Last week the Kansas Court of Appeals answered a question that’s been lurking in planning offices for years: how do you count property held by co-owners when you’re totaling signatures on a zoning “protest petition”?

Prairiewood Holdings, LLC v. Board of Riley County Commissioners, No. 127,166 (Kan. Ct. App. July 11 2025)

Quick refresher:  Under K.S.A. 12-757, if owners of 20 percent of the land within 1,000 feet of a parcel sign a protest petition, a county commission must approve the rezoning by a ¾ supermajority. That percentage is calculated by acreage, not headcount.

The knotty question:  What if Tract A is owned 50/50 by siblings Alice and Bob as tenants-in-common, and only Alice signs? Do you count:
 1. the entire tract (because Alice is an owner of record), or
 2. only Alice’s half (because Bob didn’t sign)?

The court’s answer: Count only the signing owner’s proportional share. “When a protesting owner is a tenant in common or joint tenant, acreage proportionate to that owner’s undivided interest is credited toward the 20 percent.”

In Prairiewood, the county credited just 14.26 of a 28.52-acre tract because only one co-owner signed. Without that reduction the petition would have crossed 20 percent; with it, the protest failed and the rezoning stood.

Why it matters:
 • Predictability for planners & developers – Staff now have a bright-line rule when certifying petitions.
 • Fairness to non-signing co-owners – Your acreage isn’t “commandeered” into a protest you never joined.
 • Strategic filing – Petition circulators must chase every cotenant’s signature—or do the math to see if they can win without it.

Kansas Court of Appeals (Gould v. Crawley, July 2025) just reminded us:

 • A broad release (“all claims … arising out of the action”) sweeps in law-firm fee requests—even ones based on discovery fights.
 • Courts keep jurisdiction to award fees after a case is dismissed, but only if the settlement leaves that door open.
 • No carve-out = no post-deal fee motion. 

Practical tip: When you draft a settlement, spell out whether sanctions / Rule 11 / discovery-cost claims survive. Otherwise, they’re gone the moment the dismissal hits the docket.

EEOC v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kan. July 7, 2025)
 
What happened? A Burger King supervisor allegedly groomed and sexually assaulted an employee when she was 15. She and the EEOC are now suing the restaurant’s owner for sexual harassment. The young woman recently turned 18, so the normal rule would reveal her full name in all future filings.

The ruling: Judge Angel Mitchell said the plaintiff may continue as “L.Z.”—even though she is now an adult—because:
 1. Highly sensitive subject. Sexual abuse of a minor is “exceptional,” and courts routinely       shield identities in such cases.
 2. Risk of further harm. Public exposure could amplify the very emotional injuries the suit seeks to address.
 3. Little public need. The defendant already knows who she is, and open-court principles are satisfied by revealing the facts, not the victim’s name.

The court left open whether anonymity should continue if the case reaches a jury trial, but for all pre-trial stages, L.Z. stays anonymous.

Why it matters: Victims can still pursue justice without losing control over their privacy—especially when the alleged misconduct happened during childhood.

Background: Kansas nonprofits often send voters advance-ballot applications already filled with the voter’s name and address to make it easier to request a mail ballot. In 2021, the Legislature added a final line to K.S.A. 25-1122(k)(2) aimed squarely at that practice:
“No portion of such application shall be completed prior to mailing such application to the registered voter.”

Ruling: Judge Kathryn Vratil held that this sentence violates the First Amendment. It is a content-based speech restriction targeting groups that promote mail voting, and it is not narrowly tailored—existing anti-fraud tools already address the State’s concerns. The court permanently barred enforcement of that sentence. Of course, this is a district court decision which a party could appeal.

In Maxwell v. College Hills Opco, LLC, 2025 U.S. Dist. LEXIS 126044 (D. Kan. July 2, 2025), the court denied a motion to compel internal CASPER reports used in a nursing home’s quality assurance process.

Even though the reports were emailed internally, Judge Birzer held they remained protected under Kansas peer review and quality assurance privileges. In camera review confirmed they qualified.

Kansas law imposes caps on three main types of damages. Importantly, if comparative fault is found, the plaintiff’s percentage of fault is applied to reduce the damages before the statutory cap is applied.

• Non-Economic Damages in Wrongful Death Cases:
A wrongful death claim is brought by the heirs of a deceased person to recover for their own losses. Non-economic damages — such as bereavement and loss of companionship — are capped at $250,000 per death, regardless of the number of heirs. The judge apportions the recovery among the heirs.

• Damages Against Municipalities:
In tort claims against municipalities, total damages are capped at $500,000 or the amount of insurance the municipality has purchased, whichever is greater.

• Punitive Damages:
Punitive damages are capped at the lesser of the defendant’s highest annual gross income for the five years before the misconduct or $5 million. If the defendant’s misconduct was especially profitable, the cap can instead be 1.5 times the amount of the profit.

A deposition is one-way parties in a lawsuit are able to obtain sworn testimony from individuals before trial. One way to consider it is like an interview under oath; the person being deposed (the deponent) is asked questions by the lawyers involved in the case. Depositions are recorded in writing by court reporters and are sometimes video recorded as well. Preparing for a deposition varies depending on the deponent’s role in the lawsuit, so it is a good idea to meet with a lawyer beforehand.

Even if you believe you did not do anything wrong, being sued is no light matter. Get in touch with a lawyer as soon as possible to help you decipher the Complaint/Petition. A lawyer will ensure you do not miss any important deadlines and may be able to advise you on the next steps.

In civil litigation, I get calls from people who believe they’ve been defamed—by a coworker, a journalist, or someone online. We walk through the elements: Was it a false fact? Did they know or have reason to know it was false? Was there actual harm? Is it more like an opinion or political speech?

But here’s one they never expect:
If a federal employee defamed you—even if it cost you your job—can you sue?

The answer is no. Not even with a strong case.

In Brown v. United States, Case No. 25-2222-KHV (D. Kan. June 10, 2025), a federal employee allegedly made false statements that got the plaintiff’s security clearance revoked and led to over $100,000 in lost wages. But because the statements came from a government employee acting within the scope of her duties, the claim was barred.

Key takeaway: The federal government is immune—even from egregious accusations. The Federal Tort Claims Act specifically excludes defamation.

Court approval is required in the following situations. Whenever court approval is sought, the court commonly reviews additional matters such as the reasonableness of attorney fees, the expenses incurred, and whether payments made for the benefit of minors or incapacitated persons are being properly handled.

• Settlements involving a minor or incapacitated person:
Minors and incapacitated persons do not have the legal capacity to enter into binding contracts, including settlement agreements. Court approval is recommended to ensure the settlement is reasonable and to protect all parties from future claims by the minor or incapacitated person. In very small cases, clients may make a business judgment that the risk of a later challenge is low enough that court approval is not worth the additional cost.

• Medical malpractice settlements involving payment by the Kansas Health Care Stabilization Fund: If the Kansas Health Care Stabilization Fund is contributing to a settlement, court approval is required. The court must specifically find that the settlement is “valid, just and equitable” under Kansas law (K.S.A. 40-3410), and will also review the reasonableness of attorney fees (K.S.A. 7-121b).

• Wrongful death settlements:
Court approval of the settlement itself is not required. However, the court must hold a hearing to apportion the settlement among the heirs (K.S.A. 60-1905).

Possibly, but it depends on whether dual representation is allowed under the Kansas Rules of Professional Conduct.

Under Rule 1.7, a lawyer cannot represent two clients if their interests are directly adverse or if there is a substantial risk that the lawyer’s responsibilities to one client will materially limit the representation of the other. However, even if a potential conflict exists, a lawyer may represent both clients if:

• The lawyer reasonably believes competent and diligent representation can be provided to each client,

• The law does not prohibit the representation,

• The representation does not involve one client making a claim directly against the other, and

• Each client gives informed consent in writing.

In the context of a lawsuit against a company and its employee, dual representation is sometimes possible if their defenses are aligned and neither party is blaming the other. However, if their interests diverge — for example, if the company wants to argue that the employee alone was at fault, or vice versa — then dual representation would not be allowed, and separate attorneys would be needed. Before proceeding with dual representation, we will evaluate whether the necessary conditions are met and will seek informed, written consent from both parties.

Kansas law does not allow a plaintiff to state an exact amount of damages in the petition if they are seeking more than $75,000 and the amount is not capable of mathematical certainty. Instead, they must simply allege that they are seeking “an amount in excess of $75,000.” This is a procedural rule (K.S.A. 60-208(b)) and does not necessarily reflect the true amount the plaintiff is seeking.

The actual amount the plaintiff claims can be requested through a Rule 118 request. Within two weeks of the request, the plaintiff must file and serve a response stating a specific dollar amount, which will be higher than $75,000. Even then, the amount stated may or may not be reasonable. If the plaintiff later wants to increase the amount claimed, they must file a motion and show good cause. However, they can reduce the amount without court approval. This can incentivize plaintiffs to start with a higher number at the beginning of the case.

A Reservation of Rights means the insurance company is defending you for now but may later deny coverage — and may also withdraw its defense if it determines the claims are not covered. It protects the insurer’s ability to contest coverage while still providing a defense during the case.

On June 14, 2019, the Kansas Supreme Court in Hilburn v. Enerpipe Ltd (No. 112,765) struck down K.S.A. 60-19a02, which capped non-economic damages in personal injury actions.

Hilburn was an automobile negligence case. The jury awarded the injured plaintiff $335,000, comprising $33,490.86 in economic damages for medical expenses and $301,509.14 in non-economic “pain and suffering” damages. The trial court, applying the K.S.A. 60-19a02 cap reduced the non-economic damages award to $250,000. [Note: In 2014, the Legislature increased the cap to $325,000 and allowed for an increase to $350,000 after July 1, 2022.]

A divided Court held that the statutory cap violates the “right to trial by jury” in Section 5 of the Kansas Bill of Rights by intruding “upon the jury’s determination of the compensation owed to redress her injury.” The Court rejected its own quid pro quo test in Miller v. Johnson 295 Kan. 636 (2012) for deciding the constitutionality of a statutory non-economic damages cap.

The Hilburn decision creates uncertainty about the future of other statutory damage caps. Miller was a medical negligence case. Although the Hilburn Court rejected the Miller Court’s rationale, the Hilburn Court did not decide the constitutionality of the cap in a medical negligence case. Historically, Kansas has considered statutory caps for medical negligence separately from those for other personal injury actions. However, the plaintiff’s bar argues that since 1988, Kansas has not statutorily differentiated between the caps.

Given this uncertainty, health care providers may experience increasing medical liability insurance premiums. Cases are now working their ways through courts that will decide whether the Hilburn holding is applied in medical negligence cases.

On February 13, 2020, the Kansas House Committee on Judiciary introduced House Bill No. 2673 that would fast track cases. If passed, the Kansas Supreme Court would have original jurisdiction to decide “the construction and validity of K.S.A. 60-19a02, and amendments thereto, or any other law that creates a limitation in a medical malpractice liability action on a claim for noneconomic loss, following the decision in the case of Hilburn v. Enerpipe Ltd., No. 112,765, June 14, 2019.” The bill is assigned to the House Appropriations Committee.

Also, the Legislature has studied the possibility of amending the Kansas Constitution to reject the Hilburn holding. To date no resolution has been introduced for such an amendment.

By rule, federal courts in the District of Kansas require that a motion to compel discovery be “filed and served within 30 days of the default or service of the response, answer, or objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause. Otherwise, the objection to the default, response, answer, or objection is deemed waived.” D. Kan. Rule 37.1(b).
This rule may not be as mechanical as it seems.

The rule’s purpose is to “ensure the court can address discovery disputes while they are still fresh, and in turn expedite litigation.” Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC-KGS, 2015 U.S. Dist. LEXIS 193782, 2015 WL 13047860 (D. Kan. Mar. 31, 2015). Black & Veatch and other decisions in the district confirm that the triggering event is the date of the challenged discovery response or the discovery default. Black & Veatch interpreted the 30-day period as beginning when specific information first leading to a dispute is discovered. That deadline is not tolled “while the parties are engaged in efforts to resolve the discovery dispute without judicial intervention.” However, the parties may “request, prior to expiration, an extension of the deadline to file a motion to compel with respect to any discovery dispute upon which the parties are still conferring.”

On April 11, 2019, in Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM (D. Kan.), a federal magistrate judge denied the defendant’s unopposed motion to extend the deadline. (ECF No. 77) The judge’s order acknowledged “that some judges in this District prefer that parties file such motions on or before the 30-day time period set forth in D. Kan. Rule 37.1(b) expires—e.g., when the parties are continuing to meet and confer to resolve discovery disputes.” Nonetheless, the judge wrote, “[t]he undersigned does not interpret D. Kan. Rule 37.1(b) to require parties to file a motion for extension of time if they are engaged in meeting and conferring.” The judge continued, “[c]ategorical motions for extensions . . . are generally hypothetical and unmeritorious in the abstract.” The judge concluded, “[I]f and when a party files a motion to compel after the 30-day deadline set forth in D. Kan. Rule 37.1(b), the undersigned will, however, expect the party to demonstrate good cause for the late filing by setting forth the parties’ diligence in attempting to resolve the discovery dispute at issue.”

In a later, January 29, 2020, order in that case the judge found the plaintiff’s motion to compel was untimely because the defendant’s alleged failure over a period of months to meet and confer should have been enough to prompt the plaintiff to bring the matter to the court’s attention sooner. (ECF No. 254).

Not every company’s communication with its in-house counsel is privileged. Only confidential communications which involve the requesting or giving of legal advice are privileged. Dartez v. Peters, No. 15-3255-EFM-GEB,2019 U.S. Dist. LEXIS 123178 *43, 2019 WL 3318185 (D. Kan. July 24, 2019). There must be a clear connection “between ‘the subject of the communication and the rendering of legal advice’ for the attorney-client privilege to shield the communication from disclosure.” Id. Further, “legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice.” Id.

There is no presumption “that a company’s communications with counsel are privileged.” EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), opinion withdrawn and superseded, 876 F.3d 690, 695-97 (5th Cir. 2017). The party asserting the attorney-client privilege and work-product protection, bears the burden to show that either the privilege or the protection, or both, apply. Dartez 2019 U.S. Dist. LEXIS 123178 *43.

For the attorney-client privilege to apply, Kansas courts require a “clear showing” that the attorney was acting in his or her professional legal capacity. Id. This starts with a “detailed and specific” showing in the privilege log. Id. at **43-44. But the mere conclusory assertion of an attorney-client privilege in the privilege log, “without more information, is insufficient.” Id. at *49. The privilege’s proponent must provide “sufficient information to enable the court to determine whether each element’ of the asserted privilege is satisfied.” Id. at 45. This burden can be met “only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege.” Id. at *44. One court put the same notion this way: “[c]alling the lawyer’s advice as ‘legal’ or ‘business advice’ does not help in reaching a conclusion; it is the conclusion.” United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).

In federal court, work product protection for the company’s investigation materials depends on whether “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.” Fed. R. Civ. P. 26(b)(3). Company materials prepared in the ordinary course of business or investigative work are not protected unless they were done under the supervision of an attorney in preparation “for the real and imminent threat of litigation or trial.” Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013). That means there must be a real and substantial probability that litigation will occur at the time the materials were prepared. Id. Also, courts look “to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work-product doctrine.” Id.

In Dartez, a police brutality case, the plaintiff had issued a records subpoena to the Kansas Highway Patrol for an internal investigation of the Patrol’s Special Response Team. The Patrol responded and logged a 98-page report written by the Patrol’s outside counsel for the Patrol’s Chief Legal Counsel, asserting it was done in anticipation of litigation. Dartez, at **37-38. After an in camera review the court decided the report’s main purpose was to evaluate the Special Response Team’s “operations to make recommendations for improvement and to ensure compliance with current law enforcement practice.” Id. at **49-52. The court found one area in the report that “might come close to being legal advice.” Nonetheless, the court decided it was “incidental to the overall business purpose of the Report.” Id. at *50.

As for whether the report was protected by the work product doctrine, the court noted the Patrol failed to provide any details about anticipated litigation. The court decided,“there is no way to know whether the threat of litigation was ‘real’ and ‘imminent’ at the time the document was prepared.” Id. at *47. The court ordered that the report be produced to the plaintiff.

An adversary’s threats to sue can support a work product claim, but that is not always so. In Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM, 2019 U.S. Dist. LEXIS 176497 (D. Kan. Oct. 8, 2019), the court decided that “[w]here parties continue to resolve disagreements amicably, litigation is ‘not a substantial and significant threat.’”
2019 U.S. Dist. LEXIS 176497 *22.

In sum, even when a company is negotiating to resolve a dispute amicably, to ensure that the attorney-client privilege and work product protection applies the company should internally document that its in-house counsel is conducting an investigation in anticipation of litigation and for the purposes of providing legal advice to the company. If the
in-house counsel is providing business advice it should be documented separately from the attorney’s legal advice. Putting business advice and legal advice in the same document risks that a redacted version will be produced in litigation during discovery.

In Bollinger v. Sonic Industries, LLC, No. 126,871 (Kan. Ct. App. May 9, 2025), the Kansas Court of Appeals reminded us that a meritorious defense can justify relief—even if the party dropped the procedural ball.

Sonic was hit with a $107,000 default judgment as a garnishee after answering late and using the “wrong” form. The district court found no excusable neglect and called Sonic’s conduct “reckless indifference.”

But Sonic had a defense: the debtor never worked there.

The appellate court reversed and remanded with directions, holding that:

1. The district court made factual errors. Sonic did eventually use the correct form and did send a copy.
2. It committed a legal error by refusing to consider relief under K.S.A. 60-260(b)(6), the catch-all provision.

Kansas law favors judgments on the merits. When a garnishee never held assets and the debtor wasn’t their employee, the court has discretion to undo a technical default.

Lesson: Even without “excusable neglect,” if you’ve got a real defense, don’t give up.

In Landlords of Lawrence v. City of Lawrence, No. 127,980 (Kan. Ct. App. May 16, 2025), landlords argued that a city ordinance was unconstitutionally vague. Kansas courts apply a two-part test:

1. Does the law give fair notice?
2. Does it guard against arbitrary enforcement?

The Court of Appeals said yes to both. The ordinance simply required landlords who choose to participate in housing subsidy programs to follow those programs’ rules.

As the U.S. Supreme Court has said, “we can never expect mathematical certainty from our language.” But this ordinance, the court held, was clear enough to pass constitutional muster.

In my practice as a defense lawyer, I sometimes represent doctors who’ve been sued by inmates representing themselves. One of those cases was filed by Michael Scriven, who brought a §1983 lawsuit against a doctor I represent, other medical providers, and Sedgwick County.

We were able to get the case dismissed as to our client, but the case continued against others. It dragged on for years and eventually settled.

This week, I saw that Mr. Scriven filed yet another lawsuit. In response, the defense team—apparently at their limit filed a motion to label him a vexatious litigant, asking the court to impose pre-filing restrictions.

The case is:
Scriven v. VitalCore Health Strategies LLC,
Case No. 22-cv-3282-EFM-RES (D. Kan. May 20, 2025)
Chief Judge Eric F. Melgren

The judge denied the motion, emphasizing that although Scriven had filed meritless motions and was difficult to deal with, his conduct did not meet the “manifestly abusive” standard required to impose such restrictions. The ruling confirms just how narrow and rarely granted vexatious litigant designations are in federal court.

Key takeaway: Even a long history of difficult pro se litigation isn’t enough on its own—courts require a clear, documented pattern of abuse, not just accumulated aggravation.

In Kansas v. Pfizer, Inc., the federal court ordered the case back to state court… but then hit pause.

Here’s what happened:
Pfizer had removed the case to federal court, arguing that it was acting under a federal officer —a strategy that can sometimes keep lawsuits in federal court under 28 U.S.C. § 1442.

But the judge disagreed and ordered the case remanded to state court.

Before the case could officially land back in Thomas County, Pfizer filed an appeal of the remand order, arguing the court got it wrong about federal-officer jurisdiction.

The judge then ruled: A remand order is automatically stayed for 30 days under Rule 62
Once Pfizer appealed during that window, the federal court lost the power to carry out the remand. remand had already been mailed to the state court, that mailing didn’t count.

Even though the Kansas v. Pfizer, Inc., 2025 U.S. Dist. LEXIS 103047 (D. Kan. May 30, 2025)

A good reminder that federal procedure can still throw curveballs—even after a seemingly simple remand.