of at least five years, and at least one year of experience practicing law in the area of workers’ compensation.

Excellent writing skills are required and a demonstrated ability to handle a large case load. Please send your application and/or resume by Feb. 1, 2008, addressed to: Paula S. Greathouse, Director, Division of Workers’ Compensation, 800 S.W. Jackson, Suite 600, Topeka, KS 66612-1227.

MEDICAL MALPRACTICE Expert witnesses in all specialities. Testimony. Case reviews. Opinion letters. Low flat rates.

Fast, easy, national, since 1998. Med mal EXPERTS www.medmalEXPERTS.com (888) 521-3601

LEGAL LANGUAGE SERVICES, a national company with offices in Kansas City, seeks an attorney to work in support of international and transboundary litigation.

The successful candidate will consult with other attorneys, research foreign law, supervise foreign counsel, and consult to LLS clients on international judicial assistance requests. This position requires a strong phone presence, excellent writing skills and the ability to meet strict deadlines. Foreign language skills are not required but would be a plus. Please e-mail resume with salary requirements to lsheppard@legallanguage. com. Be sure to include KCLAW in your subject line.

42 – JANUARY 2008

Attorney Services

PARALEGAL SERVICES Smith Legal & Consulting Services Inc., Sheila C. Smith, P.O. Box 12252, Overland Park, KS 66282-2252. Cell: (913) 713-9332 Fax: (205) 449-0285.

U.S. RECORD SEARCH, locate anyone, background searches, criminal records, asset searches, civil, military, marriage and divorce records, and much more. Call 24 hours/7days (800) 250-8885 www.usrecordsearch.com

Office Sharing

EXECUTIVE OFFICE SUITES AVAILABLE IN LEAWOOD Six full-service executive offices are available in Leawood within one block of College and Nall.

Each tenant will be charged a monthly base rent for tenant’s office. Referrals available from other attorneys in the building.

Call Glen Beal at (913) 387-3180 for more information.

OVERLAND PARK - WINDMILL VILLAGE OFFICE PARK, 7111 W. 98th Terrace, – Two suites available, 12 x 14 ($700) and 10 x 12 ($600) includes conference room, receptionist, mail handling, kitchen, and unallocated parking, use existing telephone system but bring in your own lines, or use conference room for meetings, depositions, etc. $50 per use, call Sherry (913) 385-7990, 310.

For Sale THE LAWBOOK EXCHANGE LTD. buys, sells, and appraises all major lawbook sets. Also antiquarian, scholarly. Reprints of legal classics. Catalogues issued in print and online. Mastercard, Visa, and AmEx. (800) 422-6686; fax: (732) 382-1887; www.lawbookexchange.com.

KANSAS REPORTS complete from Vol. 1 through Vol. 261 and subsequent advance sheets. Vols. 1 to 74 in rough shape. KA2d from Vol. 1 through 22 and subsequent advance sheets. $1,000 or best offer. Phone (316) 265-2834.

OFFICE SHARING IN OVERLAND PARK – Existing law offices seek 1-4 attorneys to join shared office space and expenses. Offices are located at 7007 College Blvd., one block south of I-435 on the southeast KBA Members corner of Metcalf and College Boulevard.

Enjoy reasonably priced large office with a wall of windows overlooking a park-like setFREE Classified ads up to 75 ting. Office suite includes shared conference words with your membership! room(s), shared receptionist/office manager, Renew today at www.ksbar.org. scanner, copy machine, high-speed printer, phone system, fax, storage space, office server platform, postage meter, kitchen, and To place your ad call more. Office building has secured electronic Susan McKaskle at card-reader for after hours access, overnight express mail pick up, USPS pick ups, and an (785) 234-5696 or onsite deli. Interested parties contact Corrie e-mail smckaskle@ksbar.org.

Craig at (913) 381-1500.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION

CLE Docket Tuesday, January 15, Noon - 1 p.m. (Telephone seminar) Use of Expert Witnesses, James R. Howell, Prochaska, Craig, Giroux & Howell, Wichita Wednesday, January 16, Noon - 1 p.m. (Telephone seminar) The Ahlborn Case and its Implications for Medicaid Recoveries in Kansas, Daniel B. Giroux, Prochaska, Craig,

Giroux & Howell, Wichita Friday, January 18, 9 a.m. - 4 p.m.

This CLE is Going to be a Disaster!

Topeka & Shawnee County Public Library, Topeka

Co-sponsored by the Government Lawyers and Administrative Law Sections Friday, January 25, 9 a.m. - 3:45 p.m.

Perfecting Your Juggling Routine: A Practical Guide for the Solo and Small Firm Practitioner

Rolling Hills Zoo, Salina

Co-sponsored by the Law Practice Management and Solo and Small Firm Sections Wednesday, January 30, 8:40 a.m. - 5:05 p.m./Thursday, January 31, 8:30 a.m. - 12:05 p.m.

8th Annual Slam Dunk

KSU Alumni Center, Manhattan Thursday, February 7, Noon - 1 p.m. (Telephone seminar) Nonprofit Governance, Professor Janet Thompson Jackson, Washburn University School of Law, Topeka Friday, February 8, 1 - 4:45 p.m./Saturday, February 9, 9 a.m. - 4 p.m.

YLS Trial Advocacy — Opening & Closing Arguments (Limited to 24 registrants)

Robert J. Dole U.S. Courthouse, Kansas City, Kan. Tuesday, February 12, Noon - 1 p.m. (Telephone seminar) Kansas Medicaid Subrogation Claims: K.S.A. 39-719a, Robert R. Hiller Jr., Kansas Health Policy Authority, Topeka Wednesday, February 13, Noon - 1 p.m. (Telephone seminar) Nonprofit Update, Bruce R. Hopkins, Polsinelli Shalton Flanigan Suelthaus P.C., Kansas City, Mo. Friday, February 22, 9 a.m. - 4:35 p.m.

Basic Auto Insurance 101, Randall E. Fisher, Newton

The Radisson, Lenexa Tuesday, February 26, Noon - 1 p.m. (Telephone seminar) Guardian ad Litem (GAL) 101, Stephanie Goodenow, Law Office of Stephanie Goodenow LLC, Olathe Wednesday, February 27, Noon - 1 p.m. (Telephone seminar) Representing the Child in Need of Care (CINC) and Termination of Parental Rights (TPR) Cases,

Stephanie Goodenow, Law Office of Stephanie Goodenow LLC, Olathe

KBA Continuing Legal Education: Your Partner in Practice!

For more information, or to register online, visit www.ksbar.org.

These KBA CLE seminars are being submitted for accreditation to the Kansas CLE Commission.

Potential walk-in participants should call the KBA office at (785) 234-5696 prior to the seminar to check for possible schedule changes.

For updates on CLE credit approval, visit www.ksbar.org/public/cle.shtml.

To access your Kansas CLE transcript online, visit www.kscle.org/Tran_Query.aspx.