Case No. 124,849: Scott Schwab, Kansas Secretary of State, in his official capacity, and Michael Abbott, Wyandotte County Election Commissioner, in his official capacity, Petitioners v. The Honorable Bill Klapper, in his official capacity as a district court judge, et al., Respondents Link to opinion: https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/124849.pdf The Supreme Court denies the Attorney General’s petition for mandamus and quo warranto relief. The Kansas Attorney General petitioned the Supreme Court seeking dismissal of two pending lawsuits filed in Wyandotte County District Court and a third lawsuit in Douglas County District Court. Those lawsuits allege that the congressional reapportionment map passed by the Kansas Legislature is impermissibly gerrymandered in violation of the Kansas Constitution. The Supreme Court held that mandamus and quo warranto were not appropriate remedies because the district judges below had not violated any clear legal duty nor were they unlawfully asserting authority by hearing the cases. The Court clarified that if an action does not lie in mandamus or quo warranto, the petition must be denied. The Court stated that it has no discretion to reach the merits of such a claim simply because the question presented is one of statewide importance, significant public concern, or there is a compelling need for an expeditious and authoritative legal ruling on an important legal question.

Appeal No. 122,271: State of Kansas v. Emond S. Gulley Appeal No. 122,271 archived oral argument A Sedgwick County jury found Gulley guilty of committing first-degree premeditated murder and aggravated robbery in 2018 when he was 15 years old. The court sentenced Gulley to life in prison without the possibility of parole for 618 months for the murder conviction and a consecutive 61 months' imprisonment for the robbery conviction. Gulley challenged his convictions, arguing instructional and prosecutorial error. In a per curium decision, the Supreme Court affirmed the convictions. Gulley also challenged his sentence as cruel and unusual punishment under Miller v. Alabama, 567 U.S. 460, 470, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), in which the United States Supreme Court held that mandatory life-without-parole sentences for juvenile offenders violate the Eighth Amendment. A majority of the Court affirmed the sentence, ruling Miller was inapplicable because Gulley did not face life without parole. Justice Eric Rosen, joined by Justice K.J. Wall, wrote separately on the sentencing issue, opining that the sentencing court erred because it considered 618 months a mandatory minimum, but the relevant statutes permitted a mandatory minimum as low as 554 months. Rosen believed the case should be remanded to address the sentencing error before the Court considered Gulley's constitutional claim. Justice Standridge dissented. She concluded Gulley's mandatory sentence was the functional equivalent of life without parole—regardless of whether the court had sentenced Gulley to only 554 months as the minimum—and, as such, unconstitutional under Miller.

Appeal No. 122,773: State v. Dustin Tyler Smith Summary calendar; no oral argument The Supreme Court affirms the McPherson County District Court decision to deny Smith's motion to withdraw plea filed roughly seven years after he was convicted of first-degree murder on a plea of no contest. The district court ruled that Smith's motion to withdraw plea was late and that he had failed to make an affirmative showing of excusable neglect which would extend the time limitation to file the motion. Finding no error, the Supreme Court affirms the district court.

Appeal No. 122,925: State of Kansas v. Brian C. Shields Summary calendar; no oral argument The Supreme Court affirmed a decision denying Shields' motion to withdraw his plea of no-contest to first-degree felony murder. After entering the plea and being sentenced for the crime, Shields sought to withdraw it alleging his attorney did not adequately represent him. The Neosho County District Court denied the motion after hearing testimony from Shields and the attorney who represented him and finding that Shields was represented by competent counsel and had entered the plea knowingly and understandingly. In a unanimous opinion written by Justice Dan Biles, the Court upheld that decision, concluding Shields failed to demonstrate the district court abused its discretion.

Case No. 124,397: In the Matter of Michael M. Spiegel Case No. 124,397 oral argument In an original proceeding in attorney discipline, the Supreme Court suspended Spiegel from the practice of law in Kansas for one year, effective from the filing of the opinion, for violations of Kansas Rules of Professional Conduct 1.7(a)(2) (2021 Kan. S. Ct. R. 336) (conflict of interest: current clients), 1.8(k) (2021 Kan. S. Ct. R. 346) (conflict of interest: current clients: specific rules), and 8.4(d) (2021 Kan. S. Ct. R. 427) (misconduct).

Appeal No. 123,302: State of Kansas v. Brandon T. Evans Appeal No. 123,302 archived oral argument Following Evans’ convictions for first-degree murder, aggravated battery, and criminal possession of a weapon, the Sedgwick County District Court denied Evans’ posttrial motion alleging his trial counsel was ineffective. On direct appeal, the Supreme Court affirmed the district court’s denial of Evans’ motion. In a unanimous opinion written by Justice Melissa Taylor Standridge, the Court rejected Evans’ claims that trial counsel was ineffective by coercing Evans and his witnesses to change their testimony and by disregarding a firearm expert’s testimony regarding the functionality of the victim’s gun.

Appeal No. 117,034: Mark T. Shreiner v. Chad S. Hodge and Danny Smith Appeal No. 117,034 archived oral argument In a 4-3 decision written by Justice K.J. Wall, the Kansas Supreme Court affirmed the Court of Appeals' decision and the Johnson County District Court's judgment granting summary judgment in favor of law enforcement officers Hodge and Smith, who were sued by Schreiner under the Kansas Tort Claims Act (KTCA) for damages he allegedly sustained during the officers' investigatory detention of Schreiner. The Court of Appeals held that the officers' conduct was privileged because they had reasonable suspicion to detain Schreiner, and thus they were entitled to summary judgment. On review, the Kansas Supreme Court held that the officers lacked reasonable suspicion to detain Schreiner but held that summary judgment was still appropriate because Hodge and Smith were entitled to discretionary function immunity under the KTCA. The Court reasoned that an officer's reasonable suspicion determination is a discretionary act within the meaning of the KTCA because it inherently requires the officer to exercise judgment and discretion based largely on experience and training, and the KTCA's discretionary function immunity applies to that determination whether the discretion is abused. The majority recognized that the Fourth Amendment to the United States Constitution and state statute require officers to possess reasonable suspicion to detain a person. The Court concluded that the reasonable suspicion requirement cannot be characterized as a clearly defined mandatory duty that forecloses discretionary function immunity because neither provision sets forth a mandatory process or protocol that officers must follow in determining whether reasonable suspicion exists under the totality of the circumstances. While the majority recognized that discretionary function immunity would not shield law enforcement from malicious or wanton conduct or from claims arising from an officer's breach of a specific duty owed to an individual (in contrast to law enforcement's general duty to preserve the peace), there was no evidence that these exceptions to discretionary function immunity applied under the facts of this case. Thus, the Kansas Supreme Court affirmed the Court of Appeals as right for the wrong reason. Justices Eric Rosen and Dan Biles filed separate dissenting opinions. Both justices believed that the Fourth Amendment and state statute impose a clearly defined mandatory duty requiring officers to have reasonable suspicion before detaining a person, and thus the officers' conduct was not a discretionary act within the meaning of the KTCA. Senior Judge Michael Ward, assigned, joined Justice Rosen's dissent. Appeal No. 122,680: State of Kansas v. Robert Glenn Terrell Appeal No. 122,680 archived oral argument In 2018, Terrell pleaded guilty to aggravated escape from custody. At sentencing, the court considered his criminal history, which included an offender registration violation conviction from 2005. In 2005, the violation was classified as a nonperson felony but in 2016, the Legislature changed the classification so that his registration violation would be considered a person felony. The Cowley County District Court treated the earlier conviction as a person felony. The Court of Appeals disagreed, treated it as a nonperson felony, and vacated his sentence. The Supreme Court took the case up for review. Writing for a unanimous Kansas Supreme Court, Justice Eric Rosen reversed the Court of Appeals and affirmed the district court’s sentence. The Court noted that the sentencing statutes do not explicitly tell the courts how they are to treat earlier convictions when the Legislature subsequently changes a crime’s classification. The Court looked to case law that has evolved around similar sentencing issues, as well as the intentions of the Legislature in enacting the Kansas sentencing guidelines. The Court concluded that a defendant’s criminal history can change as the Legislature amends classifications. It stated a rule that, under the sentencing guidelines, all prior convictions, whether out-of-state, pre-guidelines, or amended post-guidelines, are to be classified as person or nonperson crimes based on the classification in place at the time the new crime is committed. Appeal No. 123,831: State of Kansas v. Ramon Juiliano Summary calendar; no oral argument Juiliano was convicted of first-degree murder and criminal solicitation to commit first-degree murder and was sentenced to life in prison without the possibility of parole for 40 years. The Kansas Supreme Court affirmed the Wyandotte County District Court's denial of Juiliano's motion to correct an illegal sentence under K.S.A. 22-3504. In a unanimous opinion written by Justice Melissa Standridge, the Court found that the sentence orally imposed by the sentencing court conformed to the appropriate statutory language and that Juiliano is serving a legal sentence. On Juiliano's remaining claims of illegality based on the sentencing court's aggravated factor finding and journal entry discrepancies, the Court held that K.S.A. 22-3504 is an improper vehicle to challenge these procedural errors.

Appeal No. 120,434: State of Kansas v. Dwayne Lynn Patton

Appeal No. 120,434 archived oral argument

In State v. Reese, 300 Kan. 650, 333 P.3d 149 (2014), the Kansas Supreme Court held that sentencing courts generally should apply the version of K.S.A. 8-1567, the Kansas DUI law, in effect at the time of sentencing, even if the law has changed since the offense occurred. In a unanimous opinion written by Justice K.J. Wall, the Court clarified the rule established in Reese and held that sentencing courts should apply the version of K.S.A. 8-1567 in effect at the time of sentencing unless the Legislature amended the statutory provisions after the offense was committed and that amendment increases the defendant's penalty. In those circumstances, applying the intervening change in the law, based on the general rule in Reese, would violate the ex post facto clause of Article I, Section 10 of the United States Constitution.

The Court applied the clarified rule and reversed the decision of a panel of the Court of Appeals that had applied the 2018 version of K.S.A. 8-1567 to sentence Patton for his DUI conviction. Patton had committed his DUI before that law went into effect, and retroactively applying the 2018 version of the law to Patton would increase his punishment because the 2018 legislative amendments to K.S.A. 8-1567 would have required the sentencing court to count Patton's 2003 Oklahoma conviction and 2007 Missouri conviction as prior convictions when sentencing him as a repeat DUI offender under Kansas law. Under the version of the law in effect when Patton committed his offense, neither of those convictions would count for sentencing purposes because the elements of the Oklahoma and Missouri DUI statutes are not identical to or narrower than the elements of the Kansas DUI statute. The Court remanded the matter to the Reno County District Court for further proceedings.

Appeal No. 123,515: State of Kansas v. Marcus Butler

Summary Calendar; no oral argument

Butler filed a motion in Wyandotte County District Court for postconviction discovery under State v. Mundo-Parra, 58 Kan. App. 2d 17, 462 P.3d 1211, rev. denied 312 Kan. 899 (2020). In that decision, a panel of the Court of Appeals held that postconviction discovery should be allowed when the defendant shows that it is necessary to protect substantial rights. The district court denied Butler's motion. In a unanimous opinion written by Justice K.J. Wall, the Court affirmed the district court's decision. The Court held that, even if it assumed, without deciding, that the rule announced in Mundo-Parra is sound, Butler had failed to demonstrate that the district court's ruling constituted an abuse of discretion.

Appeal No: 122,837: State of Kansas v. Anthony Roberts Jr.

Appeal No. 122, 2837 archived oral argument

On direct appeal, the Supreme Court affirmed Roberts’ convictions for two counts of first-degree felony murder and one count each of intentional second-degree murder and attempted intentional second degree-murder. In a unanimous opinion written by Justice Melissa Standridge, the Court found no error in the Douglas County District Court’s failure to instruct the jury on voluntary manslaughter as an additional underlying felony of felony murder. The Court also held that the evidence was sufficient to support Roberts’ convictions, rejecting his claim that the State failed to establish the requisite intent to kill.

Appeal No. 120,464:  State of Kansas v. Dominic O'Shea Holder

Appeal No. 120,464 archived oral argument

The Supreme Court affirmed Holder's Reno County District Court convictions of possession with intent to distribute and conspiracy to distribute a controlled substance. In a unanimous decision written by Justice Dan Biles, the Court held the jury instruction stating a permissive inference that the jury may accept or reject about his intent to distribute marijuana did not align with the applicable law, K.S.A. 2020 Supp. 21-5705(e), because the statute required a rebuttable presumption. The Court then held the 450-gram threshold language contained in the same instruction was also erroneous since it lacked any connection to the trial evidence. The Court found instructional error, but ultimately concluded that error did not impact his convictions and therefore was harmless.

Appeal No. 122,706:  State of Kansas v. Tremayne M. Darkis

Appeal No. 122,706  archived oral argument

 Shortly after Darkis' probation term expired, his intensive supervision officer filed an arrest and detain notice seeking law enforcement assistance to arrest Darkis for probation violations that occurred during his probation term. The Supreme Court held that the statute authorizing a district court to revoke probation after probation has expired applies only if the revocation proceedings are initiated through the processes identified by the statute, which are a warrant or a notice to appear. No warrant or notice to appear was issued within the 30-day extension allowed by the statute. Therefore, the Montgomery County District Court lacked authority to revoke Darkis' probation. The Supreme Court reversed the lower courts.

Case No. 123,911: In the Matter of Marty K. Clark

Case No. 123,911  archived oral argument

A hearing panel found that Clark violated rules of the Kansas Code of Judicial Conduct while he was a magistrate judge when he used a couples' dating website to share nude pictures of himself with other patrons of the website. The panel concluded this violated rules governing confidence in the judiciary and extrajudicial activities. Respondent filed no exceptions to the panel's findings, conclusions, or recommendations. The Supreme Court accepted the panel's rulings and took no further action. Justice Caleb Stegall concurred with the result. He wrote separately to express his opinion that Judge Clark had not violated any of the Rules of Judicial Conduct.

Appeal No. 90,044: State of Kansas v. Reginald Dexter Carr

Appeal No. 90,198: State of Kansas v. Jonathan Carr

Appeal No. 90,044 archived oral argument

Appeal No. 90,198 archived oral argument

The Kansas Supreme Court issued opinions affirming the death sentences of brothers Reginald Carr and Jonathan Carr for the capital murder of H.M., A.S., B.H., and J.B. 

A jury in a joint trial convicted the brothers for crimes committed in a series of three incidents in December 2000 in Wichita. The first incident centered on the robbery and kidnapping of Andrew Schreiber. The second incident centered on the murder of Linda Ann Walenta. The final incident centered on a Birchwood Drive home invasion, which led to the brothers committing sex crimes, kidnappings, robberies, and, ultimately, murder and attempted murder against H.M., A.S., B.H., J.B., and H.G.

Each brother was found guilty of multiple offenses, including multiple counts of capital murder. After a separate sentencing proceeding, the jury sentenced both brothers to death.

Both R. Carr and J. Carr appealed to the Kansas Supreme Court, which issued an opinion affirming a single capital murder conviction for each brother, among other lesser convictions. However, the Court vacated the death sentence in each case, concluding that the Carrs' Eighth Amendment rights to an individualized sentencing were violated by the Sedgwick County District Court judge's refusal to sever the penalty phase.

The State sought and was granted a writ of certiorari by the United States Supreme Court. The U.S. Supreme Court held that the joint sentencing proceeding neither implicated the Carrs' Eighth Amendment rights nor violated their rights under the due process clause. As a result, the U.S. Supreme Court reversed the Kansas Supreme Court's decision and remanded the case to the Kansas court to address the appeal considering the U.S. Supreme Court's decision.

On remand, the Kansas Supreme Court reviewed more than 20 penalty phase issues the U.S. Supreme Court had not addressed, including two supplemental state constitutional issues raised after the U.S. Supreme Court's decision.

The Kansas Supreme Court rejected both challenges raised under the Kansas Constitution Bill of Rights. The court held that capital punishment does not infringe on the inalienable right to life protected by Section 1. The court noted that although the framers of the Kansas Constitution intended the right to be inalienable, they did not intend it to be nonforfeitable. And a defendant who has been convicted of capital murder beyond reasonable doubt forfeits this right, and the state is free to impose lawful punishment for the crime.

Appeal No. 122,584: State of Kansas v. Paul Corby

Appeal No. 122,584 archived oral argument

Corby pled guilty to two counts of illegal drug possession in Sedgwick County District Court. He agreed to a criminal history score of "B" based on two prior felonies for fleeing and eluding. On appeal, Corby argued the district court erred in scoring his prior convictions as felonies because the State failed to offer sufficient proof to support that classification. The Court of Appeals disagreed. In an opinion written by Justice Eric Rosen, the Supreme Court affirmed the Court of Appeals, ruling that under K.S.A. 2020 Supp. 21-6814, a defendant's admission to criminal history relieves the State of having to present anything more to support a proposed criminal history score.

Appeal No. 122,253: State v. Robert Cash Scheuerman

Appeal No. 122,253 archived oral argument

The Supreme Court affirms in part and reverses in part the decision of the Court of Appeals and affirms the judgment of the Barton County District Court after Scheuerman appealed his conviction for possession of methamphetamine with intent to distribute under K.S.A. 2016 Supp. 21-5705(a)(1) and (d)(3)(B), a level 3 drug felony. Scheuerman's conviction arose following a trial on stipulated facts to the district court. On appeal, Scheuerman argued—and the Court of Appeals agreed—that insufficient evidence existed to support his conviction because the amount of methamphetamine that he stipulated he possessed—at least 3.5 grams—was larger than the quantitative range proscribed under the level 3 felony version of the crime ("at least 1 gram but less than 3.5 grams"). Scheuerman also challenged the district court's refusal to suppress the results of a search of a car, which the Court of Appeals rejected on the basis that Scheuerman lacked "standing" as a passenger under the Fourth Amendment to challenge the search. The Supreme Court disagreed with the Court of Appeals' conclusion regarding sufficiency of the evidence, concluding instead that, where the undisputed evidence establishes the possession of a greater quantity of contraband than a charged crime encompasses, that evidence is sufficient to establish the possession of the amount contemplated by the charged crime. Thus, the Supreme Court concluded, sufficient evidence existed to support Scheuerman's conviction. The Supreme Court also affirmed the Court of Appeals' conclusion that Scheuerman could not challenge the search of the car.

Appeal No. 123,753: State of Kansas v. Derek Bedford

Summary Calendar, no oral argument

 The Supreme Court affirms the Wyandotte County District Court’s decision to deny Bedford’s motion for sentence modification. The Kansas Supreme Court held that K.S.A. 2020 Supp. 21-6628(c) did not provide Bedford an avenue for relief. The Court also denied Bedford's newly raised claim of an illegal sentence because his argument that the sentencing court failed to comply with the statutory "in writing" requirements in place at the time of Bedford’s sentencing did not give rise to a claim of illegal sentence.

Case No. 124,109: In the Matter of James D. Sweet

Case No. 124,109 archived oral argument

The Kansas Supreme Court disbars Sweet from the practice of law in the State of Kansas for violations of Kansas Rules of Professional Conduct KRPC 1.1 (competence), KRPC 1.2 (scope of representation), KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.16 (terminating representation), KRPC 3.2 (expediting litigation), KRPC 8.1 (cooperation), KRPC 8.4 (professional misconduct), former Rule 207 (cooperation), and Rule 228(i) (oral argument). This disbarment is effective on the filing of this opinion.

Appeal No. 121,729: State of Kansas v. Marcus L. Wilson

Appeal No. 121,729 archived oral argument

 Wilson committed multiple probation violations. A district court judge imposed a 180-day sanction consistent with Wilson's agreement with the State after his first violations. Shortly after his release from the 180-day sanction, Wilson stipulated to a second violation and agreed to serve a 48-hour jail sanction. A few months later, a district court revoked Wilson's probation after finding that Wilson committed two additional probation violations testing positive for THC and not attending drug and alcohol treatment as directed. The Supreme Court reversed the Sedgwick County District Court and remanded for reconsideration because the district court's revocation failed to follow the graduated sanctions scheme in force at the time Wilson committed the offenses underlying his convictions. On remand, the district court may impose a sanction in the order allowed by statute or revoke if it follows the statutory scheme for bypassing graduated sanctions.

Appeal No. 122,301: State of Kansas v. Denis Antonio Alfaro-Valleda

Appeal No. 122,301 archived oral argument

 A jury convicted Alfaro-Valleda of first-degree premeditated murder. Alfaro-Valleda directly appealed his conviction, arguing five errors support reversal. The Supreme Court found no reversible error. The Supreme Court concluded the Wyandotte County District Court did not err when it admitted a single autopsy photograph that Alfaro-Valleda argued was more prejudicial than probative nor when the district court refused to list the word "guilty" before "not guilty" on the verdict form. The Supreme Court found prosecutorial error arising from statements the prosecutor made during closing argument asserting "we know" certain information when the information that followed required the jury to draw inferences from the evidence presented. The Supreme Court also presumed error resulted from the district court's failure to instruct the jury to limit the jury's consideration of certain evidence that was admissible for some purposes but not all. The Kansas Supreme Court concluded these errors, whether considered individually or cumulatively, did not affect the jury's verdict, and therefore affirmed Alfaro-Valleda's conviction.

Appeal No. 124,205: Kristin Butler and Scott Bozarth v. Shawnee Mission School District Board of Education

Appeal No. 124,205 archived oral argument

The Supreme Court reversed a Johnson County District Court decision declaring 2021 Senate Bill 40 unconstitutional. The legislation was enacted in March 2021 and included provisions concerning state and local emergency management measures related to the COVID-19 pandemic.

Parents of schoolchildren in the Shawnee Mission School District challenged the district's policy requiring face coverings on school grounds. They sued the district under a provision in S.B. 40 permitting parents to dispute a district's pandemic policy within 30 days and to receive relief if that policy was not narrowly tailored to respond to the emergency. The bill also imposed timelines on district courts to process S.B. 40 lawsuits. The Attorney General intervened after the district court, without prompting from the parents or the district, questioned S.B. 40's constitutionality.

The district court dismissed the parents' suits because they did not challenge the face-covering policy within 30 days. But the court also ruled the legislation violated the federal and state constitutions by depriving the school district of due process and interfering with court operations by imposing the timelines. The Attorney General appealed the ruling on S.B. 40's constitutionality directly to the Supreme Court.

In an opinion written by Justice Dan Biles, the Supreme Court reversed the portion of the district court's decision declaring the bill unconstitutional, as the case was fully resolved by the district court's decision that the lawsuits were not timely. Expressing no opinion on S.B. 40's validity, Biles wrote that the court recognized its "decision may be just a temporary retreat from a raging storm, but it reflects necessary adherence to a long-standing doctrine of judicial self-restraint known as constitutional avoidance. This rule strongly counsels against courts deciding a case on a constitutional question if it can be resolved in some other fashion, especially when the question concerns the validity of a statute enacted by our coordinate branches of state government."

 Chief Justice Marla Luckert dissented, arguing the appeal should be dismissed for lack of jurisdiction. She said the district court lacked authority to reach S.B. 40's constitutionality once it decided the lawsuits were untimely. She explained that any appellate review of the district court's judgment would be advisory only, violating the state Constitution's limit on Kansas courts' powers to resolve actual cases or controversies. Justice Caleb Stegall joined her dissent.

Appeal No. 121,159: State of Kansas v. Andre C. Rhoiney Jr.

Appeal No. 121,159 archived oral argument

The Supreme Court affirmed Rhoiney’s convictions for felony murder, criminal discharge of a firearm at an occupied vehicle, and aggravated assault. The Court dismissed two of Rhoiney’s five assertions of error as unpreserved for appeal, and thus waived under Kansas law.

The Court found one instance of prosecutorial error but held the Shawnee County District Court's prompt instruction to disregard cured this error. The Court also assumed without deciding an instructional error but held this assumed error to be harmless. Ultimately, the Court determined that the cumulative effect of any errors was harmless because of their minor impact and the overwhelming evidence of Rhoiney’s guilt.

Appeal No. 121,765: First Security Bank v. David Buehne and Linsay Buehne, et al.

Appeal No. 121,765 archived oral argument

The Kansas Supreme Court affirms the decision of the Court of Appeals, and the judgment of the Meade County District Court after the Buehnes appealed the district court's entry of summary judgment in favor of First Security Bank for its action to foreclose on the commercial promissory note the Buehnes executed. The Buehnes argued that the statute of limitations had already run by the time First Security Bank filed the foreclosure action. The Buehnes further argued that a contractual clause in their commercial promissory note purporting to waive the statute of limitations "to the full extent permitted by law" was void as against public policy. The Supreme Court disagreed, concluding that the phrase "to the full extent permitted by law" rendered the overall clause acceptable from a public policy perspective, particularly because the Buehnes presented no evidence of prejudice arising from any delay on the part of First Security Bank in bringing the foreclosure action and because the promissory note was commercial in nature. Because the Buehnes' contractual waiver of the statute of limitations was lawful, the Supreme Court affirmed the district court's grant of summary judgment to First Security Bank.