In re Dennis, 82,783.

• Decision Date: 29 October 1999
• Docket Number: No. 82,783.,82,783.
• Citation: 268 Kan. 48,991 P.2d 394
• Parties: In the Matter of STEPHEN J. DENNIS, Respondent.
• Court: Kansas Supreme Court

268 Kan. 48

991 P.2d 394

In the Matter of STEPHEN J. DENNIS, Respondent.

No. 82,783.

Supreme Court of Kansas.

Opinion filed October 29, 1999.

Stanton A. Hazlett, disciplinary administrator, argued the cause, and was on the formal complaint for the petitioner.

Stephen J. Dennis, respondent, argued the cause pro se.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Stephen J. Dennis of 7270 West 98th Terrace, Suite 220, Overland Park, an attorney admitted to the practice of law in the state of Kansas.

Dennis appeared before a panel of the Kansas Board for Discipline of Attorneys to answer a four-count complaint involving representation of four different clients. After the panel heard evidence, it concluded in its final hearing report that Dennis had violated KRPC 1.1 (1998 Kan. Ct. R. Annot. 279) (competence), 1.3 (1998 Kan. Ct. R. Annot. 288) (diligence), 1.4 (1998 Kan. Ct. R. Annot. 296) (communication), 1.15 (1998 Kan. Ct. R. Annot. 333) (safekeeping property), 1.16 (1998 Kan. Ct. R. Annot. 341) (declining or terminating representation), 3.3 (1998 Kan. Ct. R. Annot. 354) (candor toward the tribunal), and 8.4 (1998 Kan. Ct. R. Annot. 386) (misconduct) and Supreme Court Rule 207 (1998 Kan. Ct. R. Annot. 222) (failure to cooperate and respond to inquiries in a disciplinary investigation). The panel recommended indefinite suspension from the practice of law.

While respondent filed exceptions to the final hearing report of the panel of the Kansas Board for Discipline of Attorneys, no brief was filed, and the respondent is deemed to have conceded the findings of fact made by the hearing panel are supported by the evidence pursuant to Supreme Court Rule 212(e)(4) (1998 Kan. Ct. R. Annot. 236); see State v. Nelson, 233 Kan. 473, 473, 663 P.2d 303 (1983). The findings of fact and conclusions of law made by the hearing panel are as follows:

"1. Stephen J. Dennis is an attorney at law, Kansas Attorney Registration Number 12453. His last registration address with the Clerk of the Appellate Courts of Kansas [is in] Fairway, KS .... The Respondent's new address is [in] Overland Park, KS ....

"COUNT I — A7149

"Powell Complaint

"2. Thomas and Beatrice Powell retained the Respondent in September 1995 to represent them in an appeal to be filed with the Court of Appeals of the State of Kansas in an action previously tried in the District Court of Bourbon County, Kansas. (Thomas Powell, et al. v. The City of Fort Scott, Kansas.) The Respondent and the Powells entered into a written fee contract on September 4, 1995, which called for a fee not to exceed a total of $5,000.00. The Powells paid the Respondent $1,250.00 on July 1, 1996, and an additional $1,000.00 on October 1, 1996. The Powells also paid $2,200.00 to a court reporter to obtain a transcript of the district court trial. This transcript was provided to the Respondent for his review.

"3. Mr. and Mrs. Powell signed a written fee contract. (Exhibit 3) The Powells never received a contract which was signed by the Respondent.

"4. On May 20, 1996, the Respondent, on behalf of the Powells, filed a motion for leave to file a docketing statement out of time. That motion was granted on June 5, 1996, and the appeal proceeded as No. 96-76801-A. The docketing statement was filed by the Respondent on June 5, 1996.

"The appeal arose out of the Powells' assertion that Mr. Powell had been unlawfully arrested and beaten on August 6, 1992 by two members of the Fort Scott Police Department. On appeal, the Respondent raised issues of failing to direct a verdict in favor of the plaintiffs. The verdict being against the weight of the evidence, failure of the trial court to grant the motion for a new trial filed by the Powells, and an allegation that the trial court failed to adequately investigate allegations of jury misconduct.

"5. On August 14, 1996, the Respondent filed a motion for extension of time. He requested and was granted until September 13, 1996 to file his client's brief. On September 13, 1996, the Respondent filed an additional motion for extension of time. This motion was granted and the Respondent was given until October 15, 1996 to file his client's brief. The Respondent was advised by the court that no further extensions of time would be granted.

"6. On December 11, 1996, an order signed by Judge Robert L. Gernon dismissed the Powells' appeal due to failure to file a timely brief. (Exhibit 6) The Respondent never provided the Powells with any written explanation for [why] he failed to pursue the appeal.

"7. In June 1997 the Powells retained Howard Bodney, a Kansas attorney, to investigate the possibility of a legal malpractice claim against the Respondent for failure to pursue the Powells appeal. On June 23, 1997, both the Powells and Howard Bodney wrote a letter to the Respondent informing the Respondent of Bodney's representation of the Powells and requesting a copy of Respondent's file as quickly as possible. The trial transcript, which the Powells had paid for, was also requested. The Respondent did not respond to this request. On October 29, 1997, Mr. Bodney wrote another letter to the Respondent in which he requested the file and transcript. The Respondent did not respond to this request and has never returned the file or the transcript.

"8. The Respondent failed to diligently and competently pursue the appeal of the Powells and failed to return the file and transcript of the Powells to them upon proper request and failed to make an accounting to the Powells regarding the fees which they paid to him when the Powells terminated his representation.

"9. On January 9, 1998, the Respondent met with the investigator of this complaint, Mr. Clifford Cohen. At the end of that meeting, the Respondent promised to provide the investigator with documents and a letter of explanation with regard to the appeal. The Respondent failed to provide this information to the investigator.

"Count II — DA7172

"Harbert-Yeargen Complaint

"10. A complaint was docketed as a result of information received by the Disciplinary Administrator's office regarding the Respondent's representation of a corporation, Harbert-Yeargen, Inc. The representation involved a case filed in the United States District Court for the District of Kansas.

"11. A lawsuit was filed in the United States District Court for the District of Kansas on September 5, 1996. A company named Dayco Printing was the plaintiff in the action styled Dayco Printing v. Harbert-Yeargen, Inc., et al., 96-2389-KHV. The cause of action was for recovery under a payment bond on a federal construction project located in the state of Kansas.

"12. A named defendant in the action, Commercial Waterproofing, Inc., filed an answer and a cross-claim on October 30, 1996 against Harbert-Yeargen.

"13. The Respondent was retained by Harbert-Yeargen on November 5, 1996 to represent its interests in the lawsuit. On November 21, 1996, the Respondent acknowledged receipt of suit papers from his client. In a letter to a representative of Harbert-Yeargen, the Respondent made the following statement: `Rest assured that I will protect the answer date and will protect the interests of Harbert-Yeargen, Inc.' Commercial Waterproofing filed a motion for default judgment. On March 27, 1997, an order was signed by The Honorable Kathryn Vratil, U.S. District Court Judge, finding Harbert-Yeargen in default for failure to answer the cross-claim. Commercial Waterproofing was granted a default judgment against Harbert-Yeargen for $60,990.00.

"14. On June 12, 1997, the Respondent filed his entry of appearance on behalf of Harbert-Yeargen. On that same date, the Respondent filed a motion to set aside judgment and for leave to file an answer out of time. The Respondent stated that the basis for his request for relief was `excusable neglect' under the Federal Rules of Civil Procedure (60(b)(1)). The Respondent claimed in that motion that he did not know that Harbert-Yeargen had been properly served or that the default judgment had been rendered until June 6, 1997.

"15. On August 12, 1997, in a memorandum and order signed by Judge Vratil, the court found that there was no `excusable neglect' and the Respondent's motion was denied. The default judgment against Harbert-Yeargen was allowed to stand.

"16. On October 24, 1997, Richard Enochs entered his appearance on behalf of Harbert-Yeargen. On October 24, 1997, Richard Enochs filed a motion to set aside judgment pursuant to Federal Rules of Civil Procedure 60(b)(6). Mr. Enochs alleged that the default judgment should be set aside because of the `gross neglect of previous counsel,' the respondent, Stephen J. Dennis. In the motion to set aside judgment filed by Mr. Enochs, the following information was provided to the court and was either admitted to by the Respondent or proved by clear and convincing evidence.:

a. Harbert-Yeargen first contacted the Respondent about representing it on September 5, 1996.

b. On November 21, 1996, the Respondent acknowledged receipt of suit papers, including the answer and cross-claim of co-defendant against Harbert-Yeargen and replied to this defendant, `rest assured, I will protect the answer date and protect the interest of Harbert-Yeargen.'

c. On January 21, 1997, Mr. David Gorman, in-house counsel for Harbert-Yeargen was advised by the Respondent that he had filed an answer. (Exhibit 15)

d. On January 29, 1997, a letter was forwarded to the Respondent advising him of the pleadings. Harbert-Yeargen again asked the Respondent to protect the company's interests.

e. On April 10, 1997, a letter from David Gorman was forwarded to the Respondent enclosing the answer and cross-claim involving the personal service which had been obtained upon the defendant, asking him to file the appropriate response. (Exhibit 14)

f. The Respondent took the position on behalf of his client Harbert-Yeargen that the cross-claim had

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