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Kansas Supreme Court docket for September 14-18, 2020 (part 1 of 3)

09 Sep 2020 9:23 AM | Amanda Kohlman (Administrator)

The cases summarized below are on the Kansas Supreme Court's September 14-18, 2020, docket. All cases will be heard by videoconference and livestreamed on the Supreme Court YouTube channel.

This docket differs from in-person oral arguments in the Supreme Court courtroom. Instead of hearing cases back-to-back, the court will hear cases at 9 a.m., 11 a.m., and 1:30 p.m., with a recess after each.

9 a.m. • Monday, September 14

Appeal No. 120,824: State of Kansas v. Gianni Massimo Daino

Johnson County: (Petition for Review) The district court suppressed evidence taken from Daino's apartment. It found Daino's actions, in response to the officer's request to enter his apartment, would be found by a reasonable person to indicate his consent. However, the district court felt compelled by Kansas law to hold Daino's acts were implied consent, which is not valid. The Court of Appeals reversed the district court and found Daino's acts, whether labeled as express consent or implied consent, gave valid consent for officers to enter his apartment. Issue on review is whether the Court of Appeals erred in finding Daino unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate the smell of marijuana.

11 a.m. • Monday, September 14

Case No. 122,638: In the Matter of James W. Fuller, Respondent

Original Proceeding Related to Attorney Discipline: (Indefinite suspension) The Supreme Court admitted Fuller to the practice of law in Kansas in April 2017. Fuller began taking Adderall while in law school, using the university's health services, but began illegally purchasing Adderall after he graduated. His ethical issues arose when he represented the person who was selling him Adderall and also started missing court dates and obligations. Fuller also began using methamphetamine and marijuana. Fuller began trading legal services for drugs. He eventually reported his actions, and his law firm also filed a complaint. In October 2019, the Supreme Court suspended Fuller's license for failure to comply with the annual attorney registration requirements. Fuller engaged in the unauthorized practice of law after his suspension. The hearing panel unanimously recommends indefinite suspension of Fuller's license to practice law. The disciplinary administrator recommends indefinite suspension. Fuller seeks a six-month suspension.

1:30 p.m. • Monday, September 14

Appeal No. 118,035: Jayhawk Racing Properties LLC and Heartland Park Raceway LLC v. City of Topeka

Shawnee County: (Petition for Review) Jayhawk Racing sued the City for breach of contract when the City failed to pay the company, as promised in a contract, almost $2.4 million for its reversionary interest in the land where Heartland Park Raceway is located. When the City refused to issue bonds to pay for the sale, Jayhawk Racing sued, and the City moved to dismiss the action. With the agreement of the parties, the district court treated the motion as one for summary judgment and granted the motion, dismissing Jayhawk Racing's lawsuit. The Court of Appeals reversed the court's dismissal, finding the court in granting summary judgment ignored the fundamental purpose of the contract: to purchase an interest in real estate. The Court found this is a proprietary contract where the City was buying all interests in a racetrack. The Court indicated the district court improperly limited its view of the contract to a contingency promise made by the City to issue Sales Tax and Revenue (STAR) Bonds, and the City's financing method was an illegal attempt by one council to bind future city councils, thus making the entire contract unenforceable. The Court of Appeals held the City was not entitled to judgment as a matter of law. Issues on review are whether: 1) the Court of Appeals erred in holding the City's issuance of STAR bonds is the exercise of a proprietary rather than a governmental function; 2) under Kansas law, the City can be held to a contractual covenant of good faith and fair dealing to exercise the governmental function of issuing STAR bonds; and 3) the Court of Appeals misapplied the Kansas cash-basis and budget laws.

9 a.m. • Tuesday, September 15

Appeal No. 111,447: State of Kansas v. Victor Valdiviezo-Martinez  

Johnson County: (Petition for Review) Valdiviezo-Martinez was convicted of identity theft based on false information he provided to his employer. The Social Security number he used belonged to someone in Washington state. Issues on review are whether: 1) the state provided sufficient evidence that Valdiviezo-Martinez committed any act with intent to defraud for economic benefit; 2) because identity theft is not a continuing offense, the state failed to prove Valdiviezo-Martinez used a Social Security number; and 3) K.S.A. 21-6107 is unconstitutionally vague.

11 a.m. • Tuesday, September 15

Appeal No. 120,503: State of Kansas v. Corbin J. Breitenbach

Sedgwick County: (Criminal Appeal) Breitenbach was charged with entering an apartment and sexually assaulting and attempting to kill a 7-year-old girl. Breitenbach's DNA was found at the scene. A jury convicted him of attempted capital murder, rape, aggravated criminal sodomy, and aggravated burglary. He was sentenced to 592 months' incarceration on the attempted murder charge and consecutive sentences for the remaining convictions. Issues on appeal are whether: 1) the district court abused its discretion in denying Breitenbach's request for independent DNA testing; 2) the district court abused its discretion in denying Breitenbach's request for new appointed counsel; 3) the district court abused its discretion in denying Breitenbach's request for standby counsel; 4) the State violated Breitenbach's due process rights by failing to disclose exculpatory evidence of fingerprint testing; and 5) cumulative error denied Breitenbach a fair trial.

1:30 p.m. • Tuesday, September 15

Appeal No. 117,839: Building Erection Services Co. Inc. v. Walton Construction Co. Inc.

Johnson County: (Petition for Review) This case concerns problems with the construction of a press box at University of Kansas Memorial Stadium almost 20 years ago. On the first appeal, the district court held Building Erection Services (BESCO), one of the subcontractors on the project, was contractually obligated to indemnify Walton Construction, the general contractor and assignee of KU's indemnification rights, for remediation damages, attorney fees, and expenses because BESCO failed to anchor a glass curtain wall system to the press box substructure in accordance with shop drawings. The Court of Appeals reversed the district court's order that BESCO pay all the remediation costs as damages and remanded for the district court's "determination of those damages that arose out of, or resulted from, BESCO's negligent acts or omissions." On remand, the district court conducted a second evidentiary hearing and assessed half the costs of removing the metal wall panels and glass that comprised the press box's curtain wall to BESCO. On a second appeal, the Court of Appeals held substantial competent evidence did not support an assessment of half the remediation costs to BESCO. The court also reversed the attorney fees award, finding it was not supported by substantial competent evidence. On the second remand, the district court reinstated the award assessing half the glass removal costs and increased the award for the metal panel removal costs to 85% with no new evidence from Walton. The district court also reinstated the reversed attorney fees award. BESCO appealed, arguing the district court failed to comply with the second remand and substantial competent evidence did not support the third damages award. In the third appeal, the Court of Appeals reversed the district court, holding that substantial competent evidence does not support the damage award and held Walton did not provide evidence to support the damage award. The Court also reversed the attorney fees award. Issues on review are whether the Court of Appeals: 1) properly reversed the district court ruling under the law of the case doctrine and mandate rule; and 2) was correct in reversing the attorney fees award.

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