June 2010 • Journal of the Kansas Bar Association

JOURNAL

THE

of the KANSAS BAR ASSOCIATION

Your Partner in the Profession • www.ksbar.org

CIVIL CODE AND TIME COMPUTATION CHANGES EFFECTIVE JULY 1

J

The Journal

THE

Board of Editors

June 2010 • Volume 79 • No. 6

OURNAL

of the Kansas Bar Association

Your Partner in the Profession • www.ksbar.org

Catherine A. Walter, Chair Terri Savely Bezek

Topeka Topeka

Boyd A. Byers

Wichita

Toby J. Crouse

Overland Park

Professor J. Lyn Entrikin Goering Topeka Connie S. Hamilton

Topeka

Evan H. Ice

Lawrence

Katharine J. Jackson Michael T. Jilka

Focus 20

Civil Code and Time Computation Changes Effective July 1

Manhattan Overland Park

Lisa R. Jones Wichita Hon. Janice Miller Karlin Topeka Casey R. Law

McPherson

Julene L. Miller

Topeka

Hon. Lawton R. Nuss

Topeka

Nancy A. Ogle Professor John C. Peck Richard D. Ralls

Wichita

By James Concannon

Lake Quivira Kansas City, Mo.

Teresa M. Schreffler Lawrence Richard H. Seaton Sr.

Manhattan

Items of Interest

Marty M. Snyder

Topeka

Matthew A. Spurgin Topeka Issaku Yamaashi

Overland Park

Regular Features

8 Lawyers are Unreasonable and

Richard D. Smith Topeka

06 President’s Message 07 Young Lawyers Section News 11 The Diversity Corner 12 A Nostalgic Touch of Humor 13 Members in the News 14 Obituaries 19 Law Practice Management

Should be Proud of it

By John D. Jurcyk

9 In Memoriam

Rachael K. Pirner, BOG liaison Wichita

Justice Bob Abbott

Catherine A. Walter, Chairperson cwalter@topeka.org Susan McKaskle, Communications Director smckaskle@ksbar.org

10 In Memoriam

Hon. Jerry G. Elliott

14

KWAA Gears up for Annual Lindsborg Conference July 15-17

Tips & Tricks

15 Come On ... Do I Really Need a 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.

Paralegal?

16 Recovery is Possible 17 Welcome Spring 2010 Admittees to the Kansas Bar

32 35 42 43

Appellate Decisions Appellate Practice Reminder Classifieds CLE Docket

35 Reminders from the Kansas CLE Commission

Cover photographs and design by Ryan Purcell rpurcell@ksbar.org

KANSAS BAR ASSOCIATION 1882

www.ksbar.org

www.ksbar.org

The Journal of the Kansas Bar Association | June 2010 3

Let your VOICE be Heard!

2009-10

KBA Officers and Board of Governors President Timothy M. O’Brien (913) 735-2222 Kansas City, Kan. tobrien@ksbar.org

District 2 (Con’t.)

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

President-elect Glenn R. Braun (785) 625-6919 grbraun@haysamerica.com

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

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

Hays

Wichita

Lawrence

Neodesha

District 4 William E. Muret (620) 221-7200 Winfield muret@winfieldattorneys.com

Secretary-Treasurer Gabrielle M. Thompson (785) 539-3336 Manhattan gabrielle7000@sbcglobal.net

District 5 Natalie G. Haag (785) 438-3121 Topeka natalie.haag@securitybenefit.com

Immediate Past President Thomas E. Wright (785) 271-3166 twright21@cox.net

Teresa L. Watson (785) 232-7761 Topeka twatson@fisherpatterson.com

Topeka

Young L awyers Section President Jennifer M. Hill (316) 263-5851 Wichita jhill@mtsqh.com District 1 Eric G. Kraft (913) 498-3536 Overland Park ekraft@kc-dsdlaw.com Kip A. Kubin (816) 531-8188 Kansas City, Mo. kak@kc-lawyers.com Samuel P. Logan (913) 498-2100 slogan@foulston.com

Overland Park

Lee M. Smithyman (913) 661-9800 lee@smizak-law.com

Overland Park

District 2 Charles E. Branson (785) 841-0211 Lawrence cbranson@douglas-county.com

District 6 Bruce W. Kent (532) 556-2019 bruce.w.kent@gmail.com

Manhattan

District 10 Jeffery A. Mason (785) 890-6588 jamason@st-tel.net

Goodland

District 11 Nancy Morales Gonzalez (816) 936-5754 Kansas City, Mo. nancy.gonzalez@ssa.gov District 12 Vacant At-L arge Governor Gwynne Harris Birzer (316) 265-7741 birzer@hitefanning.com KDJA R epresentative

Wichita

Hon. Nancy E. Parrish (785) 233-8200 x 4067 nparrish@shawneecourt.org

Topeka

KBA Delegate to ABA Sara S. Beezley (620) 724-4111 beezleylaw@ckt.net

Girard

District 7 Matthew C. Hesse (316) 858-4924 Wichita matthew_hesse@via-christi.org Laura L. Ice (316) 660-1258 Wichita lice@cfc.textron.com Calvin D. Rider (316) 267-7361 x 157 Wichita crider@fleeson.com

KBA Delegate to ABA Linda S. Parks (316) 265-7741 parks@hitefanning.com

District 8 Gerald L. Green (620) 662-0537 jgreen@gh-hutch.com

ABA State Delegate Thomas A. Hamill (913) 491-5500 Overland Park tahamill@martinpringle-kc.com

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

Hutchinson

Hugoton

Wichita

At-L arge Delegate to ABA House Hon. Christel E. Marquardt (785) 296-6146 marquardtc@kscourts.org

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

Topeka

Topeka

Sponsored by

... serving the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society.

Kansas Law Center 1200 SW Harrison St. Topeka, Kansas 66612-1806 Telephone: (785) 234-5696 Fax: (785) 234-3813 Website: www.ksbar.org OFFICERS John D. Jurcyk President jjurcyk@mvplaw.com

Roeland Park

James D. Oliver President-elect joliver@foulston.com

Overland Park

Daniel H. Diepenbrock Secretary-Treasurer dhd@diepenbrockpa.com

Liberal

Sarah Bootes Shattuck Immediate Past President bootes@ucom.net

Ashland

BOARD OF TRUSTEES Robert M. Collins Wichita James C. Dodge Sublette Kenneth J. Eland Hoxie Joni J. Franklin Wichita Gregory P. Goheen Kansas City, Kan. Terence E. Leibold Lawrence David K. Markham Parsons Edward J. Nazar Wichita Randall J. Pankratz Newton H. Douglas Pfalzgraf Wellington Hon. Ronnie L. Svaty Ellsworth J. Ronald Vignery Goodland Kenneth W. Wasserman Salina Hon. Evelyn Z. Wilson Topeka Scott M. Hill Wichita Young Lawyers Representative Katherine L. Kirk Lawrence Kansas Association for Justice Representative Susan G. Saidian Wichita Kansas Women Attorneys Association Representative Vaughn L. Burkholder Overland Park Kansas Association of Defense Counsel Representative Michael P. Crow Leavenworth Kansas Bar Association Representative David J. Rebein Dodge City Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman jalderman@ksbar.org

2.0 CLE credit hours, including 2.0 professional responsibility credit hours approved in Kansas & in Missouri

Where Does the Money Go? Our designated charities for 2010 are: • CASA • Safehome and Hope House (domestic violence programs) • Metropolitan Organization to Counter Sexual Assault (MOCSA) • Kansas Foster & Adoptive Children • Kansas Bar Foundation • In addition, we will fund $1,000 Ethics for Good Scholarships to each of the KU, Washburn and UMKC Law Schools and the Johnson County Community College paralegal program.

How Do We Sign Up for this Amazing Program?

For a mere $85, you get both the ethics and the good, the entire Ethics for Good.

To register for this program, register online at:

www.ksbar.org/ethicsforgood

June 24, 2010, 2:30 – 4:10 p.m.

Folly Theater 300 W. 12th Street Kansas City, MO

June 25, 2010, 2:30 – 4:10 p.m.

Polsky Theatre, JCCC Carlsen Center 12345 College Blvd. (College & Quivira) Overland Park, KS

Who Are the Presenters?

We are a volunteer quintet of lawyers together with an appellate judge.

Stan Davis, Shook, Hardy & Bacon LLP Mark Hinderks, Stinson Morrison Hecker LLP Hon. Steve Leben, Kansas Court of Appeals Jim Griffin, Husch Blackwell Sanders LLP Todd LaSala, Stinson Morrison Hecker LLP Lori Schultz, Shook, Hardy & Bacon LLP

$85

Topeka

MANAGER, PUBLIC SERVICES Meg Wickham Topeka mwickham@ksabar.org

www.ksbar.org

ETHICS FOR GOOD XI

Questions?

Contact Deana Mead, KBA CLE Director, at dmead@ksbar.org or at (785) 234-5696.

The Journal of the Kansas Bar Association | June 2010 5

From the

President

Timothy M. O’Brien tobrien@ksbar.org

A Time to Say Farewell To everything (Turn, Turn, Turn) There is a season (Turn, Turn, Turn) And a time to every purpose under Heaven This Pete Seeger/Byrds song, taken from Ecclesiastes, holds many great truths. As I reflect back on my year as president of the Kansas Bar Association, I thought about some of them.

A time to dance, A time to mourn, Over the past few weeks we have had both. I recently administered the federal court oath to new lawyers and talked to them about the benefits of membership in the Association. I looked out and wondered how they will make their marks on society. I am confident they and their parents were all ready to dance because I remember that feeling very well, even after 27 years.

We also lost two legal luminaries, Justice Bob Abbott and Judge Jerry Elliott. Their legacies are chronicled in this issue at Pages 9 and 10, respectively. They accomplished so much in their storied careers. We mourn them and all the departed colleagues we have memorialized in these pages. Death, I am often reminded, is a constant that can come unexpectedly.

A time to plant, A time to reap, Our new Commission on Professionalism is off and running. They have a difficult assignment but will deliver an insightful look at this critical area. The Bar Leaders Summit was very successful. Hopefully, bringing together the bar leaders from around the state will become an annual tradition. Our new Federal-State Courts Jurisdiction Committee has already been paying dividends. Finally, we began work on a strategic plan for the bar that will give us direction when completed.

Some of our initiatives are still growing. Thanks to those who continue to work on our unauthorized practice of law, paralegal certification, CLE efforts, and mandatory IOLTA projects. Your work on those projects is much appreciated.

After five years of planning, the KBA was proud to host the Southern Conference of Bar Presidents meeting. Jeff Alderman was instrumental in keeping the KBA as host when others wanted it offered in a more exotic location. In the end, people loved coming to Kansas City for this great and prestigious meeting. We also finished the building project with a new parking lot from money obtained in the Raising the Bar Campaign. With a lot of hard work over the past few years, the Bar’s relationship with the Office of Judicial Administration and the courts have never been better. A lack of space means I haven’t mentioned a lot of projects that have occupied time this year.

A time for love, A time for hate, I loved being the KBA president. It was truly an extraordinary honor to represent our distinguished members. To have the chance to work with our judges, law school deans and faculties, and great lawyers from all around the state has been a thrill. I have always felt blessed just to be a lawyer and a part of this organization. Being president was beyond my wildest expectations. Thanks to all who helped bestow this great honor upon me.

I am disappointed our lobbying and other efforts failed and that the judiciary had to close, furlough good employees, and delay justice. Our politicians need to work together to achieve good and lasting solutions to our problems. I also dislike the divisive political rhetoric we see today, especially at the federal level.

A time to embrace, A time to refrain from embracing, Under the leadership of Jeff Alderman, KBA staff does a wonderful job embracing and executing the mission of the Bar Association. They are dedicated and service-oriented. I would like to thank Krista Bright, Kelsey Hendricks, Kathy Johnson, Doug Lattimer, Susan McKaskle, Deana Mead, Jamey Metzger, Joe Molina, Lisa Montgomery, Joyce Neiswender, Dawn Phoenix, Ryan Purcell, Alana Seelbach, Kathy Slawson, Beth Warrington, and Meg Wickham. Keep up the great work! My executive committee was always available to consult and provide valuable advice. I appreciated their wisdom. The Board, committee chairs, section presidents, and members do lots of heavy lifting and work very hard at carrying out KBA projects. As president, I was able to see so much of the work that people do throughout the year to make this organization and our legal system better. I am humbled by the enthusiasm, knowledge, and dedication.

This is my final column. The judges and staff in the District of Kansas, like my partners at Shook, Hardy & Bacon before them, graciously allowed me to spend time working on KBA issues. I am very thankful for their indulgences. My wife, Melinda, and children, Kyle, Evan, and Molly, were wonderful for giving me the time and opportunity to do this work.

Glenn Braun will make a tremendous president. I leave this organization in great hands and look forward to my role as past president. Glenn, if I call you with “great” ideas, just remind me that it is my time to refrain from embracing the KBA. Thanks again. n A time for peace, I swear it’s not too late!

Tim O’Brien may be reached by e-mail at tobrien@ksbar.org, by phone at (913) 735-2222, or post a note on our Facebook page at www.facebook.com/ksbar.

6 June 2010 | The Journal of the Kansas Bar Association

www.ksbar.org

Young Lawyers Section News

Attitude is Everything

By Jennifer M. Hill, McDonald, Tinker, Skaer, Quinn & Herrington P.A., Wichita, jhill@mtsqh.com

I

’m certain that all of you have heard the phrase “attitude is everything.” It’s a bumper sticker or a pin you see on someone’s lapel. It’s an e-mail forward. But like so many sayings, though, it is also 100 percent the truth.

In my year as Young Lawyers Section president, I’ve had ups and downs. I have had good days and bad. Whenever I feel the need to throw myself a pity party, I remind myself that attitude is everything. Recognizing that I am the only one who can change my outlook and perception of the world, I focus on finding solutions rather than wallowing in my problems.

Professionally. There are a lot of days when I have a difficult time working through complex legal matters. Whether it is an issue I don’t feel that I fully grasp, writer’s block, or a client I’m not sure how to handle, there are plenty of times I feel overwhelmed. Lately, it is as if I am too busy. It seems that a storm was brewing over me the last few months and now the storm is fully engaged! On the days when I let the fact that I am hammered with deadlines get to me, I come home in a foul mood, I am short with my staff, and I don’t remember much of the day except that I was upset. On the days I stay focused, get much accomplished, and work through the difficult issues, I feel fulfilled and rewarded at the end of the day.

Attitude is everything.

Recently I had a great result for a client on a matter I was appealing that resulted in another enormous work project.

And while the last thing I needed was another large project, I tried very hard to focus on the fact that I was going to get another shot at a very important issue for my client. I didn’t focus on the fact that I was falling behind on other projects.

I filed the new brief in the case, and I feel really proud about what I have accomplished: (1) another opportunity to present my arguments, (2) a coherent and well-written brief (if I do say so myself ), and (3) a really grateful and appreciative client. When I get down about the amount of work on my desk, I remind myself that in these economic times, I am lucky to have a job I love, co-workers who complement me, and lots of work to keep me busy.

Family. Being a working mom is tough. Don’t let anyone tell you otherwise. My son is now 16 months old and as best as I can tell, he is the most adorable, intelligent, kind-hearted, hilarious, and fun-loving baby who has ever lived. There are days at the office that I miss him so much, I can’t hardly stand it. There are days that I question my decision to be a working mother. But I have made the choice and I stand by it, proudly.

On the days when I miss him the most, I remind myself, attitude is everything.

www.ksbar.org

While I may not be able to spend all of the time I want with my son, I am able to offer him other things. First, my decision to work has allowed my husband some freedom to not be the sole breadwinner, thereby allowing him to be a more involved and present dad than he might otherwise be. The relationship between my husband and my son is truly amazing, and I know that by working, I have in some part made that possible. Our decision to have two working parents has allowed us the opportunity to give our son things that he might not otherwise have. At age 1, he has traveled all over the country and spent some really wonderful vacations with his parents and cousins! Because my time with my son is precious, I make the absolute most of evenings and weekends. Whether it is spending time at the dinner table coloring with him, going to the zoo, or taking him for a run with the jogging stroller, when I’m with my son, I am completely and totally engaged.

And it’s wonderful.

Hobbies. I have run seven marathons. I’m really proud to say that. Probably the most frustrating thing, however, is that of all the marathons I’ve run, my first race is still the fastest. I have never beaten that time. Every so often, I get down about this because I think “why keep doing it if I won’t get any better?” But the reality is that race day is a celebration of the hard work I’ve put in training. My running has taken me to beautiful places — I’ve seen the bridges of New York City in a way you can only see by running the marathon. My running has reunited me with old friends — what better way to visit someone than to tell them you are running the marathon in their city and you need a friend to take you to dinner the night before? My running has shown me I am far stronger than I ever give myself credit for. When I think about these things (and not just my finish time), I remember attitude is everything.

I hope that no matter what obstacles face you in your personal and professional life, you see them as opportunities to grow. As you start each day, remember that you are the only one who can control whether you are productive, focused, confident, grateful, humble, realistic, and any other trait you want to be. And always remember that you are the only one in charge of your attitude, so make it count. n Jennifer Hill may be reached at (316) 263-5851 or by e-mail at jhill@mtsqh.com.

The Journal of the Kansas Bar Association | June 2010 7

Lawyers are Unreasonable and Should be Proud of it

By John D. Jurcyk, McAnany, Van Cleave & Phillips P.A., Roeland Park, Kansas Bar Foundation president, jjurcyk@mvplaw.com

T

he past year has gone by quickly, and the activities of the Bar Association and the Foundation have been a rewarding experience for me. In terms of the Foundation, we have weathered the financial storms and are still able to do some good work in the community. I have been blessed to have a platform for presenting a monthly message and I am sure all of the readers are thankful that this is the last of those opportunities.

Last week I attended the Rockhurst High School National Honor Society induction. I, of course, am shameless enough to brag about my young son, Christopher, but that is not the reason I call this to your attention. Principal Larry Ruby gave a talk to the boys and started by quoting George Bernard Shaw. I have been familiar with this quote for some time and it has always intrigued me. Shaw said: The reasonable man adapts himself to the world, the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.

Ruby, when referencing Shaw, tried to encourage the students to be unreasonable when it was required of them to seek progress for good. As I was sitting there listening to the speech, I could not help but think how Shaw’s quote defines the best of our profession.

The big difference between what Shaw espouses and what we do as lawyers is that we do not try to adapt the world for ourselves. Rather, we try to adapt the world for our clients.

There are so many stories of lawyers standing up for the small person against the powerful. Those lawyers are unreasonable people. In the sense that Shaw describes them, as lawyers, representing our clients, we are responsible for much progress.

Hollywood loves the unreasonable man. There are many stories of lawyers sacrificing personal happiness or safety for the greater good. One of the most enduring characters taking on all odds and more significantly tacking on the public sentiment is Atticus Finch in “To Kill A Mockingbird.” That role has been followed up with many roles of lawyers as heroes including one of my favorite, Tom Cruise, as Lt. Kaffee in “A Few Good Men.” Is there a greater struggle than taking on a military superior?

Those Hollywood characters are unreasonable men. They sought to adapt the world to the needs of their clients rather than adapting their clients’ cases to the world.

In our profession, however, lawyers don’t have to quit their jobs, become politicians or crusaders, or sacrifice their sanity or lifestyle to be heroes. All lawyers have the opportunity to be heroes. All lawyers have the ability to adapt the world to the needs of their clients. All lawyers have the opportunity to be what Shaw described as an unreasonable person.

8 June 2010 | The Journal of the Kansas Bar Association

In working with the Foundation I was blessed to see it first hand. I learned of lawyers from large law firms winning the KBA’s Pro Bono Award. It is not easy for those individuals to forgo the billable hour and give their time and talent to the needy. I learned of the work of Kansas Legal Services. For those that don’t know, Kansas Legal Services is a statewide nonprofit organization dedicated to helping low-income Kansans meet their basic needs through the provision of essential legal, mediation, and employment training services. Their work gives many their only access to our justice system and without access for all, that system is flawed.

I watched the growth of the Mock Trial competition. From what I have seen, many lawyers gave time to help kids who one day may defeat them in court. It is an unreasonable person who gives of themselves to create business competition.

I watch the work of all the agencies that apply to the Foundation for funding. While the professionals of these worthy groups may not be lawyers, I see that their volunteer boards are filled with lawyers. They give of their time without expectation of notice or reward.

Our profession is filled with heroes. We are blessed to be surrounded by unreasonable men and women. Progress is dependent on us.

I would like to thank the members of the Bar Foundation Board of Trustees. It has been a pleasure to work with them the past year. They have all traveled for meetings at their own expense and without compensation. They have sacrificed from the time necessary to earn a living. That does not seem reasonable, but I am optimistic that in some small way it has contributed to progress. I give thanks to the Fellows of the Foundation. Without your financial commitment, the work could not be done. Finally, I thank the Bar Association staff.

In addition to your professional work, the patience you display is essential to the success of the Foundation. n About the Author

John D. Jurcyk, McAnany, Van Cleave & Phillips P.A., Roeland Park, is a longtime member of the KBF and became a member of the Kansas Bar Association in 1984.

www.ksbar.org

In Memoriam Justice Bob Abbott

R

etired Justice Bob Abbott’s career, capped by serving a member of the Board of Editors for the Journal of the Kan13 years each on the Kansas Supreme Court and Court sas Bar Association and served as vice president of the Kansas of Appeals, was a stellar example of dedication to the Bar Foundation. In 1973, he received the KBA Distinguished legal profession.

Service Award for his work on the CLE Abbott was the first judge appointed Committee. to the Kansas Court of Appeals in 1977 He was also a member and past presiafter the 1976 Kansas Legislature redent of the Geary County Bar Association established an intermediate court of apand served as an officer of the Kansas Trial peals. During his tenure on the court, AbLawyers Association. While in private bott served as chief judge from 1985 until practice, Justice Abbott was named Outhis appointment to the Kansas Supreme standing Young Man by Junction City Court in 1990. He authored more than and the state of Kansas.

1,000 opinions and supervised the expanJustice Abbott served as an adjunct prosion of the court of appeals from seven to fessor at Washburn University School of 10 members.

Law from 1978-1988. He received distinThroughout his 26 years on the bench, guished alumnus citations from Dodge he wrote more than 2,000 opinions. In a City Community College, Emporia State 2002 interview, he said that it was diffiUniversity, and Washburn University cult to choose any one opinion that really School of Law. stuck out in his mind, but there is one In an earlier interview, Justice Abbott’s that was prominent, State v. Grissom. At youngest son, Bren, said, “I think that that time it was the longest on record – people associate an attorney with being 142 pages. a leader and Dad was certainly that. He Prior to being appointed to the bench often volunteered with various organizaJustice Bob L. Abbott

by Gov. Robert Bennett, Justice Abbott tions and activities. You could always tell 1932 – 2010 was in private practice for 17 years in his opinion was valued.”

Junction City with the firm of Harper, Hornbaker & Abbott.

According to Bren, Justice Abbott had very little “active” inWhile in Junction City, he served as city attorney for Grand- fluence on him to become an attorney. However, he did have view Plaza and assistant city attorney for Milford. While city an incredible amount of passive influence. Bren said, “Dad attorney, he assisted in negotiating the sale of Milford to the encouraged us to explore other professions. I think deep down U.S. government and in the planning a new city. he wanted at least one of us to be an attorney, but he would go Justice Abbott graduated from Jetmore High School in out of his way to let us know otherwise.”

1950. He received his associates degree from Dodge City Justice Abbott’s children picked up on “His Honor’s” pasJunior College in 1952, where he was a three-sport letter- sive influence. Judge Bryce A. Abbott has been a practicing man and earned a Bachelor of Science degree from Emporia attorney and is now a municipal court judge in Wichita, and State University in 1956, graduated second in his class from his wife, Jana, is a also an attorney. Bren and his wife, Cecilia, Washburn University School of Law in 1960, and received are both attorneys in the Kansas City area. his Master of Law degree from the University of Virginia in Justice Abbott is also survived by Kaye Cummings Ab1986. While at Washburn, he was a member of the Law Re- bott, his wife of 53 years; his children, Kyle Ann, of Wichita, view Board that founded the Washburn Law Journal. He was Jayme and Blake Abbott-Anderson, of Salt Lake City; and five a veteran of the U.S. Air Force, serving as a navigator aboard grandchildren, Logan Abbott, Caroline Abbott, Reid Abbott, a C-124 from 1953-1954.

Carter Abbott, and Marleigh Anderson. He is also survived Justice Abbott was a lifetime member of the Kansas Bar by his sister, Alice Bump, of Hill City; his brother, Keith Association (KBA) and actively involved. He was chairman Abbott, of Beaver, Okla.; and many nieces and nephews. He and a member of the Continuing Legal Education Commit- was preceded in death by his parents, Jesse Andrew and Ida tee from 1970-1975, as well as the original Appellate Practice Fern Abbott.

Writing Committee. During his tenure on the committee, A memorial has been established with the Kansas Bar Founthere were more than 40 CLEs planned per year. He was also dation, 1200 SW Harrison, Topeka, KS 66612-1806.

www.ksbar.org

The Journal of the Kansas Bar Association | June 2010 9

In Memoriam Hon. Jerry G. Elliott

O

n April 5, 2010, our state and its legal community In Lawrence, he also began working with local attorneys to lost its longest serving and most senior judge of the found the Judge Hugh Means Inns of Court, which promotes Kansas Court of Appeals, Judge Jerry G. Elliott. mentoring of young lawyers. He served as one of the first Judge Elliott was named to the court presidents of that Lawrence organization. of appeals in 1987 by then-Gov. Mike He also interned students at both KU and Hayden to fill the newly created eighth Washburn law schools and worked with position on the court. During his 23 years as many as 20 individual law clerks duron the bench, he heard some 2,354 cases ing his tenure on the bench. and wrote approximately 232 published Judge Elliott was a member of the opinions.

Wichita and Douglas County bar associaBorn in Fort Scott, Elliott began attendtions and maintained an active membering Hutchinson Junior Community Colship in the Kansas Bar Association for 46 lege while still in high school. As a college years. While clerking for Judge Brown, he freshman, he was a state junior college digested U.S. District Court decisions for debate champion and finished third in the Journal of the Kansas Bar Association the 1955 National Junior College Debate and served on the Journal Board of EdiChampionship. tors (BOE) for 42 years, twice as chair.

As a sophomore he went to the UniHe also served on the Legal Aid and Reversity of Kansas after receiving a Navy ferral and Access to Justice committees, ROTC scholarship. He received his bachand the Task Force on Quality of Life in elor's degree in 1958. He then served the Profession and the Legal Services Task three years in the Navy as an intelligence Force. officer. After his military service, he atIn recalling Judge Elliott’s service on tended KU Law School and earned a law the BOE, Richard “Dick” Seaton, second Hon. Jerry G. Elliott degree, with distinction, in 1964. He was in tenure on the Board to Elliott, said, 1936-2010 a member of the Order of the Coif, served “Jerry was the ‘wise man’ on the board, as notes editor and editor-in-chief of the Kansas Law Review, to whom the rest of us looked for guidance and wisdom. He and received numerous American Jurisprudence Awards for always knew who might be a good author for an article, and achieving the highest grade in several classes. He also received what the latest case law said on the topic. It was an honor to the C.C. Steward Award in Law as the outstanding member serve with him.” of his graduating class.

“Over the past five years, I came to regard Jerry Elliott as Prior to his appointment to the bench, Judge Elliott prac- one of the finest appellate judges our state will ever know. Yet ticed for 25 years at Foulston, Siefkin, Powers and Eberhard in he never ‘judged’ his colleagues. Instead, in his unassuming Wichita, primarily in areas of appellate practice and creditor’s way, he befriended us, taught us, mentored us, and humored rights. Before joining Foulston, he clerked for two years with us into doing our best work. He will be deeply missed,” said Judge Wesley E. Brown of the U.S. District Court in Wichita. Judge Nancy Caplinger, who served on the bench, as well as After joining Foulston, Elliott became a moving force in the BOE, with Judge Elliott. the community. After the death of his daughter at age 6 in “As a colleague on the court of appeals, Jerry Elliott was ex1973, he became president of the Kansas chapter of the Leu- ceedingly easy to work with. Even though he had already been kemia Society of America. He continued his charitable work on the court for two decades before I joined, he treated me as throughout his life. He was instrumental in creating Accent an equal and readily exchanged ideas as we worked through on Kids Inc., a nonprofit corporation that constructed and cases. Judge Elliott absolutely loved the law, and the court of ran two Ronald McDonald Houses in Wichita, and he con- appeals was the perfect place for him to be,” said Judge Steve tinued his devotion to the needs of children throughout his Leben, who also served on the bench and BOE with him. life.

Judge Elliott is survived by his wife, Debra Duncan, also an After moving to Lawrence in 1987, he became involved attorney; son, Hunter Pearse Elliott, of St. Louis; sister, Nancy with the work of VanGo Mobile Arts Inc., an arts organi- Burke, of Independence, Mo.; and brother, Jim P. Elliott, of zation for high needs and undeserved children. He also was Hutchinson. n involved in the work of the Lawrence Humane Society.

10 June 2010 | The Journal of the Kansas Bar Association

www.ksbar.org

The Diversity Corner Movies With Women Lawyers as Leading Characters

By Kelly Lynn Anders, Washburn University, kelly.anders@washburn.edu

Dear Kelly, My wife is a lawyer, and she loves television shows about lawyers. If it involves the law, lawyers, or law firms, she’ll watch it. She especially enjoys shows with minority female lawyer characters. I think it’s probably helpful for her to see these images because she sometimes feels isolated. She is the only lawyer in our family, and we don’t have any close friends (male or female) who are involved in the legal profession. I was flipping through her copy of this magazine, saw your column, and thought you might be able to help me with an idea.

I am looking for movies with woman lawyers as leading characters, preferably women of color. Surely, “Legally Blonde” isn’t all there is. I’d like to surprise her with a collection of DVDs for her birthday in July. Any suggestions?

Reel Curious Dear Reel, Although there have been several television shows over the years that have successfully featured female lawyers and judges in leading roles, the movie industry has lagged a bit behind.

This is especially true for women lawyers of color, who typically appear in small roles as opposing counsel or no-nonsense judges. “Legally Blonde” is an example of the latter. Unfortunately, there are surprisingly few films that feature minority women in leading roles as lawyers. Films featuring Asian, Latino, Native American, or LGBT lawyers are even more of a rarity, regardless of gender. In fact, the only film that comes to mind that featured a gay lawyer as a main character was the excellent “Philadelphia” (1993). Movies that do feature minority women lawyers in leading roles tend to have story lines that de-emphasize the legal profession, such as Gabrielle Union’s character in “Daddy’s Little Girls” (2007).

One of my personal favorites is the classic comedy, “Adam’s Rib” (1949), starring Katherine Hepburn and Spencer Tracy as married lawyers who become opposing counsel. Although it was released 61 years ago, this witty film was ahead of its time due to its story line, as well as being one of the few films of its day to include someone of color on the jury. A more recent selection is “High Crimes” with Ashley Judd and Morgan Freeman (2002), and David Mamet’s newest play, “Race,” has received rave reviews and could reach the big screen. For additional ideas, a comprehensive list of films with woman lawyer characters is available at http://faculty.law.lsu.edu/ccorcos/ lawhum/womenlawyersinfilms.htm and is updated regularly.

or sexual orientation. The Diversity Committee has created a brief survey to obtain demographic information to better determine what kinds of services and support are needed. Please help by completing the survey at www.surveymonkey.com/s/ QDG6DM5.

Call for Questions The Diversity Corner seeks questions about diversity issues for future columns. Names will be withheld on request. Please forward questions to: Lisa Montgomery, Member Services Director, Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612, or send an e-mail to lmontgomery@ksbar.org. n About the Author Kelly Lynn Anders, associate dean for Student Affairs at Washburn University School of Law, is the 2009-10 chair of the KBA Diversity Committee and author of “The Organized Lawyer” (Carolina Academic Press, 2009).

New Diversity Survey The mission of the Kansas Bar Association’s Diversity Committee is to support the KBA’s efforts to increase diversity within the Kansas legal profession, with the ultimate goal of ensuring that the demographics of the legal profession mirror those of the general population by the year 2020. Currently, there are no records available with definitive data on the current percentage of attorneys in the state of Kansas who are members of minority groups due to race, disability, www.ksbar.org

The Journal of the Kansas Bar Association | June 2010 11

A Nostalgic Touch of Humor

The Day ‘Oscar’ Met Jimmy Green

By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo., mkeenan@shb.com

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ollege campuses are a natural attraction for academic scribed what happened next: “It was obvious to the students and political leaders. Here in Kansas we draw our share. that something unusual would happen that morning. The The Landon Lecture brings in a who’s who of bigwigs classroom was filled to capacity with professors, members of – a short list that includes Ronald Reagan in 1967, President the KU Law Society, other students, and numerous photograRichard Nixon in 1970, and Al Haig in 1973. KU does well phers. Some minutes into Professor Casad’s lecture, Dean Mitoo – Bobby Kennedy, for example, chael Davis approached the podium to filled Allen Fieldhouse in March 1968 announce the arrival of ‘the country’s and went to K-State the same month. most famous law professor, Charles W. Sometimes they come for the purpose Kingsfield Jr.’ Kingsfield … placed his of speaking at the KU Law School; it law books and papers on the lectern, has drawn, at last count, 10 Supreme glanced menacingly over the class and Court justices. In April, Sandra Day called on a student to give the facts of O’Connor arrived for her second visit. the case ... .” Naturally, the student – But it took the work of KU Law actually Professor Bob Jerry – wasn’t School Dean Mike Davis in 1983 to prepared, and Kingsfield gave his best gain the appearance of a different sort re-enactment of the “you are a worthof speaker to Jimmy Green Hall, someless excuse for humanity” speech before one whose life’s work had nothing to breaking out of character and cajoling do with law practice. Yet, at the same the class for another 30 minutes. time, his identification with our profesBut just how Houseman intersected sion was, in the eyes of the public, the with KU is a story never fully told. Undefining aspect of his long career. And til now. Mike Davis remembers: if that sounds like a riddle, then con“Less than a month before this took sider it’s the first and last time the guest John Houseman speaking at the University place I read or heard that Houseman of honor won an Academy Award for of Kansas School of Law in 1983. was coming to KU. The appearance was Best Supporting Actor. So if you don’t know the story of John in the evening. ‘Paper Chase’ was about nine years old, and I Houseman’s visit to Green Hall, prepare to be enlightened. figured darn near everyone in the School would have either Although Hollywood has produced countless movies about seen it or wish they had. So 10 seconds after learning he was the practice of law, there is but one about law school. And booked I was on the phone with the full-time director of the that’s “Paper Chase.” If you haven’t seen the movie, rent it organization, begging for at least an hour in the afternoon now. Released in the fall of 1973, Roger Ebert described the before his evening gig. I think I also sweetened the pot a bit movie as “about an aggressive, very bright, terribly engaging by offering to share some expenses. Though initially reluctant, first-year student [John Hart] at Harvard Law School. The she eventually agreed on the condition that it was okay with movie respects its hero, respects the school, and most of all Houseman. That proved to be no problem; he loved playing respects the venerable Professor Kingsfield, tyrant of contract Kingsfield. We then spent the next couple weeks arranging the law.” Kingsfield, played by Houseman, became the face of the circumstances. ... I decided against having him call on a real, law professor, and across the country, law schools claimed to live student. Too much risk of heart failure. So I recruited a have their own Kingsfield. (At KU it was Ray Goetz.)

Kingsfield delivers two lines that are now part of pop cul- young faculty member to play the foil. It was a smash.

“I also had 20-30 minutes with Houseman in the Dean’s ture, every bit as legendary as the line uttered in the GodfaOffice before we went downstairs. Then 82, he was delightfulther when Michael Corleone, describing how singer Johnny ly warm and witty. I remember we talked a bit about the only Fontane escaped an unfavorable contract with a bandleader person on earth we both knew, composer Virgil Thompson. who initially wasn’t negotiating, until he met the Godfather: Then I remembered just enough about his Mercury Theater “My father made him an offer he couldn’t refuse.” In “Paper days to get him rolling about working with the 20-year-old Chase,” Kingsfield calls a first-year student forward – Hart, it turns out – offers him a dime, and says: “Call your mother genius, Orson Welles. He was hilarious on that topic. Anyand tell her you will never be a lawyer.” Kingsfield offered a way, the whole thing was a complete blast.” Indeed.

It was Oscar Wilde, who held in his 1889 essay “The Decay second tidbit, one picked up by real law professors and incorporated into lectures even today – “You teach yourselves the of Lying” that “Life imitates art far more than art imitates law. I train your minds. You come in here with a skull full of life.” On October 15, 1983, in classroom 101, life and art became one. n mush, and if you survive, you’ll leave thinking like a lawyer.”

Following the movie, Houseman went on to star in a TV series, “Paper Chase,” for seven years, which is an eternity by About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon today’s network standards. And on October 15, 1983, Houseman came to Green Hall. This is how “The KU Laws” de- since 1985. He may be reached at mkeenan@shb.com.

12 June 2010 | The Journal of the Kansas Bar Association

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Members in the News Changing Positions

John E. Angelo has joined AECOM Technology Corp., Arlington, Va. Christopher E. Biggs, Topeka, has been appointed Kansas secretary of state by Gov. Mark Parkinson.

Brian J. Christensen has joined Spencer Fane Britt & Browne LLP, Overland Park.

David C. DeGreeff has joined Shamberg, Johnson & Bergman Chtd., Kansas City, Mo. Michael J. Eason has joined Vincent, Fontg & Hansen LLC, Kansas City, Mo, as of counsel.

Mojirayo S. Fanimokun has joined the Wichita Area Association of Realtors, Wichita.

Jennifer M. Hill and Donald H. Snook have become partners at McDonald, Tinker, Skaer, Quinn & Herrington P.A., Wichita.

Robin L. Hathaway has joined the U.S. Attorney’s Office, Wichita, as a special assistant.

Jodi M. Hoss has been promoted to partner of Sonnenschein, Nath & Rosenthal LLP, Kansas City, Mo. Daniel E. Kuhn has joined Berman & Rabin P.A., Overland Park.

Terrence E. Leibold has joined Petefish, Immel, Heeb & Hird LLP, Lawrence.

Lynn S. McCreary has joined Fiserv Inc., Brookfield, Wis. Brian W. McEachen has joined South & Associates P.C., Overland Park.

Michelle L. Marvel has joined Bartimus, Frickleton, Robertson & Gorny P.C., Leawood.

Casey Y. Meek has joined Joseph & Hollander P.A., Topeka.

Bradley C. Mirakian has joined Snyder Law Firm LLC, Leawood.

Joshua Ney has joined the Jefferson County Prosecutor’s Office, Valley Falls, as assistant prosecutor.

Chris R. Pace has been elected as shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C., Kansas City, Mo. W. Jack Peggs has joined Martin & Churchill Chtd., Wichita.

Julie A. Roth has joined Sisters of Charity of Leavenworth Health System, Lenexa.

Seamus P. Smith has joined the Will and Trust Center, Leawood.

Changing Locations

Todd M. Allison has started the Law Office of Todd M. Allison P.A., 200 W. Douglas, Ste. 250, Wichita, KS 67202.

Rebecca A. Auriemma has started her own practice at 105 W. Kansas, Ste. A, Liberty, MO 64068.

Brian D. DeFrain has opened the firm, eAutoLaw, 9393 W. 110th St., Ste. 500, Overland Park, KS 66210.

Brown & Crouppen P.C. has moved to One Metropolitan Square, 211 N. Broadway, Ste. 1600, St. Louis, MO 63102.

Christopher J. Hanson has started Hanson Law Firm LLC, 6005 Johnson Dr., Ste. C, Mission, KS 66202.

Eric A. Morrison has started Morrison Law LLC, 5350 W. 94th Terr., Ste. 205, Prairie Village, KS 66207.

Sarah L. Newell has started the firm of Newell Law Office LLC, 200 W. Douglas, Ste. 250, Wichita, KS 67202.

Rachel B. Ommerman has moved to 15280 Metcalf Ave., Overland Park, KS 66223.

Meagan L.P. Patterson has moved to 11181 Overbrook Rd., Ste. 200, Overland Park, KS 66212.

Dayna R. Terrell, Attorney at Law, has moved to 630 Minnesota, Ste. 105, Kansas City, KS 66101.

Miscellaneous

James R. Bartimus, Leawood, has been inducted into the International Academy of Trial Lawyers.

Frieden & Forbes and Davis, Unrein, Biggs & Head LLP both of Topeka, have merged forming Frieden, Unrein, Forbes & Biggs LLP. Jeffrey T. Klaus, Wichita, is a new member of the board for the Center of Hope.

Stephen R. McAllister, Lawrence, has been elected a member of the American Law Institute.

Douglas L. Stanley, Wichita, is the chair of the Greater Wichita Economic Development Coalition steering council.

Michelle R. Stewart, Overland Park, has gained membership in the Federation of Defense & Corporate Counsel.

W. Russell Welsh was recently re-elected to his fourth term as chairman and chief executive officer of Polsinelli Shughart P.C., Kansas City, Mo. Matthew Dean Wright, Wichita, is now a member of the board of directors of the Genesis Foundation for Fitness & Tennis.

Deryl W. Wynn, Kansas City, Kan. has been appointed by Gov. Mark Parkinson to the University of Kansas Hospital Authority. n 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.

Legislative & Case Law Institute Videotaped Program

June 18 – Lenexa, Topeka, and Wichita June 26 – 18 Kansas sites & Washington, D.C. June 30 – Kansas Law Center, Topeka

KBA Continuing Legal Education: Your partner in the profession

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INCLUDES: 2010 Kansas Annual Survey

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Session II: 1:25 - 5:10 p.m.

Credit Hours: Approved for 8.0 CLE credit hours, including 2.0 hours PRC Each session is 4.0 CLE credit hours, including 1.0 hour PRC The Journal of the Kansas Bar Association | June 2010 13

Obituaries Arthur A. “Tripp” Anderson Arthur A. “Tripp” Anderson, 62, died April 6, at his home in Lawrence. He was born January 21, 1948, in Lawrence, the son of Lowry F. Anderson and Wanda (Johnson) Anderson. He graduated from the University of Kansas with a Bachelor of Arts degree in English education and later a Master of Arts degree in classics in 1971. He graduated from KU Law School in 1986 with a Juris Doctor and then went on to teach school in Paola and Kapaun High School in Wichita.

Anderson later became a tax and corporate attorney. He was involved in setting up the Laura Kriz and Libuse Fiorito Charitable foundations, which eventually funded the renovation and now manages the Castle Tea Room in Lawrence. He was also instrumental in the formation of several other local trusts and foundations. Anderson was a frequent adviser to the Lawrence Preservation Alliance, served on the Horizon 2020 Lawrence Planning Committee, and was involved in preserving the Union Depot.

He was an Eagle Scout and an active member of the Boy Scouts of America in Lawrence, serving as cub master of Pack 3053; Camp Bromelsick Foundation Committee board member; and former commissioner for Troop 59 and Pack 3053.

Anderson was a member-at-large for Pelathe District Committee and held the Scouter’s Key, Commissioner’s Honor, and the District Award of Merit. He was a member of the Kansas and Douglas County bar associations.

Anderson is survived by his wife, Mary Stanford, of the home; his father, Lowry F. “Andy” Anderson, of Lawrence; two sons, John Clement Anderson, of Pescara, Italy, and Alexander Stanford Anderson, of Rome; one brother, Lowry F. “Andy” Anderson Jr., of Overland Park; and one sister, Rebecca Sue Anderson, of Jouques, France. He was preceded in death by his mother.

Kenneth P. Stewart Kenneth P. Stewart, 82, died March 18, at his home in Wichita. He was born July 2, 1924, in Salina, to Everett Emerson and Irene Marguerite Stewart. He received Japanese language training in the military and served with the reconstruction forces in Japan after World War II and then attended the University of Michigan School of Law. After graduation in 1950, he moved to Wichita and joined the law firm of Boyer, Hondros & Donaldson (which later became Boyer, Donaldson & Stewart and then merged with Gilliland & Hayes).

Creating solutions was Stewart’s passion and, with his leadership, the Kansas Health Foundation grew out of the sale of Wesley Medical Center, the Kansas and Wichita bar associations embraced alternative dispute resolution, and Kansas Health Ethics was founded. For all of his work, Stewart was recognized with the WBA’s President’s Award in 1995 and Lifetime Achievement Award in 2001, the KBA Distinguished Service Award in 1991, the Wichita Medical Research and Education Foundation’s Quality of Life Award in 1993, and the Howard and Jeanne Johnston Award for Global Community Citizenship in 2002. Stewart was active in Camp Fire Girls, United Way, Churches for Peacemaking, Friends of Jesus, Peace and Social Justice Center, Wichita Neighborhood Justice Center, Communities United Credit Union, Kansas Health Ethics, Wichita Medical Research and Education Foundation, Wichita Community Theater, Global Learning Center, Kansas Respond, and Inter-Faith Ministries.

Stewart is survived by his wife, Marjorie Stewart, of the home; three daughters, Gail Stewart, of Albuquerque, N.M., Julie Russell, of Wichita, and Marti Stewart, of Minneapolis; four siblings, Everett Stewart, of Rialto, Calif., Jan Romano, of San Diego, Jim Stewart, of Lawrence, and Vivian Hanson, of Wichita; and five grandchildren. He was preceded in death by one brother, Bob Stewart. n

KWAA Gears up for Annual Lindsborg Conference – July 15-17

By Nancy Ogle, Ogle Law Office LLC, Wichita, nancy@ogle-law.com

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ach year the Kansas Women Attorneys Association (KWAA) holds its annual conference at Bethany College in Lindsborg, Kan., and each year the organization aims to provide at least 12 hours of informative, inspiring and entertaining CLE. KWAA’s 21st Lindsborg Conference will be held July 15-17. This year’s theme, “Reflect, Reboot and Re-energize: Conquer the Decade Ahead,” is tied to CLEs on wind energy development, green real estate projects, and water law issues. However, there is much, much more to KWAA’s conference.

A highlight of the conference will be the keynote address by Nancy Giles on Thursday, July 15. Giles is a comedian, actress, and frequent contributor for “CBS Sunday Morning” and is known for dismantling misconceptions about race, feminism, and sexism. Giles’ address will be open to the public for a $10 admission fee payable at the door.

The Appellate Court All-Star Review has become a staple at the KWAA conference. This year Justice Carol Beier, Justice Marla Luckert, Judge Patrick McAnany, and Judge Michael Buser have agreed to discuss notable appellate decisions from the past year in a 2.0 CLE. There will be several opportunities to earn ethics hours, including a CLE designed to guide law14 June 2010 | The Journal of the Kansas Bar Association

yers through the ethical minefield of responding to friendly requests for free legal advice at social gatherings. KWAA is embracing 21st century technology by offering a CLE on trademarks in cyberspace. In addition, the Hon. David Waxse will present his program on electronic discovery and electronically stored information. A non-CLE program on campaigning for office and political appointments will also be offered.

At lunch on Friday, July 16, the Hon. Ann L. Dixson will speak on surviving disaster and building a sustainable court.

As a magistrate judge in Greensburg, Dixson has significant personal experience in this area.

As any attendee of past conferences will testify, KWAA’s conference has a casual atmosphere and plenty of opportunities for browsing and buying in Lindsborg’s unique galleries and shops. Nearly 200 attorneys and judges attended the 2009 conference, which means there is a lot of networking, catching up with old friends, and making new ones. And no Lindsborg Conference experience is complete without a trip to the Öl Stuga where legal theories are debated over adult beverages. (continued on Page 40) www.ksbar.org

Come On … Do I Really Need a Paralegal?

By T.R. Evert, Sanders Warren & Russell LLP, Overland Park, t.evert@swrllp.com

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any attorneys and offices around the country function just fine without the use of paralegals (or legal assistants) who “assist lawyers by researching legal precedent, investigating facts, or preparing legal documents.”1 Many more law offices, corporate legal departments, and courts benefit every day from the use of trained paralegals who use skills, developed either through years of experience or through education, to enhance the attorney’s efficiency. Of course, a paralegal is only as good as he or she is motivated to be.

According to the U.S. Department of Labor,2 some of the skills needed to be a paralegal are time management, active listening, active learning, critical thinking, and judgment and decision-making, in addition to the traditional clerical-type abilities of oral and written communication and organization.

Time Management: Organizing your own time and the time of others. It is the paralegal’s responsibility to alert the attorney when a critical deadline is approaching and suggest adjusting priorities to focus on completing any tasks to meet the deadline.

Active Listening: Giving others your full attention so you understand all points being made and asking appropriate questions.

Active Learning: Applying new information learned to current situations and thinking of ways to apply the same information in other situations that arise.

Critical Thinking: Thinking logically to pinpoint strong and weak aspects of a matter, then devising alternate solutions.

Judgment and Decision-Making: Analyzing every possible solution, and its effect, to reach a reasonable conclusion.

A good paralegal can prepare affidavits, legal correspondence, pleadings, wills, contracts, and many other legal documents (all under the supervision of an attorney, of course), in addition to filing pleadings with the court. A good paralegal can meet with clients and other people involved with a particular matter to gather information for presenting to, and discussing with, the attorney without giving advice to the client. Paralegals who gather and analyze statutes, legal articles, court filing procedures and requirements, codes, and various other documents can make the difference between quick efficient decisions or long drawn out scattered situations that create greater risk to the client. A paralegal can “watch your back” and help identify potential unexpected surprises.

Sure, everyone knows it takes time and effort to reach a level of trust and comfort with a new team member. However, once an attorney and paralegal reach that point of working well together, the attorney’s life can be considerably less stressful … who knows, you might even get caught up on all those tasks FOOTNOTES 1. U.S. Department of Labor, Details Report for Paralegals and Legal Assistants, available at http://online.onetcenter.org (April 2010).

2. Id.

www.ksbar.org

that hang over your head day after day; or better yet, offload nagging follow-up tasks to your paralegal.

What does all this mean? It means that if your office does not take the role of a paralegal seriously, you are missing an opportunity to create an efficient practice and more manageable life. n About the Author Tamarha R. Evert is a paralegal in the estate planning and business services division at Sanders Warren & Russell LLP, Overland Park. She received a finance degree from the College of Southern Nevada, Las Vegas, 1994; a paralegal studies certificate from Phoenix College, Phoenix, 2001; and passed the certified paralegal exam with the National Association of Legal Assistants/ Paralegals, 2002. Evert is actively involved with the Kansas Bar Association Paralegal Committee and the Real Estate, Probate and Trust Law Section, and the Heartland Paralegals Association (formerly the Heartland Association of Legal Assistants), based in the metropolitan Kansas City area.

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The Journal of the Kansas Bar Association | June 2010 15

Recovery is Possible

By Steve Smith, Gates, Shields and Ferguson, Overland Park, stevesmith@gsflegal.com

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his article was written to demonstrate that recovery is possible. It was also written in the hope it will help other lawyers who suffer from depression. I do not think of myself as a “success story,” but rather a “work in progress.” But if there is a chance it will provide hope to another lawyer, I gladly tell my story.

Immaturity, lack of self-esteem, and situational depression caused me to make a host of bad choices, which led to my disbarment from the practice of law in 1991; I stole money from my firm. For a more detailed recitation of my misconduct you can read In re Smith, 249 Kan. 227, 814 P.2d 445 (1991).

Disbarment was the bottom of a spiral path I had been on for many years. My lack of self-esteem was later determined to put me in the lowest 3 percent of the population.

The only place I felt confident and self-assured was at work – in particular in the practice of law. Yet, I made choices which inevitably led to what appeared to be the end of that part of my life.

Problems which resulted in my disbarment included a pattern of living beyond my means. When I finally reached the point of not paying taxes, I believed I had crossed a line of no return. At that point, I thought there was no way for me to ever “catch up” on the unpaid taxes. From that point on, suicide appeared to be a way of solving the problems. My episodic depression had reached a new extreme.

I was well aware that suicidal thoughts were a classic symptom of depression, yet I could not put that label on myself at that time. My depression was not one of chemical imbalance that could be alleviated with medication. Rather, it was situational. Probably the most atypical aspect of my depression was that I was able to function as a lawyer even when severely depressed. But depression altered my view of reality such that suicide made sense.

The road to recovery is not an easy or fast one. Initially, I reported my misconduct to the disciplinary administrator. At first, I moped around the house, embarrassed to go out or talk to anyone. But I began to discover how generous and supportive people can be. A law school friend learned I had left my old firm, but the firm gave him no explanation. He drove

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to Wichita to find out what had happened. He offered work to provide me an income and something to focus on. Other lawyers, even some I did not know very well, hired me on a contract basis.

Al Kamas then offered to hire me as an associate with the full expectation that I would be disbarred. He said at that point I could work as a Steve Smith legal assistant.

By this time, about eight months after my resignation, I was functioning, but had made no step to real recovery. A friend suggested I see a psychologist. I had seen other counselors and they had not helped. But Tom Graff helped me turn my life around. We began a long and well-planned process. I started with individual sessions; he gave me “homework” in the form of books to read and essays to write. Ultimately, he persuaded me to participate in group workshops and therapy sessions. I finally recognized the issues in my life and learned methods of dealing with them that were not destructive.

I went through the ethics investigation and subsequent disbarment, divorce, bankruptcy, diversion from criminal prosecution, and a compromise agreement with the Internal Revenue Service. Kamas kept me on as a legal assistant even after a decision in a subsequent ethics case severely limited what I could do as a disbarred lawyer.

Five years after my disbarment, and after the therapy and resolution of the issues I had been facing, I believed I was fully rehabilitated, so I applied for reinstatement. I was turned down the first time. I continued to work as a legal assistant, and after a number of years, decided to make one more application for reinstatement. This time, the Supreme Court granted the gift of a second chance.

But this article is not about my reinstatement. It is to demonstrate that changes are possible for anyone willing to reach out and accept the help that is available. The hard part is taking the first step of asking for that help. n

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16 June 2010 | The Journal of the Kansas Bar Association

• Depression • Substance Abuse (alcohol or drugs) • Family Issues C  K L A P.

I’   . www.ksbar.org

Welcome Spring 2010 Admittees to the Kansas Bar Jasmine Jamal Abou-Kassem Pearlene M. Anklesaria Caroline A. Bader Vedrana Balta Elizabeth M. Becker Joshua A. Bender Jonathan Edward Benevides Faiza Bergquist Jennifer Lauren Berhorst Gregory Stephen Joseph Beuke Tobi M. Bitner Krista Louise Blaisdell Marcela C. Blanco-Mendoza Heather LeAnn Botter Stephine Brooke Bowman Sara Christine Bruchman Tyler Mitchell Burger Charles William Bush Sara Kay Butler Wade M. Carter Lih C. Chen Laci Lee Clark Michael Neil Clark Robert Alton Clarke Karen Rebecca Collier Jane Colonno Jerald J. Cook Michael T. Crabb Michael Eugene Crowley Amberlynn Michelle Curry Jennifer Lynn Dahlstrom Michael Andrew Dallmeyer Aejaz A. Dar Jeffrey Ford Dasenbrock Ronald D. Dees Melody R. Dickson Coleman Robert Ellis Allison McKinsey English Matthew Richard Erb Alison Lin Erickson Ryan Christopher Evans Douglas Charles Farchmin Kimberly Donica Farha Jacob Gibian Fishman Nicole Forsythe Cory James Gallagher Lisa Ann Littell Smith Gilbreath Jeremy Gillissen Dana Good Wendy A. Gorman Matthew Scott Grabner www.ksbar.org

Nedda Haeri Jameia Ann Haines Danielle Marie Hall Julia Marie Hargraves Stacy N. Harper Sean Michael Andrew Hatfield Randi Leigh Helms John Alexander Herman David Allen Hickey Tiffany Diane Hogan Heath William Hoobing Nancy D. Hudson Donna Lorraine Huffman Cullin Bren Hughes Ashley S. Hutton Jerrick L. Irby Kathleen Elizabeth Irish Jessica Blakely James Jamie Leigh Jones Ross D. Keeling Kathleen Marie Kennedy Alicia Marie Kirkpatrick John Kitchens Thomas E. Knutzen Anna Marie Krstulic Tomas Kucera Christopher Lee Kurtz Ashley J. Larson John Matthew Leavitt Ida MiJean Lee Meghan Elizabeth Lewis Daniel J. Lobdell Adam Michael Mack Jessica Rene Madrid M. Yoel Malashock Justin L. Martin Joshua Robert Maupin Claire Elizabeth McClintic Ryan Patrick McPherson-McNearney Terence Ryan Merrigan Ryan Gibson Metzler Angela Marie Meyer Michael Stevens Meyer Marc Nelson Middleton Joshua Scott Mikkelsen John Michael Molle Jr. Mark Daniel Molner Daniel Morris Michael Timothy Mortensen Jennifer Michelle Moyer

Zoe Forrester Newton Ivan L. Nugent Craig Nathan Olsen Thomas Roy Onik Lara Krigel Pabst Anne Jenelle Pleviak Theresa Denise Poindexter Noah Chase Pollack Kahlea Monet Porter Andrew I. Reed Jessi Rebecca Reed Garett Relph Grant C. Richter Melissa LeaAnn Riley Shane Allen Rosson Jason Michael Salinardi Sean Kenneth Scally Shawn Michael Scharenborg Andrew J. Schermerhorn Andrew Owens Schulte Sara Elizabeth Schwermer-Sween Laura Elizabeth Seaton Russell A. Shaver Bethany Munyan Shelton Kimberly Rose Shipp Blake Armstrong Shuart Michael C. Skidgel Gavin Lee Smith Monica Janae Smith Andrew Thomas Snyder Rachel Diana Stahle Erik William Stanley John David Stasny Theresa LouAnn Staudinger Michael Stipetich Timothy Michael Swanson Aaron Jason Taber Mark Bryce Teerink Micah David Trotti Patrick Michael Vogelsberg Meghan Kathleen Voracek Brian Wathen David J. Welder Anna Marie Wenzel Kelsey Dyan Whitt Kevin Wichman Sue Kennedy Willman Jeffrey Joseph Williams Mitchell Evan Wood Lauren Conard Young

The Journal of the Kansas Bar Association | June 2010 17

18 June 2010 | The Journal of the Kansas Bar Association

www.ksbar.org

Law Practice Management Tips & Tricks Credenza – Fast, Cheap, and Easy Case Management

By Larry N. Zimmerman, Valentine, Zimmerman & Zimmerman P.A., Topeka, larry@valentine-law.com

T

he benefits of case management software are often hard to convey to attorneys. It can be expensive, hard to configure, and often even harder to use, but most attorneys who make the leap would never dream of giving it up. What has been missing is a gateway drug – software that overcomes reluctance and offers the mind-blowing experience of powerful case management software. Gavel & Gown, creators of Amicus Attorney, now fill that gap with an intriguing new product called Credenza.

Credenza is a plug-in for Microsoft Outlook that offers case management to small firms and solo practitioners, and its most interesting feature is its cost model. Forget the high entry costs of case management software and skip over the expense from a steep learning curve. Credenza installs in minutes and costs just $9.95 per month while leveraging existing Outlook skills in new ways.

Credenza even allows shared access for up to three users to collaborate on cases as part of that single license fee.

So what does Credenza do?

Files Create a new file with Credenza and collect any related Outlook event in that file – contacts, e-mails, appointments, tasks, and notes can all be gathered in that one file. Filing is simplified with rules that gather relevant items to the file automatically. The resulting file gives single-point access to every Outlook item associated with it in one convenient place instead of spread throughout the various Outlook tools. Items do not even have to originate in Outlook to be organized by Credenza; documents on local or shared network drives may also be associated with files in Credenza.

Unlike a paper file with every item tossed in willy-nilly, a Credenza file is organized in convenient tabs. Click the Email tab and all e-mails relevant to the file are listed where you can see the entire history or click through to a specific message. The Chronology tab shows every event in order while the Custom tab allows filtering specific file items or events according to rules the user configures.

Phone Calls Credenza provides new features to handle tracking phone calls as well. At the higher levels, it can integrate Outlook with the phone line and provide one-click calls to contacts from within Outlook. Starting or answering a call can automatically provide a note screen to document the conversation as well as timing the call for billing purposes. The workgroup feature of Credenza lets your assistant ditch the “While you were out” pad and create a clickable call back task instead. All phone calls and related records can be automatically filed by matter like any other Outlook task or document.

www.ksbar.org

Time Time accounting is the third main feature Credenza adds to Outlook. Timekeeping is user configurable to be automatic as you work with Outlook e-mail, phone calls, or tasks. There are also timers available at the click of a button to begin timing specific events not captured by the automatic timers. All time entries are viewable in the file view of a matter where they can be amended or corrected and printed out for billing and reporting purposes. Time entries are exportable to most accounting software, including Quicken and Peachtree as well.

Test drive Credenza is available for a 15-day free trial at www. credenzasoft.com. There is no registration required for the test drive and no personal information is requested for marketing purposes. More significantly, Credenza does not make permanent changes to your Outlook database. The features of Credenza are provided by linking Outlook out to a secondary (encrypted) database. If you stop using Credenza, nothing bad happens; Outlook goes back to its day job and your Credenza data is available for use in Excel or for import into a different case management tool.

This is good news because our initial tests with Credenza hit a speed bump. (When support warns you to update Windows and Outlook, you ought to listen.) Our first install hit snags over an outdated version of the required Microsoft .NET Framework. It is a simple fix, though, and the potential of Credenza is so great (and the cost so reasonable) that we will make another test run. There really is nothing else out there like Credenza. n About the Author Larry N. Zimmerman, Topeka, is a partner at Valentine, Zimmerman & 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 Credit Attorney 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 president-elect and legislative liaison.

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

The Journal of the Kansas Bar Association | June 2010 19

20 June 2010 | The Journal of the Kansas Bar Association

www.ksbar.org

Legal Article: Civil Code and Time Computation ...

I. Introduction If my former Civil Procedure students remember nothing else from my course, they will remember my oft-repeated admonition, “Don’t think great thoughts! Read the rule!” That admonition is of renewed importance after the passage of 2010 House Bill 2656, which amends every section of the first three articles of the Kansas Code of Civil Procedure, effective July 1, 2010.

HB 2656 is the product of two years of study by the Kansas Judicial Council’s Civil Code Advisory Committee (Committee). By adopting it, Kansas becomes the first state to conform the text of its civil code to the restyled Federal Rules of Civil Procedure, which became effective December 1, 2007. Kansas also becomes the first state to conform its statutes to the time computation amendments of the Federal Rules, which became effective December 1, 2009. These changes affect not only the civil code but also the probate, juvenile, and criminal codes and other sections setting time limits. In addition, HB 2656 adopts significant substantive amendments, resulting from the first comprehensive review of the Kansas civil code since another two-year study led to amendments of 33 sections in Chapter 60 in 1997.1 The substantive changes range from adopting some earlier Federal Rules amendments that Kansas had not adopted and separate 2009 amendments that did not involve time computation to correcting drafting errors in sections that are unique to Kansas and adopting improved procedures, such as the Uniform Interstate Depositions and Discovery Act. The text of the enrolled bill, including conference committee amendments, is available on the Kansas Legislature’s website.2 This article discusses by topic the most important changes HB 2656 makes. The Civil Code Advisory Committee’s report includes detailed section-by-section comments that describe each change. The report is available on the Judicial Council website.3 The comments incorporate pertinent comments of the Federal Advisory Committee on Civil Rules. Practitioners should consult the report for guidance on specific issues of interpretation that are too narrow to be included in this article.

The report also identifies instances in which Kansas law was left unchanged even though it deviates from the Federal Rules.

II. The Style Project The Federal Advisory Committee rewrote and reformatted each Federal Rule to put it, in essence, in plain English and eliminate ambiguities, inconsistency, and redundancy. The changes were meant to be stylistic only and not to alter substance, but in some instances new language was used to make clear the result the original drafters intended. For sections of the Kansas code that tracked the text of the former Federal Rules, HB 2656 incorporates the federal style changes. Kansas provisions having no counterpart in the Federal Rules were restyled using styling principles similar to those used in the Federal Rules project. The uscourts.gov website sets forth in detail the drafting principles used in the federal style project.4 Some style changes to the Federal Rules will not appear in the Kansas statute book. To improve readability, the Federal Rules indent subdivisions, use commas before the last item of a series, and — when they promote clarity — use dashes www.ksbar.org

rather than commas. These formatting devices were removed by the Revisor of Statutes because they violated the Revisor’s style manual, for example, its prohibition of use of dashes, and because the narrow columns in the Kansas Statutes Annotated don’t accommodate multiple indentations.

The Chapter 60 amendments to Articles 1-3 vary from the Revisor’s drafting principles in one respect. They follow the Federal Rules by eliminating use of the word “shall.”5 The Federal Rules Advisory Committee described the word as “inherently ambiguous” because it “can mean ‘must,’ ‘may,’ or something else, depending on context.”6 Likewise, Kansas courts “have read ‘shall’ to mean ‘may’ where the context requires.”7 The Kansas Supreme Court uses a four-factor test to determine whether “shall” is mandatory or directory.8 The former Federal Rules contained almost 500 “shalls.” Using “context and established interpretation”9 the federal committee changed “shall” to “must” three-fourths of the time, but changed it twice to “will,” 14 times to “should,” 25 times to “may,” and 50 times to a present-tense verb. In another 35 instances, the word was eliminated altogether through tightened drafting.10 The Kansas Civil Code Committee analyzed Kansas provisions that have no federal counterparts and changed “shall” to “may” in nine sections, to “should” in three sections, and to “must” in the remaining sections. The committee changed one “may” to “must,” in K.S.A. 60-228,11 mandating that a deposition “must be taken” before a person authorized by Kansas law to administer oaths, conforming Kansas law to the Federal Rule. The parties retain the authority under K.S.A. 60-229 to stipulate that the deposition may be taken before any person.

While Federal Rules drafters ruthlessly purged “shalls” not only from the Civil Code but also from the Rules of Appellate Procedure and Criminal Procedure, a single “shall” soon may be reintroduced into Rule 56. As restyled, current Rule 56(c) provides that summary judgment “should be rendered” if the record shows there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. HB 2656 adopts this formulation in amended K.S.A. 60-256(c).12 A pending amendment to Rule 56(c), scheduled to take effect December 1, 2010, unless disapproved by Congress, would restore the pre-2007 language providing that summary judgment “shall be rendered” in those circumstances.

The Federal Advisory Committee’s report concluded that “shall” in Rule 56(c) had become a term of art that had evolved through case law interpretation and that use of any other term risked making a substantive change. In 2007, the Committee chose “should” rather than “must” or “may,” relying on a Supreme Court decision13 and a well-known treatise for the proposition that ‘should’ better reflects the trial court’s seldom-exercised discretion to deny summary judgment even when there is no genuine dispute as to any material fact and the movant seems entitled to judgment as a matter of law.14 However, supporters of “must” can point to language in another U.S. Supreme Court decision15 and the seemingly plain language directing summary judgment when the movant is “entitled” to judgment as a matter of law. Policy arguments support both views. On the one hand, “the importance of The Journal of the Kansas Bar Association | June 2010 21

Legal Article: Civil Code and Time Computation ... summary judgment as a protection against the burdens imposed by unnecessary trial, and also against the shift of settlement that follow denial of summary judgment”16 supports use of “must.” On the other hand, arguments that a trial judge “may have good grounds for suspecting that a trial will test evidence in ways not possible on a paper record” and that “a trial may consume much less court time than would be needed to determine whether summary judgment can be granted”17 support the more flexible “should.” No Kansas appellate decisions discuss this issue. The Kansas Civil Code Committee elected to defer consideration of the proposed Federal amendment until it is certain that it will take effect.

III. New Time Computation Rules HB 2656 conforms the time computation rules in K.S.A. 60-20618 with the 2009 amendments to Federal Rule 6. The changes were summarized in an article in the January issue of this Journal.19 For example, under former law, a different method of counting days was used when the time to act was less than 11 days from a triggering event than when the time was 11 days or more. When the time was less than 11 days, intermediate weekends and holidays were not counted. The rule now takes a “days are days” approach, counting every day even for short time limits. This change is not meant to make short periods of time even shorter. To avoid that result, Federal Rules drafters examined each time period in the Federal Rules and extended short periods to act from, for example, five to seven days and 10 to 14 days to account for the change in the counting rule. They also extended periods of 20 days to 21 days, to reduce the instances in which the last day of the period falls on a weekend, which has its own special counting rule. They made no changes in time periods of 30 days or more. HB 2656 makes the same changes to Articles 1-3 of the Kansas Code of Civil Procedure.

In a few instances, the amended Federal Rules extend time periods significantly, based on a policy judgment that former periods were too short. For example, the federal Advisory Committee concluded that in many cases it is not possible to prepare a satisfactory post-judgment motion for new trial or to alter or amend judgment under Rule 59, for judgment as a matter of law under Rule 50, or to alter or amend findings under Rule 52 within the 10 days allowed by the former rules.

Rule 6(b) and K.S.A. 60-206(b) prohibit a trial judge from extending the time to file these motions, in part because the time to file notice of appeal from a judgment does not begin to run until a timely motion under any of these rules is decided. Because granting a trial judge discretion to grant extensions of time to file these post-trial motions would introduce uncertainty into the calculation of the time to appeal, the Federal Advisory Committee elected to extend the time for filing these motions from 10 to 28 days. HB 2656 conforms K.S.A. 60-259, 60-250 and 60-252 with these rule change.20 A party will have an incentive to file these post-judgment motions well before the deadline if the party needs to invoke the trial court’s authority in K.S.A. 60-262(b)21 to stay execution on the judgment pending disposition of any of these motions. The automatic stay of execution on a judgment in K.S.A. 60-262 and Federal Rule 62 expires 14 days after entry of judgment.

22 June 2010 | The Journal of the Kansas Bar Association

HB 2656 rejects the extension of one federal time limit.

Amended Federal Rule 6(c)(1) extends the time in advance of a hearing on a motion by which the motion and notice of the hearing must be served from five to 14 days. HB 2656 extends the period in K.S.A. 60-206 only from five to seven days, a change that brings it into conformity with Kansas Supreme Court Rule 131. The Kansas Civil Code Committee determined that “state practice has proceedings and motion dockets, such as in domestic matters, where the extended time frame in Federal Rule 6 should not be followed.”22 Similarly, the Committee rejected amended Rule 6(c)(2)’s extension of the time in advance of the hearing in which an affidavit opposing the motion must be served from one to seven days.

HB 2656 does not change one Kansas counting rule, under which Kansas allows more days to file some documents than are allowed in federal court, even though a Kansas statute and its corresponding Federal Rule specify the same period of time to act after the same triggering event. For example, K.S.A. 60-2103 requires that notice of appeal to an appellate court in a civil case be filed within 30 days after “entry of judgment.”

The new 28-day periods for filing post-judgment motions that extend the time for filing notice of appeal are also measured from the “entry of judgment.” The time periods in the Federal Rules are identical.23 However, relying on language in K.S.A. 60-258, which is unique to Kansas,24 and on Supreme Court Rule 131, the Kansas Supreme Court has held that the time for filing notice of appeal or these motions is measured from the date the clerk of the district court serves on the parties a copy of the judgment form or journal entry, which may be later than the date on which judgment is entered.25 Further, because the time for filing is measured from the date of service, K.S.A. 60-206(d) adds three extra days after the period for filing otherwise would expire, if service is by mail.26 One effect is that the total time allowed is unlikely to be a multiple of seven, and the ending date thus is more likely to fall on a weekend, triggering a further extension of the time under K.S.A. 60-206(a)(1)(c) to the next day that is not a weekend or holiday. In federal court, by contrast, time is measured from “entry” rather than “service” of the judgment, so no additional days are added under Rule 6(d). A failure of the clerk to serve a copy of the judgment, which causes a party to miss a deadline for filing notice of appeal, is remedied by authorizing a motion to reopen the time to file notice of appeal.27 The Kansas Civil Code Committee reviewed all time limits of less than 30 days in all articles in Chapters 60 and 61 and changed them using the conventions in the federal time project. K.S.A. 61-2912 and 61-330428 incorporate K.S.A. 60-259 and 60-252 by reference for use in Chapter 61 cases.

As in Chapter 60 cases, if a timely post-judgment motion authorized by K.S.A. 61-2912(i) or 61-3304 is filed, the time for filing notice of appeal in a Chapter 61 case does not begin until after the motion is decided.29 The extension of the time in Chapter 60 cases for filing post-judgment motions under K.S.A. 60-259 and 60-252 from 10 to 28 days would have created an inconsistency when those sections were incorporated by reference in Chapter 61. HB 2656 extends the time in K.S.A. 60-2103a30 for filing notice of appeal in a Chapter 61 case heard by a district magistrate judge only from 10 to 14 days after the entry of judgment. To avoid having the time www.ksbar.org

Legal Article: Civil Code and Time Computation ... to appeal expire before the expiration of the time to file postjudgment motions, HB 2656 amends K.S.A. 61-2912 and 61-3304 to require that these post-judgment motions be filed within 14 days after the entry of judgment when judgment is rendered by a district magistrate judge.

Under K.S.A. 60-206(a), the new time computation rules apply not only to Chapter 60 but also to “any local rule or court order or ... any statute or administrative rule or regulation that does not specify a method of computing time.” Statutes only rarely express time limits in hours31 but court orders do so more frequently, for example in domestic relations cases, so subsection (a)(2) specifies how these periods are counted.

The order may specify another method if the statutory method does not comport with the court’s intent. The default rule is that if the period for an order entered at, say, 3:14 p.m. ends on a weekend or legal holiday, the time is extended until the same time of day (3:14 p.m.) on the next day that is not a weekend or holiday.

Extending application of K.S.A. 60-206 to administrative rules and regulations means state agencies will need to review their regulations and amend them as necessary. Kansas Supreme Court Rule 1.05 makes the time computation rules in K.S.A. 60-206 applicable in the appellate courts. Revisions of the Supreme Court’s appellate and district court rules are anticipated. Unfortunately, the revisions will not be completed before HB 2656 takes effect. When there is a direct conflict between HB 2656 and the court’s rules, the new statute should control. When there is no direct conflict and the “days are days” approach of K.S.A. 60-206 effectively shortens a time period in the court’s rules of less than 11 days, a court should be charitable in granting a motion under K.S.A. 60-206(b) or Rule 5.02 seeking an extension of time to act, even though the motion is made shortly after the time to act has expired.

HB 2656 includes 90 sections amending statutes outside Chapter 60. For time standards in other codes of procedure and statutes outside Chapters 60 and 61, other Judicial Council committees determined what changes were necessary to conform to the changes in the civil code. Other time periods usually were extended to the nearest multiple of seven, for example from three days to seven days in eight sections,32 and from eight, nine, or 11 days to 14 days in five sections.33 However, 15-day periods were shortened to 14 days in 11 sections.34 On the other hand, the 15-day period in advance of the beginning of trial by which an offer of judgment under K.S.A. 60-2002(b) was required to be made was extended to 21 days to accommodate extending the period by which a response to the offer is required from 10 to 14 days in advance of trial.35 Occasionally it was determined that business days were intended, as in K.S.A. 60-258,36 which requires the clerk to serve a copy of a judgment form within three days after its entry, and K.S.A. 38-2373,37 which specifies three- and five-day periods regarding commitment of juvenile offenders.

In these cases, HB 2656 adds language excluding Saturdays, Sundays, and legal holidays. Finally, the “days are days” rule in K.S.A. 60-206 will apply to two sections in which five- or ten-day periods were retained without change.38 Two other technical amendments merit mention. K.S.A. 60206(a)(1) and (5) for the first time make explicit the counting procedure for a backward-looking time period, for example www.ksbar.org

the requirement in K.S.A. 60-226(e)(2) that parties disclose changes in expert witness information “at least 30 days before trial.” The first day counted is the day before trial, and if, in counting backward, the 30th day falls on a weekend or legal holiday, the disclosure is due on the first day before the 30th day that is not a weekend or holiday. Subsection (a)(3) specifies counting rules that apply when the courthouse is “inaccessible” on the day or at the hour of the deadline for filing. There is no definition of “inaccessible” but the term includes situations that are not weather-related. For example, a furlough of court employees could make a courthouse inaccessible.

IV. Substantive Amendments The Civil Code Advisory Committee included in HB 2656 a number of pre-2007 amendments to the Federal Rules, which Kansas had not adopted but which the Committee determined were compatible with Kansas practice. The Committee did not include Federal Rules amendments that previously had been considered but rejected as being inconsistent with established Kansas practice or strong policy, such as mandatory initial disclosures under Rule 26 and the safe harbor from sanctions in Rule 11. The committee also changed a number of statutes that have no federal counterparts.

A. Service of process and jurisdiction 1. Publication service HB 2656 significantly changes the procedure for obtaining service of process by publication. K.S.A. 60-307(c)(1)39 now requires that an affidavit or declaration seeking publication service state “the specific efforts made to ascertain the residence” of each defendant whose residence the party claims is unknown after reasonable efforts to ascertain it. Subsection (c)(2) similarly requires a statement of the specific efforts made to ascertain the names and residences of unknown parties sought to be served under K.S.A. 60-307(a)(5), such as unknown heirs and assigns of a deceased person. A conclusory statement, using the language of the statute, that the party made a reasonable effort to find names or addresses no longer will suffice. Due process requires that the means of service “employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”40 Requiring a statement of the specific efforts made will enable the court to determine whether publication service is consistent with due process before approving proof of service as a prerequisite under K.S.A. 60-307(f ) to entry of a default judgment.

2. Long-arm jurisdiction State long-arm statutes authorizing the assertion of personal jurisdiction over a defendant served outside the state typically fit one of two patterns. Either they list specific acts that, if done within the state, subject defendant to jurisdiction or they authorize the assertion of jurisdiction whenever doing so would be consistent with due process. K.S.A. 60-308 since 1964 has fit the first pattern. The result was that Kansas courts, before reaching the question whether the exercise of jurisdiction was constitutional, often had to resolve a difficult questions of statutory construction to determine whether a statutorily enumerated act covered defendant’s alleged activity.41 On occasion, the court concluded that the statute did not The Journal of the Kansas Bar Association | June 2010 23

Legal Article: Civil Code and Time Computation ... authorize jurisdiction in a case in which it would be constitutional for it to do so.42 The 2006 Legislature added subsection (b)(2) to the long-arm statute, providing that Kansas courts have general jurisdiction over a defendant for a claim that does not arise out of defendant’s activities in Kansas whenever doing so would be constitutional. HB 2656 amends the specific jurisdiction portion of the statute, K.S.A. 60-308(b)(1),43 so that Kansas courts now have jurisdiction over a defendant for a claim that arises out of defendant’s activities in Kansas whenever doing so would be constitutional. The Civil Code Committee saw no policy reason to authorize general jurisdiction over an unrelated claim to the full extent allowed by due process but to restrict specific jurisdiction over a related claims short of the due process limit. With rare exceptions, the party invoking specific jurisdiction is a Kansas resident who is asserting a claim against a nonresident and should be afforded a convenient forum. With the adoption of the new language in subparagraph (L), subsections (A)-(K) could have been repealed, but the committee did not recommend doing so. These subparagraphs provide useful guidance, and case law discussing them usually discusses the constitutional standard as well.44 The deletion of former K.S.A. 60-308(d), specifying details of service of process by return receipt delivery when the long arm statute is invoked is not a substantive change. Subsection (d) differed from K.S.A. 60-303(c) only regarding the person responsible for effecting service, not the details of doing so.

The party seeking service is responsible for out-of-state service under K.S.A. 60-308, while the sheriff ordinarily is respon-

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sible for in-state service under K.S.A. 60-303. It is sufficient that K.S.A. 60-308(a)(2) requires that out-of-state service by return receipt delivery be made by a party in the manner specified in K.S.A. 60-303(c).

3. Service in garnishment actions HB 2656 adds subsection (f ) to K.S.A. 60-303,45 providing additional methods of service in garnishment actions. It makes available in Chapter 60 garnishments the same methods of service already available in Chapter 61 garnishments.

Subsection (f ) is a restyled version of K.S.A. 2009 Supp. 613003(g). It permits service on a garnishee using an e-mail address designated by the garnishee, as provided by Supreme Court rule, or using a fax number designated by the garnishee. It also permits the garnishee to be served by first-class mail unless it is returned undelivered.

B. Pleadings and motions 1. Service of documents by e-mail Amended K.S.A. 60-211(a),46 tracking the federal rule, requires that every pleading, written motion, and other paper include the signer’s e-mail address. The 2007 Federal Advisory Committee commented that “[p]roviding an e-mail address is useful, but does not of itself signify consent to filing or service by e-mail.�47 In Kansas, however, new K.S.A. 60-205 (b)(2)(F)48 permits service by electronic means “when authorized by Supreme Court rule or a local rule.� Technical Standard (J)(1)(d) of Kansas Supreme Court Rule 122 provides that a “party consents to service by electronic mail by . . . serving a pleading which includes the party’s electronic mail address on the pleading.� Nothing in this standard restricts its application

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24 June 2010 | The Journal of the Kansas Bar Association

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Legal Article: Civil Code and Time Computation ... to districts that have adopted electronic filing. Thus, compliance with the new requirement in K.S.A. 60-211(a) triggers consent to service by electronic mail even in districts that have not adopted electronic filing.

More broadly, several sections of the code have been amended to accommodate future expansion of electronic filing and service. Electronic methods in addition to fax transmissions may be used when they are authorized by Supreme Court rule.49 2. Sanctions for unsupported pleading or paper HB 2656 makes a substantive change to K.S.A. 60-211(c) to conform to a 1993 federal amendment. The bill provides that when the court finds that a party has violated its representation under subsection (b), the court “may impose” an appropriate sanction, rather than the former “shall impose.”

The change recognizes that there can be cases, such as one involving a pro se litigant, in which a violation of subsection (b) should not result in a sanction and that the existing section already confers a measure of discretion for the court to determine an “appropriate” sanction and whether subsection (b) was violated. In the view of practitioners on the Civil Code Committee, this is one “shall” that courts have been interpreting as “may.” The committee believes the rejection of the 1993 federal amendment was based on opposition to the safe harbor from sanctions rather than to recognition of some discretion in imposing sanctions.

3. Amended pleadings Tracking 2009 changes to Federal Rule 15, amended K.S.A. 60-21550 alters the time in which a party may amend its pleading once as a matter of right, shortening the time in one situation and lengthening it in another. Under former law, if the pleading was one to which a responsive pleading was required, the filing of a motion under K.S.A. 60-212, including a motion to dismiss for failure to state a claim, did not affect the pleader’s ability to amend once without leave of court.

Amendment was of right even after an order ruling on the motion as long as no responsive pleading had yet been filed and the order did not expressly cut off the right to amend.

Under HB 2656, the right to one amendment without leave of the court expires 21 days after service of a motion under K.S.A. 60-212(b), (e), or (f ). The change creates an incentive for the pleader to consider promptly the arguments in a motion. As the Federal Advisory Committee explained, “A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.”51 On the other hand, under former law when no pre-answer motion was made, service of a responsive pleading immediately cut off the right to one amendment.

Now, amendment continues to be of right if the amendment is served no later than 21 days after service of the responsive pleading. Like a pre-answer motion, a responsive pleading may identify issues the original pleader had not considered, justifying a prompt amendment of right.

Former K.S.A. 60-213(f ) granted a trial court authority to permit amendment of a pleading to add a counterclaim “if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires.” Arguably, this subsection established a different standard for allowing an amendment www.ksbar.org

from the ordinary standard in K.S.A. 60-215. In addition, it called into question whether the relation-back provision in K.S.A. 60-215(c) applied to an amendment under K.S.A. 60-213(f ). HB 2656, consistent with a 2009 federal amendment, repeals K.S.A. 60-213(f ). The court still may permit an amendment to add a counterclaim, but it will be governed by K.S.A. 60-215.

Finally, amended K.S.A. 60-215(c)(1) adopts a 1991 amendment to the Federal Rule. It permits relation back of an amendment when “the law that provides the applicable statute of limitations allows relation back” even if the Kansas requirements for relation back in subsections (c)(2) and (c)(3) are not met. Of course, the Kansas statute of limitations ordinarily applies to an action brought in Kansas. On occasion, however, Kansas applies the statute of limitations of another state, such as when K.S.A. 60-516, the borrowing statute, applies.

4. Other changes Under amended K.S.A. 60-207(a)(3),52 the responsive pleading to a counterclaim now is denominated an “answer,” rather than a “reply.” The term “reply” now is confined to a pleading that responds to an answer, and it is allowed only when the court orders a reply.

Finally, amended K.S.A. 60-205(d)(1)53 adds to Kansas law for the first time a requirement that most lawyers no doubt always thought was there, a requirement to include a certificate of service with any paper after the petition that is required to be served. That requirement has been part of Federal Rule 5 since 1991, when an amendment essentially codified existing practice.

C. Joinder HB 2656 conforms the class action statute, K.S.A. 60223,54 to the extensive 2003 amendments to the Federal Rule.

New subsection (g) specifies procedures to be followed and criteria a trial court must consider in appointing class counsel for a certified class. New subsection (h) specifies procedures to be followed in awarding attorney’s fees and nontaxable costs.

Amended subsection (e) strengthens the trial court’s role in approving a settlement or voluntary dismissal of a class action, requiring a hearing to determine if a proposal that would bind class members is fair, reasonable, and adequate and requiring disclosure of any agreement made in connection with the proposal. To resolve an ambiguity, the amendment makes the subsection applicable only to settlement or dismissal of a certified class action. Amended subsection (c) grants greater latitude in determining when to hold a class certification hearing, eliminates the authority to grant class certification conditionally, and specifies the required contents of notice to class members when individual notice is required. Counsel in a class action should consult the extensive notes on the 2003 amendments by the Federal Rules Advisory Committee.

The restyling of K.S.A. 60-21955 on compulsory joinder eliminates the awkward term “contingently necessary party.”

Now, the section simply defines the circumstances in which a person must be joined as a party. New subsection (e) is the only amendment that did not originate with the Civil Code Committee, rather it originated in a separate bill.56 In an action in which “any relief sought would determine title or affect a security interest in real property,” it requires joinder of “a nominee of record on behalf of a beneficial owner of The Journal of the Kansas Bar Association | June 2010 25

Legal Article: Civil Code and Time Computation ... a claimed interest in the property.” This provision responds to Landmark Nat’l Bank v. Kesler.57 Kesler was an action to foreclose a first mortgage in which Mortgage Electronic Registration Systems (MERS) was not joined even though it was shown of record as the holder of a second mortgage. MERS does not loan money but becomes the mortgagee as nominee for the lender, a procedure that apparently facilitates resale of the debt obligation by the lender. The Kesler opinion could be read narrowly, as finding no abuse of discretion in the denial of MERS’ motion to intervene after a default judgment. However, the opinion contains broad language suggesting that the very limited authority MERS has under its agreement with the lender means it lacks the type of interest in the property that would require its joinder under K.S.A. 60-219(a). Subsection (e) requires joinder of the nominee even if the nominee is not a person required to be joined by subsection (a).

K.S.A. 60-21758 is changed in two ways. Consistent with a 1966 amendment to the federal real party in interest rule, a bailee is added to the list of persons in subsection (a) who may sue in their own names without joining the person for whose benefit an action is brought. New subsection (d) adopts a provision that was added to the Federal Rules in 1961, allowing a public officer who sues or is sued in an official capacity to be designated by official title rather than by name, although the court may order that the officer’s name also be added. HB 2656 also adopts a related 1961 federal amendment in K.S.A. 60-225(d), providing for automatic substitution of a public officer’s successor when the officer dies, resigns, or otherwise ceases to hold office during the pendency of an action in which the officer is a party in an official capacity.

D. Default judgment K.S.A. 60-255 has always differed from its federal counterpart, for example, by prohibiting entry of judgment by the clerk and by omitting the federal requirement of a separate entry of default prior to entry of judgment. These variations remain in the revised section. The section formerly did not define when a party is in default, requiring only a “proper showing” of entitlement to a default judgment. HB 2656 adds to subsection (a) the definition of default from Federal Rule 55.59 A party against whom a judgment for affirmative relief is sought is in default when the party “has failed to plead or otherwise defend.” Thus, default occurs when the party has not, by the date its answer is due, served either an answer, a motion under K.S.A. 60-212 that postpones the time to answer until after the court rules on the motion, or some other pre-answer motion that can be construed as otherwise defending the action.60 K.S.A. 60-255 is intertwined with K.S.A. 60208(b)(6), which makes the failure of an answer to deny an allegation, other than one relating to the amount of damages, an admission of the allegation.61 Federal circuits are split on the question whether default judgment can be entered under Rule 55 based upon a post-answer failure to defend, such as the failure to appear at trial.62 Leading commentators agree that once there is an answer to a claim, and to any amendment of the claim, Rule 55 should not be used to enter default judgment.63 Of course, default judgment is available under other sections as a sanction for post-pleading misconduct. For example, K.S.A. 60-237(b)(2)(A)(vi) and (d)(3) include default 26 June 2010 | The Journal of the Kansas Bar Association

judgment among the sanctions available against a party that fails to obey a discovery order, fails to appear for the party’s deposition, or fails to serve answers or objections to interrogatories or a written response to a request for inspection.

K.S.A. 60-216(f ) also authorizes this sanction against a party that fails to appear at a case management or other pretrial conference, is substantially unprepared to participate in the conference or does not participate in good faith, or fails to obey a scheduling or other pretrial order. Indeed, a court may have inherent authority to grant default judgment in other contexts as a sanction for inaction that frustrates the orderly administration of justice.64 The propriety of granting default judgment as a sanction for failure to appear at trial more appropriately should be analyzed as an exercise of inherent authority since the standards for granting default judgment as a sanction and the procedural safeguards to be followed differ from those under K.S.A. 60-255.65 Kansas law on this issue under the former section was unclear. The authors of Vernon’s Kansas Statutes Annoted, without citing supporting authority, asserted that “Failure to attend ... the trial itself, may justify the entry of such a judgment.”66 A number of opinions observed in passing that the trial court had entered a default judgment against a party that did not appear at trial67 but rarely discussed the source of the court’s authority to do so.68 In any event, these precedents are not controlling in construing amended section 60-255.

A default judgment under K.S.A. 60-255 may be set aside on a motion to vacate judgment under K.S.A. 60-260(b). A motion on the most common ground asserted, “mistake, inadvertence, surprise, or excusable neglect” under subsection (b)(1), must be made within one year after the entry of judgment. HB 2656 adds a cross-reference to a motion for relief from judgment under K.S.A. 60-309, which may be made up to two years after entry of a default judgment if the party was served solely by publication in a newspaper and did not receive actual notice of the action in time to appear. There is no requirement in K.S.A. 60-309 to show excusable neglect or inadvertence before the party is entitled to defend the action.

Former K.S.A. 60-309(b) protected a purchaser for value in a private sale of property in reliance on the judgment if no motion was filed within six months after entry of judgment. HB 2656 reduces that period, protecting the purchaser for value if the motion is not filed within three months after entry of judgment.69 This is the same period after judgment during which proceeds of a judicial sale of property under the judgment must be impounded under subsection (c).

E. Discovery and pretrial proceedings 1. Limits on frequency or extent of discovery HB 2656 grants trial judges greater authority to control the frequency or extent of discovery and requires them to exercise that authority in certain circumstances. Previously, K.S.A. 60-226(b)(2) permitted a court to order limits only if it made one of three findings: the discovery sought was unreasonably cumulative or duplicative or could be obtained from another source that was more convenient, less burdensome, or less expensive; the requesting party already had ample opportunity to obtain the information through discovery; or the burden or expense of proposed discovery outweighed its likely benefit. The amended section70 confers discretion to limit the frequency or www.ksbar.org

Legal Article: Civil Code and Time Computation ... extent of discovery for other reasons and conforms to Federal Rule 26(b)(2)(C) by mandating that the court impose limits in the circumstances listed in the former statute merely as permitting the court to impose limits.

2. Proper court for motion to compel response from party Formerly, K.S.A. 60-237(a) permitted a motion to compel discovery on a matter relating to the deposition of a party to be made, at the option of the moving party, either in the court where the action was pending or in the district where the deposition was “being taken.” HB 2656 adopts a 1993 amendment to Federal Rule 37(a), requiring all motions to compel relating to a party’s deposition to be made in the court in which the action is pending.71 That court can resolve disputes about discovery from parties based on familiarity with the entire case. K.S.A. 60-226(c)(1) continues to permit a motion for a protective order on a matter related to a deposition, even of a party, to be made not only in the district where the action is pending but also in the district where the deposition is to be taken. Likewise, a motion during a deposition to terminate or limit the deposition under K.S.A. 60-230(d) may be made in either location.

3. Requirement to confer Since 1997, a party filing a motion to compel discovery under K.S.A. 60-237(a) or a motion for sanctions under K.S.A. 60-237(d) for failure to serve answers or responses to interrogatories or requests for inspection has been required to certify that the party conferred with the person or party failing to make discovery before seeking court intervention. Amended K.S.A. 60-216(c)(1)72 now requires a similar certification by a party that moves for a protective order, and HB 2656 extends to that section and to K.S.A. 60-237(d) the requirement in K.S.A. 60-237(a) that the moving party “describe the steps taken” to resolve disputed issues.

4. Interstate depositions and discovery HB 2656 adopts the Uniform Interstate Deposition and Discovery Act (2007), a new procedure for taking a deposition and obtaining other discovery in Kansas in aid of litigation pending in another state or a foreign country.73 Parties in Kansas litigation will benefit from the act’s simplified and uniform procedures when they need to conduct depositions or other discovery in other states that adopt it. The act already has been adopted by statute or court rule in 13 states74 and the District of Columbia, and it has been introduced in two other states75 in the 2010 session. The act replaces K.S.A. 60228(d), which applied only to depositions and required both the filing of an ex parte action and a court order that a subpoena be issued to the deponent. Filing a separate action and judicial intervention are not necessary in the federal system, in which a subpoena may be issued by an attorney admitted to practice in the court in which the action is pending, acting as an officer of the court in the district where the deposition is to be taken, or may be obtained from the clerk of that court.76 The new act authorizes a subpoena not only to compel attendance at a deposition in Kansas for an action pending elsewhere but also to compel production of documents or tangible things in the possession, custody, or control of a person.

It also authorizes a subpoena to permit inspection of premises controlled by the person. The act requires the clerk of the www.ksbar.org

district court to issue a subpoena without the necessity for a party to file an action or hire local counsel and without judicial intervention. The helpful official comment to subsection (c) describes the procedure that is contemplated. If an action is pending in Florida, a party’s lawyer of record “will issue a subpoena in [Florida] (the same way lawyers in [Florida] routinely issue subpoenas in pending actions).” The lawyer will then obtain from the clerk’s office in the Kansas county in which the witness to be deposed lives a copy of its subpoena form. “The lawyer will then prepare a [Kansas] subpoena so that it has the same terms as the [Florida] subpoena.” The lawyer then must submit the “completed and executed [Florida] subpoena and the completed but not yet executed [Kansas] subpoena to the clerk’s office in [Kansas].” The lawyer may elect to hire someone to present the documents personally.

However, a clerk might accept a short transmittal letter accompanying the Florida subpoena, “advising the clerk that the Kansas subpoena is being sought pursuant to” the act.

Under subsection (c), the request for issuance of a subpoena under the act “does not constitute an appearance in the courts of this state.” According to the official comment, “The clerk of the court, upon being given the [Florida] subpoena, will then issue the identical [Kansas] subpoena (‘issue’ includes signing, stamping, and assigning a case or docket number).”

The subpoena, like other Kansas subpoenas, must be served in compliance with K.S.A. 60-303. Subsection (e) makes the general Kansas statutes on subpoenas in K.S.A. 60-245 and 60-245a applicable to these subpoenas, but it is unlikely that other states have statutes governing issuance of a nonparty business record subpoenas that would cause K.S.A. 60-245a to be applicable.

For the convenience of the deponent, subsection (c)(3)(A) requires that the subpoena “contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.” Because Kansas has a significant interest in protecting its residents, as nonparties, from unreasonable or unduly burdensome discovery, subsection (f ) provides that Kansas procedures govern a motion requesting a protective order for a deponent and a motion seeking to enforce or quash a subpoena or to modify its terms, such as those specifying date, time, or location. Local counsel still will be needed for these motions.

5. Declaration in lieu of affidavit HB 2656 adopts one federal amendment that is not scheduled to go into effect until December 2010. Under 28 U.S.C. 1746, whenever a federal statute or rule requires use of an affidavit, an unsworn declaration in proper form which is subject to the penalty of perjury may be used instead. Proposed Rule 56 will substitute the phrase “affidavit or declaration” wherever “affidavit” appears in the rule, as a reminder that the inconvenience of requiring execution before a notary public can be avoided. Kansas has a similar unsworn declaration statute, K.S.A. 53-601, but it is not widely known. The Civil Code Committee included references to a declaration not only in K.S.A. 60-25677 but also throughout the code. The term “declaration” was added as an alternative to “affidavit” in 11 other sections.78 The Journal of the Kansas Bar Association | June 2010 27

Legal Article: Civil Code and Time Computation ...

6. Nonparty business records subpoena The new reference to declarations led to a substantive change in K.S.A. 60-245a,79 regarding a nonparty business records subpoena. The statute formerly required that the subpoena be accompanied by a form of affidavit for the custodian to use in certifying the records produced. A nonparty should not bear the burden of locating a notary public when a declaration is permissible instead. While the custodian of the records still may use an affidavit, use of a declaration will become the norm because the amended statute requires the subpoena to be accompanied by a form declaration instead of an affidavit.

K.S.A. 60-245a is changed in other ways. To reduce the burden on clerks of the district court of storing records and making them available, subsection (b)(2) now requires the custodian of nonparty business records to deliver the subpoenaed records to the party or attorney requesting them. The custodian must file the declaration or affidavit with the court and deliver a copy to the requesting party. The term “nonparty business records subpoena” now is used consistently to distinguish the subpoena under this section from the subpoena duces tecum described in K.S.A. 60-245. Amendments to K.S.A. 60-245a(c) and 60-245(a)(1)(C) resolve an inconsistency in former law, making it clear that use of a nonparty business records subpoena is optional and that any party may require the attendance of a business records custodian or the production of original records by using a subpoena duces tecum pursuant to K.S.A. 60-245.

There are additional minor amendments to K.S.A. 60-24580 that mirror federal amendments. One conforms the procedure under subsection (d)(2) for asserting privilege for information sought by a subpoena to the procedure specified in K.S.A. 60-226(b)(7) for asserting privilege or a work product objection for information sought through discovery. Another clarifies that if, independently of a deposition, a subpoena commands production of documents or inspection of premises before trial, notice must be served on each party before the subpoena is served. The ambiguous requirement of “prior notice” in former subsection (b) arguably could be satisfied merely by giving notice before the return date. The amendment adopts the prevailing interpretation in federal case law that earlier notice is required.

7. Other changes Former K.S.A. 60-226(f )(1)81 made the signing of a disclosure of expert testimony or a discovery request, response, or objection a certification that it was warranted by existing law or a “good faith” argument to extend, modify, or reverse existing law. HB 2656 changes the standard from “good faith” to “nonfrivolous” so that it conforms to the standard in K.S.A. 60-211 for pleadings and papers generally.

Amended K.S.A. 60-226(b)(4)(C) extends to parties the right nonparties always have had to obtain, merely on request, their own previous statements about the action or its subject matter, without having to make the showing otherwise required to obtain discovery of another party’s work product.

A party need not make a request for production pursuant to K.S.A. 60-234 to obtain the party’s own statement.

F. Summary judgment Amended K.S.A. 60-25682 incorporates not only the 2007 federal style amendments but also the 2009 substantive 28 June 2010 | The Journal of the Kansas Bar Association

amendments to the timing provisions in subsections (a)-(c).

Subsection (a) now permits a party claiming relief to move for summary judgment at any time. The former subsection required the party to wait until the earlier of 20 days after commencement of the action or service of a motion for summary judgment by the opposing party. Of course, if the motion is sought so early that it is difficult for the opposing party to respond, the court may extend the time to respond in reliance on either subsection (c)(1) or K.S.A. 60-206(b).

New timing rules specified in subsection (c)(1) are default rules only and may be altered by local rule or a court order, entered at a case management conference pursuant to K.S.A. 60-216(b)(1)(H) or otherwise. The Federal Advisory Committee Note explained that “[s]cheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default rules. A scheduling order may be adjusted to adopt the parties’ agreement on timing, or may require that discovery and motions may occur in stages. ...” The default rules require the parties to make any motions for summary judgment not later than 30 days after the close of all discovery, require a response to be filed within 21 days after a motion is served or a responsive pleading is due, whichever is later, and permit the movant to file a reply within 14 days after the response is served.

G. Trial Federal Rule 51 on instructions was revised substantially in 2003 “to capture many of the interpretations that have emerged in practice.”83 For example, one amendment made it explicit that the trial court may give preliminary instructions at any time, not just after opening statements. Another made clear that even if the court requires proposed instructions to be submitted prior to the close of the evidence, not only may parties later submit proposed instructions on an issue that could not reasonably have been anticipated at the time of the court’s deadline, but also the court has discretion to permit an untimely submission. HB 2656 conforms K.S.A. 60-251 to its federal counterpart, with two exceptions.84 First, it preserves traditional Kansas practice requiring the court to instruct the jury before closing arguments of counsel. Second, it retains the “clearly erroneous” standard that Kansas has used to determine whether an appellate court will consider a claim of error regarding an instruction despite the failure to preserve the claim by objecting to the giving of, or the failure to give, the instruction. Federal Rule 51 uses a “plain error” standard on the issue of appellate review of an unpreserved claim of error and Rule 52 applies the “clearly erroneous” standard only to review of a trial judge’s factual findings. Federal case law distinguishes the elements required to establish “plain error” from those considered in determining if findings are “clearly erroneous.”85 Kansas has extensive case law defining when an instruction is “clearly erroneous,” and the Civil Code Committee determined that conforming to the federal terminology risked changing Kansas law.

When the trial court refuses to give a requested instruction, the requesting party ordinarily must object to its omission from the instructions that are given, to preserve the issue for appeal. New K.S.A. 60-251(d)(1)(B) modifies this rule so that requesting the instruction is sufficient to preserve the issue for appeal, without further objection, if “the court rejected the www.ksbar.org

Legal Article: Civil Code and Time Computation ... request in a definitive ruling on the record.” This relaxation of the requirement for an objection is meant to avoid “a trap for the unwary who fails to add an objection after the court has made it clear that the request has been considered and rejected on the merits.”86 However, if there is any ambiguity, counsel should seek clarification on the record that the court has made a “definitive ruling” or assure preservation of the issue for appeal by objecting.

Former K.S.A. 60-248(h) required that the full jury panel be empaneled and sworn before any alternate jurors could be selected. HB 2656 deletes that requirement by conforming this subsection to the 2009 amendment to K.S.A. 22-3412(c) for criminal cases.87 A trial judge now has the option to select alternate jurors at the same time as the regular jurors using a single voir dire process.

HB 2656 also incorporates portions of new Federal Rule 48(c) into K.S.A. 60-248(g). The revised subsection grants a trial judge the option to order a new trial when a poll of jurors reveals fewer than the required number of jurors agree to the verdict. Formerly, the only option was to send the jury back to deliberate further.

H. Post-judgment motions HB 2656 adds Federal Rules 50(c), (d), and (e) to K.S.A. 60-250.88 It is not clear why these 1963 amendments to the Federal Rules were not included in the Kansas Code. However, the current Civil Code Committee concluded the amendments are compatible with current practice and provide useful guidance. Subsection (c) specifies procedures to be followed when a party combines a renewed motion for judgment as a matter of law with a motion in the alternative for a new trial.

It requires a court that grants judgment as a matter of law to rule conditionally on whether a new trial should be granted if the judgment as a matter of law is later reversed or vacated.

This procedure eliminates the possibility of successive appeals by permitting an appellate court to review the rulings on both motions in a single appeal, at the behest of appellant if the new trial motion is conditionally denied and of appellee if the motion is conditionally granted. Subsection (d) makes explicit the right of a party against which a renewed motion for judgment as a matter of law is granted to move thereafter in the trial court for a new trial. Under subsection (e), if the renewed motion for judgment as a matter of law is denied, the prevailing party, which has no reason to seek a new trial in the trial court, has the right as appellee in an appellate court to assert grounds for a new trial should the appellate court hold it was error to deny judgment as a matter of law. Subsection (e) makes explicit the appellate court’s authority in this circumstance to grant or deny a new trial by ruling on the issues raised by the appellee or to remand for determination by the trial court when the issue raised involves the trial court’s discretion.

In federal court, an appellee need not file a cross-appeal to make arguments under subsection(c)(2) that a trial court’s ENDNOTES

1. L. 1997, Ch. 173.

2. http://www.kslegislature.org/legsrv-bills/enrolledBills.do 3. http://www.kansasjudicialcouncil.org/2010legislation.shtml

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conditional grant of a new trial was improper.89 Similarly arguments by an appellee for a new trial under subsection (e) may be made in the appellee’s brief or even by a motion for rehearing following the appellate court’s decision, without filing a notice of cross-appeal.90 However, Kansas authority in other contexts requires an appellee to file notice of cross-appeal to obtain relief from a trial court’s ruling.91 Thus, until Kansas courts resolve the issue, the safer practice for an appellee planning to make arguments under subsection (c)(2) or seek a new trial under subsection (e) based on a ruling by the trial court is to cross-appeal.

As noted earlier, a timely post-judgment motion under K.S.A. 60-250 for judgment as a matter of law, K.S.A. 60-252 to amend findings or make additional findings, K.S.A. 60259(b) for a new trial, or K.S.A. 60-259(f ) to alter or amend judgment postpones the time for filing notice of appeal. However, under former law, different acts were required under each section to make the motion timely. Within the specified time, K.S.A. 60-250 and 60-259(f ) required the motion to be both “served and filed,” but K.S.A. 60-252 ambiguously required the motion to be “made” and K.S.A. 60-259(b) merely required the motion for new trial to be “served.” The latter provision seemed to permit filing after the deadline if service occurred by the deadline. HB 2656 now makes the requirement uniform and conforms to the Federal Rules by requiring each motion to be “filed” within the specified time.92

V. Conclusion Space limitations preclude discussion of every section of the civil code which HB 2656 changes or clarifies. It is imperative that counsel read each section carefully. Hopefully it will be easier reading than before. n About the Author James M. Concannon is Distinguished Professor of Law at Washburn University School of Law, where he has taught Civil Procedure, Evidence, and Appellate Practice since 1973. He served as Dean from 1988 until 2001. He is a member of the Kansas Judicial Council’s Civil Code Advisory and Pattern Instructions committees, and serves on the Kansas Commission on Judicial Performance. He is a Kansas delegate to the National Conference of Commissioners on Uniform State Laws and serves on its Committee on Style.

4. Joseph Kimble, Guiding Principles for Restyling the Civil Rules, in Committee on Rules of Practice and Procedure, Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure x (Feb. 2005) (available at http://www.uscourt.gov/rules/Prelim_draft_proposed_pt.1.pdf ).

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5. One “shall” remains. K.S.A. 60-102 continues to provide that the act “shall be liberally construed and administered to secure the just, speedy, and inexpensive determination” of each action. The Civil Code Committee proposed that it be changed also but the Revisor’s office overlooked the change in preparing the bill for introduction. Because this section only prescribes a rule of construction, an amendment was not thought to be essential. Curiously, in an unrelated bill, 2010 House Sub. for SB 234, every “shall” in K.S.A. 60-734, 60-737, 60-740, 61-3507, and 613510 was changed indiscriminately to “must,” even though the restyling principles used to draft HB 2656 often would have required a change to a present tense verb instead. For example, House Sub. for SB 234 changes former language that “this section shall apply” to certain garnishments to the odd phrasing that “this section must apply” to those garnishments, when it should read that “this section applies” to them.

6. Fed. R. Civ. P. 1, Advisory Committee Note to 2007 amendments.

7. State v. Porting, 29 Kan. App. 2d 869, 892 P.2d 915 (1995) (citing Paul v. City of Manhattan, 212 Kan. 381, 385, 511. P.2d 244 (1973)).

8. State v. Copes, __ Kan. __, 224 P.3d 571 (2010).

9. Fed. R. Civ. P. 1, Advisory Committee Note to 2007 amendments.

10. Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes J. Legal Writing 25, 78-85 (2008-2009).

11. 2010 HB 2656, § 97.

12. 2010 HB 2656, § 129.

13. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986) (“Neither do we suggest that trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case in which there is reason to believe that the better course would be to proceed to a full trial.” Kennedy v. Silas Mason Co., 334 U.S. 249 . . . (1948).”).

14. Report of the Civil Rules Advisory Committee to the Standing Committee on Rules of Practice and Procedure 6 (May 8, 2009, as revised June 15, 2009).

15. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish an essential element of that party’s case, and on which that party will bear the burden of proof at trial.”).

16. Report, supra n.14.

17. Id. at 7.

18. 2010 HB 2656, § 73.

19. Nancy J. Strouse, Kansas Judicial Council Report: Proposed Amendments to Time Computation Methods in K.S.A. 60-206, 78 J. Kan. Bar Ass’n 20 (Nov./Dec. 2009).

20. 2010 HB 2656, §§ 121, 123, and 133.

21. 2010 HB 2656, § 136.

22. Kansas Judicial Council, Civil Code Advisory Committee Comment to 2010 HB 2656, § 73.

23. See Fed. R. App. P. 4(a)(1)(A) and Fed. R. Civ. P. 50, 52, and 59.

24. Since 1976, K.S.A. 60-258 has differed significantly from Federal Rule 58 regarding entry of judgment. As amended, it provides, “When judgment is entered by judgment form the clerk must serve a copy of the judgment form on all attorneys of record within three days, excluding Saturdays, Sundays, and legal holidays.”

25. Daniels v. Chaffee, 230 Kan. 32, 630 P.2d 1090 (1981); Danes v. St. David’s Episcopal Church, 242 Kan. 822, Syl. ¶ 1, 752 P.2d 653 (1988).

26. Danes v. St. David’s Episcopal Church, supra n.245, Syl. ¶ 2.

27. Fed. R. App. P. 4(a)(6). The motion must be filed in the district court not later than 180 days after the entry of the judgment or order sought to be appealed but must be filed within 14 days after the party receives notice of the entry of the judgment or order. The motion is available only if the party failed to receive the notice within 21 days after entry. The court may grant the motion only if it finds that no party would be prejudiced.

28. 2010 HB 2656, §§ 199 and 207.

29. Nolan v. Auto Transporters, 226 Kan. 176, Syl. ¶ 1, 597 P.2d 614 (1979).

30. 2010 HB 2656, § 181.

31. E.g., K.S.A. 38-2229(c), -2343; and K.S.A. 60-1105(f ), -1106(e), -1505(d).

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32. K.S.A. 22-3902(6), -4904(a)(6), -4905(a)(2)(B), -4907(c); K.S.A. 60-255(a); K.S.A. 26-505, -508(a); and K.S.A. 59-807(a).

33. K.S.A. 26-503; and K.S.A. 61-3807(a), -2912, -3002(b), -3006(a) (3).

34. K.S.A. 22-3428(5); K.S.A. 26-510; K.S.A. 60-2801, -1607, -2802, -4107(h) and (i), -4109(b)(5), -4113(f ); and K.S.A. 61-2707(b), 61-3101(b), -3103(a).

35. 2010 HB 2656, § 178.

36. 2010 HB 2656, § 131.

37. 2010 HB 2656, § 55.

38. K.S.A. 22-2516(d), regarding wiretaps, and K.S.A. 23-701(d) and (e).

39. 2010 HB 2656, § 152.

40. Mullane v. Central Hanover Bank, 339 U.S. 306, 315 (1950); Jones v. Flowers, 547 U.S. 220, 229 (2006).

41. See, e.g., Merriman v. Crompton Corp., 282 Kan. 433, 146 P.3d 162 (2006).

42. See State ex rel. Carrington v. Shutts, 217 Kan. 175, 535 P.2d 982 (1975). The legislature promptly enacted what is now K.S.A. 60-308(b) (1)(J) to provide statutory authority for the assertion of jurisdiction on the same facts in a future case.

43. 2010 HB 2656, § 153.

44. Steve A. Leben and Mark D. Hinderks, Long Arm Jurisdiction in Kansas, 62 J. Kan. Bar Ass’n 26 (May 1993).

45. 2010 HB 2656, § 147.

46. 2010 HB 2656, § 78.

47. As to service, this comment is based upon a provision Kansas has not adopted, Fed. R. Civ. P. 5(b)(2)(E), which permits service by electronic means only if the person served consented in writing. Like many federal courts, however, the U.S. District Court of Kansas uses local rules to require action that is treated as written consent. Rule 5.4.1 requires electronic filing in almost all civil cases, and Rule 5.4.2(e) provides that registration as a Filing User constitutes consent to electronic service of all documents.

48. 2010 HB 2656, § 72.

49. K.S.A. 60-203(d), -205(b)(2)(F) and (d)(3), -271.

50. 2010 HB 2656, § 82.

51. Fed. R. Civ. P 15, Advisory Committee Note to 2009 amendment.

52. 2010 HB 2656, § 74.

53. 2010 HB 2656, § 72.

54. 2010 HB 2656, § 90.

55. 2010 HB 2656, § 86.

56. 2009 HB 2613.

57. 289 Kan. 528, 216 P.3d 168 (2009) 58. 2010 HB 2656, § 84.

59. 2010 HB 2656, § 128.

60. See Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993), holding that a motion for summary judgment made prior to filing an answer was an act to “otherwise defend” the claim.

61. See Automatic Feeder Co. v. Tobey, 221 Kan. 17, 558 P.2d 101 (1976).

62. Compare Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949) (answer precludes Rule 55 default; plaintiff must prove liability even if defendant does not appear at trial) with Hoxworth v. Blinder, Robinson & Co. Inc., 980 F.2d 912, 918-919 (3d Cir. 1992).

63. 10 James Wm. Moore et al., Moore’s Federal Practice § 55.11[2][b][iii], at 55-23 (3d ed. 2010) (plead or otherwise defend “is phrased disjunctively . . . showing an intent that either one or the other should be sufficient to avoid a Rule 55 default.”); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2682, at 18 (3d ed. 1998) (defendant who answers “has not conceded liability. Unlike a default, if the trial proceeds in the absence of the defendant, the court should require plaintiff to present evidence supporting liability, and a judgment should be entered in plaintiff’s favor only if the evidence supports it.”).

64. James Wm. Moore, supra n.63; Jacobs v. American Oil Operations, 1991 Kan. App. LEXIS 736 (unpublished) (Elliott, J., dissenting, arguing that trial courts must have inherent power and discretion to enter default judgment when party fails to appear at trial.).

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65. See Wenger v. Wenger, 239 Kan. 56, 716 P.2d 550 (1986).

66. 3 Robert J. Fowks, William F. Harvey & Leonard O. Thomas, Vernon’s Kan. Stat. Ann. Code of Civ. Proc. § 60-255, Authors’ Comments at 341 (1964).

67. See, e.g., George v. Capital South Mtg. Investments Inc., 265 Kan. 431, 961 P.2d 32 (1998).

68. Celco Inc. of America v. Davis Van Lines Inc., 226 Kan. 366, 598 P.2d 188 (1979) (when defendants answered but did not appear at trial, trial was held in their absence; court holds requirement in K.S.A. 60-252 of findings of fact and conclusions of law inapplicable because judgment was by default under K.S.A. 60-255); Jacobs v. American Oil Operations, 1991 Kan. App. LEXIS 736 (unpublished) (majority treats judgment entered when answering defendant did not appear at trial as default judgment under K.S.A. 60-255 but found abuse of discretion in trial court’s failure to set it aside).

69. 2010 HB 2656, § 154.

70. 2010 HB 2656, § 95.

71. 2010 HB 2656, § 106.

72. 2010 HB 2656, § 83.

73. 2010 HB 2656, § 1. The Uniform Act applies only to litigation pending in another state. The Civil Code Committee extended its application to litigation pending in a foreign country, since former K.S.A. 60-228(d) could be used in aid of foreign litigation.

74. California, Colorado, Idaho, Indiana, Kentucky, Maryland, Montana, New Mexico, New York, South Carolina, Tennessee, Utah, and Virginia.

75. Georgia and Pennsylvania.

76. Fed. R. Civ. P 45(a)(3).

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77. 2010 HB 2656, § 129.

78. K.S.A. 60-206(c), -210(d), -211(a), -240(c), -243(d), -259(d) and (g), -304(h), -307(c) and (e), -308(a), -309(a) and (c), and -312(a) and (c).

79. 2010 HB 2656, § 115.

80. 2010 HB 2656, § 114.

81. 2010 HB 2656, § 95.

82. 2010 HB 2656, § 129.

83. Fed. R. Civ. P. 51, Advisory Committee Note to 2003 amendments.

84. 2010 HB 2656, § 122.

85. Harry T. Edwards & Linda A. Elliott, Federal Courts Standards of Review 4-6, 19-22 and 91-94 (2007).

86. Fed. R. Civ. P. 51, Advisory Committee Note to 2003 amendments.

87. 2010 HB 2656, § 118.

88. 2010 HB 2656, § 121.

89. Fed. R. Civ. P. 50, Advisory Committee Note to 1963 amendments (“The appellee may assert this error in his brief, without taking a cross-appeal.”).

90. Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 329 (1967) (appellee “may argue this question in his appellee’s brief to the court of appeals, or he may in suitable situations seek rehearing from the court of appeals after his judgment has been reversed.”).

91. K.S.A. 60-2103(h). See, e.g., Autry v. Walls IGA Foodliner Inc., 209 Kan. 424, 497 P.2d 303 (1972).

92. 2010 HB 2656, §§ 121, 123, and 133.

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Appellate Decisions All opinion digests are available on the KBA members-only website 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 member services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions.

Supreme Court Attorney Discipline

IN RE PAUL P. HASTY JR. PUBLISHED CENSURE NO. 103,300 – APRIL 15, 2010 FACTS: This is an original proceeding in discipline filed by the Disciplinary Administrator’s Office against Paul P. Hasty Jr., Overland Park, an attorney admitted to the practice of law in Kansas in 1976 and in Missouri in 1985. Hasty represented Allstate Insurance Co., he lost his client’s file, and after the case failed to settle, he developed discovery problems and failed to communicate with Allstate regarding the problems. Hasty self-reported his actions to the Missouri disciplinary authorities and his attorney forwarded the same report to the disciplinary administrator in Kansas. The Missouri Supreme Court reprimanded Hasty.

DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be censured and that the censure be published in the Kansas Reports.

HEARING PANEL: The hearing panel determined that the respondent violated KRPC 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence) and KRPC 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication).

HELD: Court concluded that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Court adopted the panel’s findings and conclusions, which establish the misconduct of respondent by clear and convincing evidence. With respect to the discipline to be imposed, Court stated that under the ABA guidelines, either suspension or reprimand would be appropriate sanctions. A minority of the court supports suspension because of the serious nature of the offense, the fact respondent has had two prior complaints (albeit handled through diversion), and respondent’s lengthy delay in fully informing his client of the misplaced discovery and the possible sanctions.

Nevertheless, a majority of the Court determines that the recommendations of the disciplinary administrator and the panel are appropriate.

IN RE BENJAMIN M. KEILER ONE-YEAR SUSPENSION NO. 103,493 – APRIL 15, 2010 FACTS: This is an original proceeding in discipline filed by the Disciplinary Administrator’s Office against Benjamin M. Keiler, Kansas City, Kan., an attorney admitted to the practice of law in Kansas in 1991. Keiler represented Cathy W. Irby regarding two car accidents she was involved in. Both of the other drivers admitted fault. Keiler failed to properly communicate with Irby or with op32 June 2010 | The Journal of the Kansas Bar Association

posing counsel. The statute of limitations expired on Irby’s lawsuits.

Keiler called Irby and acknowledged that he failed to file suit within the statute of limitations and that the only way she would get money would be to sue him for malpractice.

DISCIPLINARY ADMINISTRATOR: The disciplinary administrator argued that the hearing panel should recommend that the respondent be suspended if the hearing panel concludes that the respondent engaged in the misconduct knowingly. The disciplinary administrator argued, alternatively, that the hearing panel should recommend that the respondent be censured and the censure should be published, if the hearing panel concludes that the respondent negligently engaged in the misconduct.

HEARING PANEL: The hearing panel determined that respondent violated KRPC 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.7 (2009 Kan. Ct. R. Annot. 472) (conflict of interest); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). The hearing panel recommended that Keiler receive published censure.

HELD: The evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. During oral argument before the court, Keiler persisted in minimizing the seriousness of his conduct and attempted to shift responsibility for his actions to Irby. Absent from Keiler’s demeanor at oral argument was an appreciation of the serious nature of the misconduct and the impact his actions had on his client. We also note that Keiler’s failure to file an answer to the disciplinary administrator’s formal complaint demonstrates his indifference to our disciplinary procedures and is reflective of Keiler’s overall apathy and insensitivity to the harm caused to Irby and the legal profession.

Civil

PROHIBITED UNIVERSITY PRACTICES, EMPLOYMENT, ADMINISTRATIVE REVIEW, AND SERVICE FORT HAYS STATE UNIVERSITY V. AMERICAN ASS’N OF UNIVERSITY PROFESSORS ET AL. SHAWNEE DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – AFFIRMED NO. 99,021 – APRIL 22, 2010 FACTS: After Gaskill was terminated by Fort Hays State University (FHSU), rather than exhaust his administrative remedies through the grievance process, Gaskill filed an action in district court for breach of contract and wrongful termination. The district court www.ksbar.org

Appellate Decisions dismissed that action under the Kansas Judicial Review Act. Next, the American Association of University Professors (AAUP) filed a prohibited practice complaint with the Kansas Public Employee Relations Board (PERB or Board) against FHSU. An administrative law judge ultimately issued an award to Gaskill in the amount of $142,013.62 in damages and ordering FHSU to cease and desist from its violations. An administrative review of the PERB award was affirmed, except that PERB characterized the award of damages to Gaskill as moot and held that the breach of contract action was not before it. On judicial review, the district court remanded the matter to PERB for further proceedings as to a remedy, concluding that PERB’s decision reversing the monetary award was devoid of fact supported by the record and unsupported policy. On remand, PERB dramatically reduced the award to $12,772.80. Both parties petitioned for judicial review of the decision. The district court affirmed the reduced award. Court of Appeals held PERB’s award of monetary damages to a public employee for a prohibited practice violation is inconsistent with the legislative mandate to limit intervention to the minimum extent possible to secure the objectives expressed in Public Employer-Employee Relations Act (PEERA).

Court of Appeals held the award of monetary damages under these circumstances demonstrated that PERB acted in a manner beyond its statutory authority.

ISSUES: (1) Prohibited university practices, (2) employment, (3) administrative review, and (4) service HELD: Court agreed with the court of appeals finding that PERB is devoid of any authority to impose a monetary award for prohibited practices violations under PEERA. Such power cannot be implied without more specific statutory language than presently exists.

If PERB or AAUP believes a more effective public policy requires the Board to have available to it the power to impose a monetary remedy, they must take their arguments to the legislature to change the statute. Court held PERB was not authorized to award monetary damages to Gaskill.

STATUTES: K.S.A. 20-3018(b); K.S.A. 60-205(e), -271; K.S.A. 72-5413, -5430, -5430a; K.S.A. 75-4321, -4322, -4323, -4324, -4333, -4334; K.S.A. 76-711; and K.S.A. 77-531, -601, -621 TORTS – DAMAGES VALADEZ V. EMMIS COMMUNICATIONS SEDGWICK DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART NO. 99,139 – APRIL 29, 2010 FACTS: Valadez sued for damages related to radio identifying Valadez as the BTK killer. Jury found defendants’ conduct was defamatory, as well as extreme and outrageous. Valadez was awarded $800,000 for mental suffering, shame, and humiliation, and $300,000 for injury to reputation. Valadez died within a month of jury’s verdict, with administrator of the estate continuing as plaintiff. District court found defamation action abated upon Valadez’s death, and reversed the $300,000 award. District court also found the extreme and outrageous conduct action survived, but reduced the $800,000 award to $250,000 pursuant to K.S.A. 60-19a02 limitation on awards for noneconomic losses. Appeal and cross-appeal filed.

ISSUES: (1) Tort of outrage and (2) abatement of award for damages to reputation HELD: Intentional infliction of emotional distress is discussed.

Severe emotional distress beyond that experienced as a result of defendants’ constitutionally protected activities is required. Here, no evidence that Valadez’s distress was extreme, and there was no separation of the anxiety suffered by defendants’ alleged unprivileged conduct. Under facts of case, plaintiff failed to prove an injury severe enough to sustain his claim. Award for tort of outrage is reversed.

Other issues raised by defendants are moot. www.ksbar.org

Because journal entry had not been entered prior to Valadez’s death, defamation award was not final when he died. Estate may not recover damages for injury to his reputation. District court’s judgment on this issue is affirmed.

STATUTE: K.S.A. 60-258, -1801, -1802 WRONGFUL DEATH, MEDICAL MALPRACTICE, JURY INSTRUCTIONS, AND INTERVENING CAUSE PUCKETT V. MT. CARMEL REGIONAL MED. CENTER ET AL. CRAWFORD DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – AFFIRMED NO. 97,971 – APRIL 22, 2010 FACTS: Puckett sought treatment for severe back pain at Mt. Carmel and was seen in the emergency room by Dr. Seglie. Puckett was given pain medication and released. The same occurred at clinic operated by Mt. Carmel where Puckett was treated by Nurse Deruy.

Puckett’s symptoms worsened over the next two days. He was treated for a urinary tract bacterial infection and he improved, but ultimately his condition worsened, and he developed respiratory distress and sepsis from his bacterial infection under the treatment by Dr. Paoni.

Dr. Paoni transferred Puckett to St. John’s in Joplin, Mo. Puckett was critically ill and was treated by Dr. Munshi. For medical reasons and patient comfort, Dr. Munshi ordered the temporary removal of a BiPAP mask and the use of an oxygen mask. While the BiPAP mask was off, Puckett sat up in bed and ate some breakfast. After approximately three hours, Puckett was placed back on the BiPAP mask. Soon thereafter Puckett went into cardiac arrest. Puckett had stopped breathing after having vomited and aspirated. His cardiac and pulmonary functions were restored, but he never fully regained consciousness. Puckett died weeks later. The death certificate listed Puckett’s cause of death as “anoxic encephalopathy,” which basically means “there was a disease process of the brain that ... resulted from lack of oxygen to the brain.” Significant conditions listed as contributing to his death were sepsis, diabetes, and respiratory failure.

Puckett’s widow brought a wrongful death and survivor action. The trial was a battle of expert opinions. A jury returned a defense verdict. The court of appeals found reversible error in the trial court’s decision to give an intervening cause instruction. In the survivor action, the intervening cause instruction caused the jury to not reach the issue of comparative fault. In the wrongful death claim, Court of Appeals stated it was impossible to determine whether the jury followed the intervening cause instruction when rendering its verdict or if the jury decided the case without reference to it.

ISSUES: (1) Wrongful death, (2) medical malpractice, (3) jury instructions, and (4) intervening cause HELD: Court examined the record as a whole and gave special attention to each of the record citations given by Nurse Deruy and Dr. Paoni. Court found no evidence supporting a conclusion that the aspiration event was not foreseeable. Hence, whether the aspiration resulted from negligence or not, it was a foreseeable consequence of the treatment alleged to have been necessitated by Nurse Deruy’s and Dr. Paoni’s alleged negligence. Thus, considering the evidence in a light most favorable to Nurse Deruy and Dr. Paoni, Court determined that the court of appeals correctly concluded this case is not one of extraordinary circumstances where an intervening cause instruction should have been given. Court also found that as it considered the evidence, the arguments, and the instructions as a whole, it is clearly possible and even probable that the jury was confused by its consideration of the intervening cause instruction. The court of appeals correctly determined that the erroneous instruction on intervening cause could have misled the jury under the facts and circumstances of this case. The jury verdict was reversed and the case was remanded for a new trial.

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Appellate Decisions STATUTES: K.S.A. 20-3018(b); K.S.A. 22-3414(3); and K.S.A. 60-250, -251(b), -401(b)

Criminal STATE V. EDWARDS SEDGWICK DISTRICT COURT – AFFIRMED NO. 101,198 – APRIL 2, 2010 FACTS: Edwards entered guilty plea in 1992 to criminal charges, including two counts of aggravated kidnapping. Thereafter, he filed numerous unsuccessful appeals from adverse decisions in postconviction and original actions, seeking to reduce aggravated kidnapping convictions to simple kidnapping because the complaint did not allege bodily harm to victims. In this case, Edwards again sought to withdraw plea and to reduce sentences associated with aggravated kidnapping convictions. District court summarily denied that motion and motion for reconsideration, stating only that it involved “same motion as before.” Edwards appealed and abandoned issues presented to district court. Instead, he argued for remand because district court failed to make specific findings, and claimed state violated plea agreement by recommending sentence different from the negotiated recommendation.

ISSUES: (1) Sufficiency of district court’s findings and conclusions and (2) violation of plea agreement HELD: Edwards’ objection to district court’s failure to state controlling facts and legal principles is untimely because motion to reconsider was filed more than 10 days after judgment. Also, no additional findings by district court were necessary for appellate review because arguments to district court were not advanced on appeal.

Claim that state violated plea agreement fails because issue raised for first time on appeal, this argument was not raised within one year limitation period, and claim had no merit under facts of case.

No abuse of discretion by trial court in refusing to allow Edwards to withdraw his plea.

STATUTES: K.S.A. 2009 Supp. 22-3210(d)(2), -3210(e)(1)(A); K.S.A. 22-3601(b)(1), K.S.A. 60-252, -259(f ); and K.S.A. 21-3421 (Ensley) STATE V. HILL MONTGOMERY DISTRICT COURT – AFFIRMED NO. 94,589 – APRIL 15, 2010 FACTS: Police found the bodies of April Milholland and her boyfriend, Sam Yanofsky, dead inside a car that had collided with a tree in Independence, Kan. Milholland’s body, wrapped in a black plastic trash bag, was in the backseat of the car. Yanofsky’s body, covered with a bedspread, was in the car’s trunk. The investigation of the murders quickly led to Hill, an Independence drug dealer who supplied Yanofsky with drugs, which Yanofsky then resold. Hill gave multiple versions of what happened the night of the killing. A jury convicted Hill of capital murder, possession of marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a drug tax stamp.

ISSUES: (1) Lesser-included offenses, (2) peremptory strike, (3) photographic evidence, (4) admission of evidence, and (5) competency to stand trial HELD: (1) Court found no error in the district court’s decision to not instruct the jury on the lesser-included instruction of heat-of-passion voluntary manslaughter. Court found no evidence that Hill intentionally shot Yanofsky because he was provoked into doing so. (2) The prosecution used peremptory strikes to remove the venire panel’s only three African-American members; Hill is African-American. Court found the district judge heard the challenged juror’s answers during voir dire and observed her demeanor.

He also assessed the credibility of the prosecutor’s explanations.

34 June 2010 | The Journal of the Kansas Bar Association

Both reasons for the strike given by the prosecutor appear to be supported by the record and are race-neutral. There was no abuse of discretion. (3) Court found no abuse of discretion in the district court’s admission of an autopsy photograph of Yanofsky’s brain, depicting the brain with a flexible rod through it. Court stated it was the only photograph that illustrated the pathologist’s testimony explaining how a bullet could pass through Yanofsky’s brain without killing him instantly. (4) Court found sufficient authenticity for admission of a note that Hill passed to Jones’ brother, who then passed the note to Jones while all three of them were in jail. (5) The district court sent Hill to Larned State Security Hospital for 51 days of observation and evaluation. The Larned team issued a report that concluded Hill did not suffer from any measurable psychopathology and was competent to stand trial. After a competency hearing, the district court found Hill competent to stand trial. The Court found no error in the handling of Hill’s competence to stand trial.

STATUTES: K.S.A. 21-3403, -3439(a)(4), (6); K.S.A. 223301(1), -3414(3); and K.S.A. 60-464 STATE V. JONES WYANDOTTE DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 98,571 – APRIL 15, 2010 FACTS: Jury convicted Jones of aggravated kidnapping and rape of his ex-fiancé. court of appeals affirmed, finding the district court violated Jones’ right to self-representation at the preliminary hearing by requiring him to be represented by counsel, but error was harmless. Even if protection from abuse evidence were to be assumed more prejudicial than probative, error would have been harmless under the facts. And even if evidence was admissible under 60-455, no clear error in the district court not giving jury a limiting instruction; district court’s instruction regarding aggravated kidnapping was error, but not reversible error because there was no prejudice to Jones’ substantial rights; sympathy instruction is no longer approved for general use, but may be used if the facts present very unusual circumstances. District court’s sympathy instruction was error in this case, but error did not prejudice Jones’ substantial rights; District court's failure to state “no, period” prior to directing jury to re-read approved PIK instruction was a proper statement of law and responsive to the jury’s question; and, last, the Apprendi claim failed.

ISSUE: Self-representation HELD: Court found the critical issue was whether the district court’s denial of Jones’ motion to represent himself at his preliminary hearing constituted reversible error. Court held that is does.

Court stated that a violation of a Sixth Amendment right to counsel is subject to structural error analysis. Court stated that it declined to speculate what might have happened had the district court followed constitutionally mandated procedures in ruling on Jones’ motion to represent himself at the preliminary hearing. Court reversed the conviction and remanded for a new proceeding, commencing with the preliminary hearing. Although moot, Court commented that a court must give a limiting instruction informing the jury of the specific purpose for admission of 60-455 evidence, the jury instructions were broader than the charges in the complaint, and it is not recommended for the court to give a sympathy instruction.

STATUTES: K.S.A. 22-2902(3) and K.S.A. 60-455

www.ksbar.org

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office

Address Changes With annual attorney registration in progress, be aware that address changes made in the registration system are not currently integrated into the appellate case processing system. File a change of address in each case pending before the appellate courts to assure that notices and orders reach you timely.

Appellate Filing Fee At the present time, the appellate filing fee stands at $135. It is subject to change, however, as surcharges are authorized.

Motions Counsel are often tempted to include multiple requests for action in one motion. For example, a motion to transfer and a motion to consolidate. Resist the temptation. Each request for action should be included in a separate motion.

Remember that, in the motions practice, the appellate court does not have access to the record on appeal. The record remains in the district court until all briefing is completed and the case is ready to be set on a docket. References to the record on appeal in a motion or response to a motion are not helpful. Attach the referenced material if it is essential to resolution of the issue at hand.

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

Reminders from the Kansas CLE Commission ...

The Kansas Continuing Legal Education Commission is the office that tracks and reports your CLE credits to the Kansas Supreme Court for annual compliance. Noncompliance could result in additional fees and even the suspension of your license to practice law. The annual CLE requirement in Kansas is 12.0 hours of CLE credit, including 2.0 hours of professional responsibility, by June 30, 2010.

The Kansas CLE Commission 2009-10 Registration and Annual CLE Remittance Form was mailed to your address of record in late April. This is the only notice you will receive. If you have misplaced your copy, you may contact our office for another form. The registration form must be returned with payment by July 1, 2010, for your CLE record to reflect compliance. Credit cards, debit cards, and EFT cannot be accepted. Please note that incomplete forms will be returned and may result in a delay of processing your annual registration. Fees received in the CLE Commission Office on or after August 1 of the year in which due shall be accompanied by a $50 late payment fee.

If you have enrolled for online access to your record, you can access your online transcript of hours. This information is available free-of-charge, 24 hours a day.

IMPORTANT – DON’T MISS – DATES: June 30 — End of CLE year All CLE hours must be attended by this deadline to avoid further penalties.

July 1 Annual CLE Registration fee due.

July 31 Last day to file 2009-10 hours.

Note: All paperwork must be received in our office before 5 p.m. of July 31 to avoid late filing penalties.

Fax and e-mail submissions will NOT be accepted. www.ksbar.org

The Journal of the Kansas Bar Association | June 2010 35

Appellate Decisions

Court of Appeals

Civil

AD VALOREM TAXATION, JURISDICTION, AND ANNEXATION IN RE TAX APPEAL OF DILLON REAL ESTATE CO. COURT OF TAX APPEALS – AFFIRMED NO. 102,159 – APRIL 8, 2010 FACTS: In December 2003, the city of Topeka (City) announced its annexation of approximately 10 acres within Mission Township, which lands contained Dillon’s Store #37. In January 2004, Dillon joined with Mission Township and the Sherwood Improvement District to challenge the annexation. The ensuing litigation proceeded through district court, where the City ultimately prevailed on summary judgment. On appeal of this judgment, our Supreme Court ruled in July 2007 that the annexation was in contravention of applicable statutes and “a nullity.” Dillon Real Estate, 284 Kan. at 681. Throughout the pendency of the annexation litigation, the City levied ad valorem taxes against Dillon for its property included in the annexation. For tax years 2004, 2005, and 2006, Dillon paid the taxes levied by the City and did not pay them under protest.

In December 2007, Dillon and Mission Township filed tax grievances, see K.S.A. 2009 Supp. 79-1701 and K.S.A. 2009 Supp. 791702, with the Court of Tax Appeals (COTA) seeking a refund of taxes wrongfully collected by the City on the property that had been subject to the void annexation. In January 2009, COTA found that because the annexation was declared a nullity, the tax situs of Dillon had always been Mission Township and the assessment of taxes by the City was a clerical error under K.S.A. 2009 Supp. 79-1701.

COTA ordered Shawnee County to correct the clerical error in the assignment of the taxing district to reflect that the subject properties were located in Mission Township and ordered refunds to Dillon for taxes paid in 2004, 2005, and 2006, less an offset for taxes owed to Mission Township — the correct situs of the property in these tax years.

ISSUES: (1) Ad valorem taxation, (2) jurisdiction, and (3) annexation HELD: Court held the COTA did not err in asserting its jurisdiction over Dillon’s tax grievance as a clerical error under K.S.A. 79-1701(f ). Court held that under the facts of this case, where a taxpayer has paid taxes for three tax years to a taxing district pursuant to an annexation that is later deemed a nullity, those taxes may be recovered pursuant to the tax grievance procedure specifically provided in K.S.A. 79-1701(f ) and 79-1702.

STATUTES: K.S.A. 77-617, -621; and K.S.A. 79-1701, -1701a, -1702, -2005 AUTOMOBILE STOP, DUI, AND STANDARD OF REVIEW POTEET V. KANSAS DEPARTMENT OF REVENUE POTTAWATOMIE DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 101,986 – MOTION TO PUBLISH; OPINION ORIGINALLY FILED ON JANUARY 15, 2010 FACTS: Poteet was involved in a one-vehicle accident, and at the hospital she consented to a blood sample. She had a blood-alcohol concentration of 0.17. On the DC-27, the officer checked off the box titled “odor of alcoholic beverages.” The Kansas Department of Revenue suspended Poteet’s driver’s license for a year. Poteet appealed her suspension, arguing that the officer did not have reasonable grounds to believe she was under the influence of alcohol. The district court agreed with Poteet and held that the officer’s certification referenced “odor of alcohol” as the only factual basis for 36 June 2010 | The Journal of the Kansas Bar Association

believing Poteet was under the influence of alcohol and that “odor of alcohol” by itself does not constitute reasonable grounds.

ISSUES: (1) Automobile stop, (2) DUI, and (3) standard of review HELD: Court stated that under a substantial competent evidence standard of review, the court would affirm the district court’s decision because the officer testified that he only relied upon the odor of alcohol in requesting a breath test and that is insufficient under Kansas caselaw. However, the court stated that it is not required to ignore those undisputed facts in resolving the question of law. Court held that it independently considered whether the officer had the required “reasonable grounds” to believe Poteet was under the influence of alcohol when she had her accident, and concluded that he did. In addition to the odor of alcohol, Poteet drove through a field and a barbed-wire fence; she so lost control of the car that it rolled onto its side. These facts certainly suggest an impaired driver.

STATUTE: K.S.A. 8-1001(b), (k), -1002 CONTRACTS RAZORBACK CONTRACTORS OF KANSAS V. BD. OF COUNTY COMM’RS OF JOHNSON COUNTY JOHNSON DISTRICT COURT – AFFIRMED NO. 101,131 – APRIL 2, 2010 FACTS: Razorback Contractors of Kansas Inc. (Razorback) and the Johnson County Board of County Commissioners (the Board) entered a contract for construction of a sanitary sewer line in southern Johnson County. The agreed contract price was $2,393,320.76.

The Board provided prospective bidders on the project with two sets of soil boring logs taken in early 2004. Razorback claimed that during construction it encountered site conditions materially different from what previously had been disclosed, i.e., unanticipated water conditions. It sued the Board for additional compensation of $1,342,932, claiming breach of implied warranty based on the Board’s failure to disclose the amount of ground and surface water present in the construction area. The district court entered summary judgment in favor of the Board because Razorback failed to provide notice of its claim in accordance with the parties’ contract.

ISSUE: Contracts HELD: Court held that Razorback clearly failed to comply with the notice requirements of the parties’ contract. It gave its formal written notice about nine months after the wet conditions were first encountered. Before its written notice, it had never expressed, orally or otherwise, its intent to seek additional compensation for these wet conditions. The Board was entitled to notice in accordance with the provisions of the contract that the parties freely and voluntarily entered into. Accordingly, court held the district court correctly ruled that there remained no genuine issue of material fact regarding Razorback’s failure to perform in accordance with the contract terms. Court also rejected Razorback’s claim that the Board waived the contract’s notice provision.

STATUTE: No statutes cited.

DIVORCE, CUSTODY, MAINTENANCE, AND PROPERTY DIVISION IN RE MARRIAGE OF VANDENBERG MONTGOMERY DISTRICT COURT – AFFIRMED NO. 101,745 – APRIL 30, 2010 FACTS: Jeffrey and Lisa Vandenberg were married in 2000. They both had children from previous marriages, but they also had a child of their own, T.V. Lisa’s teenage son, R.C., lived with them and had learning and behavior difficulties. Lisa received veterans disability in the amount of $1,240 per month. In September 2007, Lisa told www.ksbar.org

Appellate Decisions Jeffrey she no longer wanted to be married and that she was a lesbian. Upon agreement, Lisa moved to Colorado along with T.V., and R.C. stayed in Kansas with Jeffrey. In October 2007, Jeffrey filed for divorce in Kansas. Without advising Lisa, Jeffrey drove to Colorado, picked up T.V. from school and returned to Kansas. Because R.C.’s behavior worsened, Jeffrey contacted R.C.’s father who traveled to Kansas and took R.C. back to Ohio with him. By this time, Lisa had moved into the Colorado Springs home of another woman with whom Lisa shared expenses. After a trial, the trial court granted the parties joint legal custody of T.V., with Lisa having residential custody. Jeffrey paid child support and also paid maintenance in the amount of $700 for 44 months, along with $2,000 for Lisa’s attorney fees.

ISSUES: (1) Divorce, (2) custody, (3) maintenance, and (4) property division HELD: Court stated that while the trial court did not explicitly refer to several of the statutory factors for custody determination, Jeffrey failed to challenge this inadequacy in the court below.

Court found that absence of an objection, and a review of the record demonstrated the trial court considered the factors. Court held that T.V. wanted interaction with both parents and was well adjusted in both households. Jeffrey challenged the custody situation based on Lisa’s lifestyle. Court stated that both parents argued the custody issue and that, considering the strength and shortcomings of both households, the court was unable to conclude that no reasonable judge would have granted Lisa residential custody in a very difficult choice. Court also found the trial court’s order of maintenance to be reasonable and not arbitrary or fanciful. The trial court considered Lisa’s cohabitation relationship, Lisa’s disability and disparity in incomes, and awarded substantially less maintenance than requested

by Lisa. Court found no abuse of discretion in the trial court’s division of property, either, and that Jeffrey only incidentally raised the issue of attorney fees.

STATUTE: K.S.A. 60-252, -1610(a)(3)(B); (b)(2), (3) MEASURE OF DAMAGES AND REPLACEMENT COST OR DIMINUTION OF VALUE EVENSON V. LILLEY GREENWOOD DISTRICT COURT – AFFIRMED NO. 102,100 – APRIL 8, 2010 FACTS: The Evensons own a 160-acre tract of land in rural Greenwood County, which they use primarily for recreation. The Evensons have maintained a number of pine trees, fruit trees, and grape and berry plants that existed on the property at the time they purchased the land in 2002. The property also had a utility building, a three-sided pole barn, and a three-sided shed or lean-to at the time of purchase. All of the structures were made of wood with tin roofs. The Evensons leased a portion of the property for the production of crops. Lilley leased pastureland on property adjacent to the Evensons’ tract for grazing cattle. On April 12, 2006, Lilley started a controlled burn of his leased pastureland, but the fire grew out of control and passed over to the Evensons’ property, essentially burning the entire tract. The Evensons filed suit against Lilley for negligence, claiming damages in excess of $75,000. The district court ruled the damage to the property was permanent in nature and the proper measure of damages was the diminution in the value of the property, consistent with PIK Civ. 4th 171.20. The court adopted the appraisal values submitted by Lilley and the debris clean-up cost submitted by the Evensons, awarding the Evensons a total of $7,687 plus applicable interest.

ISSUES: (1) Measure of damages and (2) replacement cost or diminution of value HELD: Court stated the Evenson’s request for restoration costs to replace full-grown trees for $307,999 is patently unreasonable for the damage inflicted. Court held Kansas precedent clearly rewww.ksbar.org

jects replacement costs alone as an accurate valuation of the property loss. Court stated that in light of the lack of evidence demonstrating the value of the trees destroyed by the fire, the proper measure of damages is the difference between the market value of the property before and after the fire. Court held the district court did not err in valuing the damages to the property by resorting to evidence concerning the diminution in the value of the property, even though the court erred in limiting the measure of damages to the diminution in value. Court also found the district court’s calculation of damages for the destruction of the outbuildings was appropriate as well.

STATUTES: No statutes cited.

MECHANIC’S LIENS AND SUBCONTRACTORS TARLTON V. MILLER’S OF CLAFLIN INC. BARTON DISTRICT COURT – AFFIRMED NO. 101,968 – APRIL 2, 2010 FACTS: The Tarltons hired Gisick as general contractor to construct their new home. Before completion of the home, Gisick died and his estate was unable to satisfy the outstanding claims of his subcontractors. Miller and S&H Lumber filed mechanics liens for unpaid work and materials. Neither Miller nor S&H sent the Tarltons the warning statements required of subcontractors pursuant to K.S.A. 60-1103a(b). In an interpleader action filed by the Tarltons, the district court ruled that Miller and S&H were subcontractors of Gisick and they failed to perfect their liens as subcontractors by giving the statutorily required notice to the owners. The district court struck down liens filed by Miller and S&H. ISSUES: (1) Mechanic’s liens and (2) subcontractors HELD: Court stated that different lien perfection requirements exist for general contractors and for subcontractors. One difference is the requirement in K.S.A. 60-1103a(b) that subcontractors mail to the property owner the warning statement identified in K.S.A. 60-1103a(c) or obtain the owner’s signed acknowledgement of that warning and file an affidavit stating that they did so. Court held the evidence was totally lacking to support the existence of a contractual relationship between either Miller or S&H and the Tarltons and that both Miller and S&H were subcontractors of Gisick. Consequently, the liens were invalid.

STATUTE: K.S.A. 60-1101, -1103a(b), (c) MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, AND COMA INJURIES MARTIN V. NAIK WYANDOTTE DISTRICT COURT REVERSED AND REMANDED NO. 101,146 – APRIL 15, 2010 FACTS: Martin sued Sandip Naik M.D. and Specialty Hospital of Mid-America for the wrongful death of her husband, Curley Martin (Curley). She also brought a survival action as the personal representative of Curley’s estate for the injuries and damages Curley sustained prior to his death. Curley had been in a diabetic coma from April 8, 2004, until he died on Oct. 25, 2004. Martin sued on Oct. 25, 2006. The district court ruled these claims were timebarred and granted summary judgment to the defendants.

ISSUES: (1) Medical malpractice, (2) statute of limitations, and (3) coma injuries HELD: Court held that under the facts, when the injured party was comatose from the time of the medical negligence until his death, the fact of injury was not reasonably apparent to him. Upon his death, the fact of injury became reasonably apparent to his estate, thereby causing the survival action for medical negligence to accrue and the running of the period of limitation to commence pursuant to K.S.A. 60-513. Thus, commencing the survival action within two years following death and well within the four-year period of repose rendered the action timely under K.S.A. 60-513(c).

The Journal of the Kansas Bar Association | June 2010 37

Appellate Decisions STATUTES: K.S.A. 59-504; and K.S.A. 60-513, -515, -1801, -1901 through -1904 PATERNITY AND EMANCIPATION IN RE PATERNITY OF JANZEN MARION DISTRICT COURT – AFFIRMED NO. 102,133 – APRIL 15, 2010 FACTS: A few days after her 18th birthday, Jessica J. Janzen filed a petition alleging Kenneth A. Janzen was her father. Using the Kansas Parentage Act, Jessica sought judicial determination of her parentage and a court order for support and reimbursement of expenses. Kenneth Janzen denied he was Jessica’s father and, in turn, sought damages from her mother, Diana Kay Willliams, for misrepresenting that he was Jessica’s father. Genetic testing revealed a 99 percent probability that Kenneth was Jessica’s father. Court ordered Kenneth to pay child support for the prior eight years in the amount of $62,920.

ISSUES: (1) Paternity and (2) emancipation HELD: Court held that under the Kansas Parentage Act, a child may bring an action to determine a father and child relationship arising from a statutory presumption of paternity found at K.S.A. 38-1114. Court found there was no evidence to rebut the presumption that Janzen is Jessica’s father. Court held that Jessica was not a party to her parents’ divorce so res judicata does not bar her from bringing this action. But more importantly, the Parentage Act itself says she is not constrained by the agreement of her mother and father. Court held retroactive support orders are permissible in the context of this case. Trial court properly determined Janzen was Jessica’s father.

STATUTES: K.S.A. 38-1110, -1114, -1115, -1121; and K.S.A. 60-1610(a)(1) RIGHT OF FIRST REFUSAL AND REAL ESTATE SALE IN A PACKAGE DEAL WASTE CONNECTIONS V. RITCHIE CORP. SEDGWICK DISTRICT COURT REVERSED AND REMANDED WITH DIRECTIONS NO. 101,812 – APRIL 22, 2010 FACTS: Ritchie is the owner of real estate in Sedgwick County that contains a landfill and also a waste transfer station. The first critical event was the sale of the transfer station from Ritchie to BFI in an escrow agreement. Waste Connections (WCK) is the successor in interest to BFI. Ritchie and BFI entered into an escrow agreement for BFI to operate a nonhazardous waste transfer station for 35 years and a right of first refusal for sale of the interest in the escrow agreement. Ritchie entered into an asset purchase agreement with Cornejo for purchase of the landfill and the rights in the escrow agreement. Ritchie wanted a package deal for both the transfer station and landfill. Ritchie and Cornejo agreed on $4.95 million. Ritchie notified WCK about the asset purchase and claimed the offer was $2 million for purchase of the escrow agreement. WCK disputed the amount of the purchase in the package deal and claimed the price was actually $1.45 million. WCK filed a declaratory judgment action seeking determination of the price under the first refusal. The district court granted summary judgment to Ritche, contending there was never any intent on Ritchie’s part to sell the escrow agreement for anything less than $2 million.

ISSUES: (1) Right of first refusal and (2) real estate sale in a package deal HELD: Court stated that the package deal is a risky situation in the terms of the right of first refusal. There is a risk in package deals that the purchase price may be unfairly allocated or padded to defeat the right of first refusal. In a package deal situation, more protection needs to be given to the right of first refusal to prevent collusion or bad faith. In a package deal, the purchase price should come under 38 June 2010 | The Journal of the Kansas Bar Association

greater scrutiny and any doubt in the amount should be resolved to protect the right of first refusal. In the context of a package deal involving a right of first refusal, the price for the total package generally should not fluctuate based upon whether the right of first refusal is executed. Court held it is clear that Cornejo wanted to purchase the landfill for $3.5 million. It is also very clear that Ritchie wanted to sell its rights to the transfer station for $2 million. In the package deal, Cornejo was unwilling to purchase both the transfer station and the landfill for $5.5 million. Through negotiations, the parties agreed on a purchase price of $4.95 million for the package deal. Ritchie would argue that Cornejo accepted a $550,000 lower price for the transfer station. In the context of a package deal, court found that WCK, as possessor of the right of first refusal, is denied the benefit of the deal if it is not entitled to the reduced price for the transfer station. Court granted judgment to WCK for $550,000 and reversed for attorney fee issues.

STATUTES: No statutes cited.

WORKERS' COMPENSATION ROLES V. BOEING ET AL. WORKERS’ COMPENSATION BOARD – REVERSED NO. 102,307 – APRIL 15, 2010 FACTS: Roles began working for Boeing in 1975. While working for Boeing, Roles had a long history of respiratory problems and was diagnosed with bronchiectasis. In 1995, Roles settled a claim for workers’ compensation benefits and waived her right to any future medical compensation. Roles developed additional respiratory problems. The administrative law judge (ALJ) denied Roles’ claim for benefits after finding that her vocal cord dysfunction was a new injury that arose after her 1995 settlement with Boeing but that the injury was not compensable because there was no toxological link between Roles’ injury and her work environment. The Board of Workers' Compensation (Board) reversed the ALJ’s preliminary hearing order. The Board agreed that Roles suffered a new and separate injury of vocal cord dysfunction after her February 1995 settlement agreement. However, contrary to the ALJ, the Board found that the vocal cord dysfunction was caused by Roles’ exposure to chemical irritants in the workplace. As a consequence, the Board ordered Boeing to “pay as authorized medical treatment all reasonable and necessary medical expenses, in accordance with the medical fee schedule, incurred since July 18, 2001, for the treatment of Roles’ work-related respiratory injuries.” Pursuant to the Board’s preliminary order, Boeing paid Roles’ medical expenses in the amount of $106,339.65. After a lengthy preliminary hearing, the ALJ found that Roles had suffered a new chemical exposure and that she was permanently and totally disabled. The Board affirmed, but remanded to the ALJ for findings on whether Roles’ medical bills were related to the chemical exposure. No decision was issued by the ALJ. Roles filed for post-award medical expenses. The ALJ found the application for post-award medical expenses was not timely filed because all of the bills related back more than six months from the time of filing. The Board found Boeing failed to contest the $106,339.65 in medical bills. The Board found the ALJ erred in denying Roles’ application for post-award medical expenses.

ISSUE: Workers’ compensation HELD: Court stated that at every stage of the administrative proceedings, the ALJ and the Board failed to require Roles to produce evidence of the compensability of medical expenses paid by Boeing under the preliminary order. Boeing never received its required full hearing on the issue. Because it did not, the court held that it could not inquire as to whether Roles sustained her burden of proof on the compensability issue. Consequently, court could not consider whether substantial evidence supported the Board’s findings. Therefore, court stated that it must either remand the case to the Board to make adequate findings on the compensability of these expenses or www.ksbar.org

Appellate Decisions determine based upon the record whether Roles fulfilled her burden in proving her entitlement to the medical compensation paid under the preliminary hearing order. Court held that the Board’s order granting Roles’ post-award medical benefits was reversed. Court stated that an ALJ is without authority to award a claimant benefits for medical treatment incurred more than six months prior to an application for post-award medical compensation.

STATUTES: K.S.A. 44-501, -508(g), -510h, -510j, -510k, -523, -534a; and K.S.A. 77-621(d), (c)(7)

Criminal STATE V. BARAJAS JOHNSON DISTRICT COURT SENTENCES VACATED AND REMANDED NO. 100,785 – APRIL 22, 2010 FACTS: Barajas was convicted of aggravated robbery and attempted aggravated robbery. Barajas challenged his criminal history.

He claims the district court erred in classifying his California conviction for driving under the influence (DUI) causing bodily injury, Cal. Vehicle Code § 23153(b) (West 2000), as a person felony based on a determination that it was comparable to the Kansas offense of aggravated battery, K.S.A. 21-3414.

ISSUES: (1) Criminal history and (2) out-of-state convictions HELD: Court held that while both California’s offense of DUI causing bodily injury, Cal. Vehicle Code § 23153(b) (West 2000), and Kansas’ aggravated battery statute, K.S.A. 21-3414, contain provisions regarding bodily injury, the offenses do not cover similar types of conduct and are not comparable offenses. California’s offense of DUI causing bodily injury, unlike Kansas’ aggravated battery statute, includes a specific causation requirement, i.e., that the defendant drive while legally intoxicated and concurrently neglect to perform a duty required by law, which failure results in injury to another person. Further, the Kansas aggravated battery statute, unlike California’s offense of DUI causing bodily injury, requires reckless or intentional conduct.

STATUTES: K.S.A. 8-1567; and K.S.A. 21-2301, -3201, -3301, -3405, -3405b, -3412, -3414, -3427, -4701, -4710, -4711(e), -4721(c)(2) STATE V. BOWLIN WYANDOTTE DISTRICT COURT REVERSED AND REMANDED NO. 99,213 – APRIL 28, 2010 FACTS: Bowlin was convicted in bench trial of involuntary manslaughter for death of child in house fire sparked by firecrackers.

Bowlin filed motion for new trial, alleging ineffective assistance of counsel. After hearing testimony, trial court denied the motion.

Court of appeals remanded for additional hearing on Bowlin’s ineffective assistance of counsel claims. After hearing expanded claims, trial court found no deficient performance by counsel and denied Bowlin’s motion. Bowlin appealed, claiming in part trial counsel was ineffective in failing to suppress Bowlin’s incriminating interrogation statements, and claiming insufficient evidence supported the conviction.

ISSUES: (1) Ineffective assistance of counsel – motion to suppress and (2) sufficiency of the evidence HELD: Under facts of case there were two good reasons for suppressing Bowlin’s interrogation statements. First, officers clarified Bowlin’s request for an attorney during his interrogation but chose not to honor his right to counsel. Second, overreaching police conduct rendered Bowlin’s statements involuntary. Attorney’s failure to file motion to suppress, and to stipulate to admission of Bowlin’s interrogation tape into evidence, was deficient and prejudicial. Bewww.ksbar.org

cause suppression would have dealt serious to fatal blow to state’s case, attorney’s decision to not seek suppression cannot be dismissed as trial strategy, and constituted ineffective assistance of counsel.

Sufficiency of the evidence examined to see if retrial is permissible under Double Jeopardy Clause. Even without Bowlin’s confession, the evidence viewed in light most favorable to the state was sufficient for rational factfinder to find Bowlin guilty beyond a reasonable doubt. Conviction reversed and case remanded for retrial.

CONCURRENCE (Leben, J.): Concurs but for majority’s language that trial counsel’s claim of trial strategy might have been a better argument if case had been tried to a jury.

STATUTE: K.S.A. 21-3401, -3402, -3404, -3404(a), -3719 STATE V. CLUCK DONIPHAN DISTRICT COURT AFFIRMED IN PART AND VACATED IN PART NO. 101,347 – APRIL 8, 2010 FACTS: Cluck was convicted by a jury of three counts of involuntary manslaughter while under the influence of alcohol and one count of improper passing when the Corvette he was driving attempted to pass a truck and struck the truck, causing it to fishtail out of control, killing three of the four occupants of the truck. Cluck was not seriously injured. Cluck was treated at the hospital for a laceration on the back of his head, and a blood sample indicated a blood alcohol concentration of 0.22 approximately one hour after the accident. The day after the accident, Cluck voluntarily went to the police station to give a statement. Cluck was charged with three counts of involuntary manslaughter while driving under the influence, aggravated battery, DUI, and improper passing. The jury convicted on all counts except the aggravated battery. The court granted a directed verdict on the DUI conviction. The trial court sentenced Cluck to controlling term of 155 months’ incarceration and ordered the Department of Corrections to post photographs of the victims in Cluck’s cell for the duration of his prison term.

ISSUES: (1) Custodial interrogation, (2) presumptive sentence, and (3) illegal condition of incarceration HELD: Court held Cluck failed to raise a contemporaneous objection to the admission of his confession and thus it was not preserved for appeal. However, even on the merits, court held his statement at the police station was one of an investigative interrogation, not a custodial interrogation, and the statement was completely voluntary. Court stated that the simple fact that Cluck’s interview occurred in the interview room at the county jail did not in itself create a custodial interrogation. Court held that Cluck was sentenced to a presumptive sentence and the denial of his downward departure motion based on a myriad of mitigating circumstances was unappealable. However, court held the district court overstepped its bounds in ordering Cluck to post the victim’s photographs in his prison cell. Court found this part of Cluck’s sentence was not a condition expressly authorized by statute. The illegal photo-posting condition of Cluck’s sentence was vacated, but the remaining portions were valid and in force.

STATUTE: K.S.A. 21-4603d(a), -4643(d), -4718, -4721(c)(1); K.S.A. 22-3504(l); and K.S.A. 60-404 STATE V. ELNICKI SHAWNEE DISTRICT COURT AFFIRMED IN PART AND DISMISSED IN PART NO. 96,987 – APRIL 8, 2010 FACTS: Elnicki was accused of forcing a 19-year-old victim to engage in fellatio and sexual intercourse after she accepted Elnicki’s offer for a ride. Elnicki claimed a consensual encounter and the victim became angry after he refused to pay her for her services. Elnicki was convicted of rape and aggravated criminal sodomy in 2002, but his conviction was overturned. Elnicki was convicted a second time The Journal of the Kansas Bar Association | June 2010 39

Appellate Decisions of rape, but acquitted of aggravated criminal sodomy. While his appeal was pending, this court granted Elnicki’s motion to remand for a hearing on ineffective assistance of counsel. The district court ordered a third trial, finding Elnicki’s counsel had been ineffective in failing to investigate and call new witnesses discovered after the first trial. The state cross-appealed.

ISSUES: (1) Speedy trial, (2) admission of evidence, (3) jury misconduct, (4) prosecutorial misconduct and (5) ineffective assistance of counsel HELD: Court denied Elnicki’s claim of a speedy trial violation.

Court stated that the speedy trial clock began to run on March 15, 2005, the date the Supreme Court’s mandate was filed with the district court. The state had 90 days thereafter to retry Elnicki, or until June 13, 2005. On March 31, 2005, the trial was continued to June 20, 2005. That continuance was properly charged to Elnicki. The trial was rescheduled to June 20, 2005, because of the press of other cases on the court’s calendar. This new trial date was within 30 days of the original 90-day deadline. Thereafter, the trial was continued due to conflicts of interest that were properly charged to Elnicki. The state was required to commence the trial by Sept. 21, 2005, 90 days following the existing trial deadline, when the current trial setting was continued. Elnicki’s rescheduled trial commenced on Sept. 12, 2005, within this 90-day time limit. The court agreed with Elnicki’s argument that the court lacked jurisdiction to consider the state’s appeal. On appeal the state did not explain how there was statutory jurisdiction for the state’s appeal. Court held that because the district court ordered a third trial based on ineffective assistance of counsel, the claims of error in Elnicki’s second trial are now moot. Court stated the only issue, which was likely to reoccur, was the propriety of admission of the redacted videotape of Elnicki’s statements to the authorities, and that issue had not been adequately preserved for review.

STATUTES: K.S.A. 22-3402, -3602(b); and K.S.A. 60-404, 1507, -2102 STATE V. LECLAIR SALINE DISTRICT COURT – AFFIRMED NO. 101,201 – APRIL 15, 2010 FACTS: LeClair was a registered sex offender. On June 1, 2007, LeClair left Kansas without notifying the Saline County Sheriff’s Dept. He traveled to Las Vegas, then to Provo, Utah. In Provo on June 5, 2007, LeClair sent a letter to Saline County stating he would

Kansas Women Attorneys (Continued from Page 14)

contact local law enforcement when he decided where he would reside. On July 9, 2007, LeClair registered as a sexual offender in Las Vegas. In Oct. 2007, the state charged LeClair with five counts of failing to register as an offender based on his failure to notify anyone of his move after he left Salina. LeClair was convicted of one count of failure to register by finding that he failed to notify Saline County within 10 days of his change of address.

ISSUES: Sexual offender registration HELD: An offender required by the Kansas Offender Registration Act to register at the local sheriff’s office and the Kansas Bureau of Investigation must notify those offices in writing when they intend to permanently leave a residence, whether they have established a new residence or not. From the time LeClair left Salina on June 1, 2007, until July 9, 2007, he failed to report his residence or whereabouts to the sheriff’s department. LeClair acknowledged this failure but testified that he intentionally chose to defer his registration until he was more permanently settled in a location. LeClair further testified that in the interim, he felt that the letter he sent to the sheriff’s department would suffice. There is sufficient evidence of his intent in this record; LeClair did not accidentally pack up and move. He did so intentionally.

STATUTES: K.S.A. 21-3201(a)(b); and K.S.A. 22-4901, -4903, -4904(b) STATE V. WHETSTONE SHAWNEE DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS

NO. 101,157 – APRIL 22, 2010 FACTS: Whetstone was convicted of two counts of criminal threat after he made one threat that was communicated to two individuals that he would “burn down the house and kill [them] all.”

ISSUES: (1) Multiplicity and (2) other crimes evidence HELD: Court held Whetstone’s convictions were multiplicitous.

Court stated that under the facts of this appeal, the unit of prosecution for criminal threat allows only one conviction for the same underlying act regardless of the number of intended victims. Court also held Whetstone failed to file a motion in limine or object to the evidence now challenged on appeal and court refused to review the issue.

STATUTES: K.S.A. 21-3110, -3419(a)(1); and K.S.A. 60-455

2010 K ANSAS A NNUAL SURVEY

As its name indicates, KWAA is a statewide organization; however, despite women being in KWAA’s name, the organization and the annual conference are open to men. Anyone interested in attending this year’s conference will be able to access the full schedule and registration form online at www.kswaa.com once they are finalized. In addition, a short video of keynote speaker Nancy Giles talking about procrastination can be viewed at the website. If you decide to attend the conference, keep in mind the conference motto, “What happens in Lindsborg, stays in Lindsborg.” n 40 June 2010 | The Journal of the Kansas Bar Association

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