In re Royer

• Decision Date: 31 October 2003
• Docket Number: No. 90,703.,90,703.
• Citation: 78 P.3d 449,276 Kan. 643
• Parties: In the Matter of ROBERT H. ROYER, JR., Respondent.
• Court: Kansas Supreme Court

276 Kan. 643

78 P.3d 449

In the Matter of ROBERT H. ROYER, JR., Respondent.

No. 90,703.

Supreme Court of Kansas.

Opinion filed October 31, 2003.

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

Ann L. Hoover, of Topeka, argued the cause for the respondent, and Robert H. Royer, Jr., respondent, argued the cause pro se.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Robert H. Royer, Jr., of Abilene, an attorney admitted to the practice of law in Kansas.

Complaints filed against the respondent alleged that the respondent violated KRPC 4.3 (2002 Kan. Ct. R. Annot. 429) (dealing with unrepresented person); KRPC 4.4 (2002 Kan. Ct. R. Annot. 430) (respect for rights of third persons); KRPC 8.1 (2002 Kan. Ct. R. Annot. 445) (bar admission and disciplinary matters); and KRPC 8.4 (2002 Kan. Ct. R. Annot. 449) (misconduct).

A disciplinary panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2002 Kan. Ct. R. Annot. 260). The office of the Disciplinary Administrator appeared by and through Stanton A. Hazlett, Disciplinary Administrator. The respondent, Robert H. Royer, Jr., appeared in person and by and through his attorney, Ann L. Hoover.

Based upon clear and convincing evidence, the panel made the following findings of fact and conclusions of law.

"Findings of Fact

"1. Robert H. Royer . . . is an attorney at law. . . The Respondent was admitted to the practice of law in the state of Kansas on April 13, 1976. The Respondent is the municipal judge for the city of Abilene. Additionally, the Respondent is engaged in the private practice of law.

"2. On May 29, 1999, a severe storm passed through Abilene, Kansas, causing damage to two adjoining buildings—the Plaza Theater building and the JC Penney building.

"3. At the time of the storm, the Penney building was owned by Raymond D. Shanahan, subject to a mortgage held by Wayne R. and Karin K. Ward. The Respondent represented Mr. and Mrs. Ward.

"4. On June 23, 1999, the Respondent wrote to counsel for Mr. Shanahan regarding the damage sustained to the building. Neither Mr. Shanahan nor his counsel took any action in response to the Respondent's letter.

"5. During mid-July, 1999, the owners of the Theater building hired a company to demolish it. During the demolition, the Penney building was damaged further.

"6. On July 16, 1999, the Respondent wrote to counsel for the owners of the Theater building and the attorney for the city of Abilene. In the letter, the Respondent stated:

`I shared with him that there may be questions concerning the structural integrity of the building . . . .

`If in fact there is major structural damage to the wall that adjoins the Penney's building, it would be in everybody's best interest to know what insurance companies may be involved in resolving the situation.'

"7. On July 29, 1999, the Respondent wrote to the State Farm Insurance Company. In the letter, the Respondent stated:

`Significant structural damage did occur to the west wall of the building on the evening of Monday, July 26, 1999. As a result of demolition activities that evening and on through the next forty-eight hours, substantially the entire west wall of the insured structured [sic] has been opened, exposing all three floors. This has created a cavernous opening approximately 40 feet by 65 feet, which does need to be rebuilt and closed in. There also was structural damage to the north and south wall, and some internal damage caused from water leaks in connection with this demolition activity.'

"8. On behalf of Mr. and Mrs. Ward, the Respondent instituted mortgage foreclosure proceedings against Mr. Shanahan . . .

"9. On October 21, 1999, Monty Prescott of BG Consultants, Inc., examined the Penney building. Thereafter, Mr. Prescott prepared a letter regarding his preliminary findings. Mr. Prescott estimated the probable cost to repair the building to be between $143,500 and $173,500. Mr. Prescott strongly questioned whether the building should be repaired rather than demolished.

"10. On December 6, 1999, the Respondent wrote to counsel for Mr. Shanahan. The concluding paragraph provided as follows:

`Please keep in mind the City of Abilene is also becoming concerned about the building as the street is still partially blocked, and they have questions about the structural stability of the building if we get a heavy snow load on the roof. I am in a bit of an awkward position here as I serve as judge for the city and if a violation of building code arises, it will be in my court that it will be filed.'

"11. On December 10, 1999, the attorney for the city of Abilene wrote to counsel for Mr. Shanahan. The letter provided:

`In speaking with local attorney Mr. Hank Royer, he has advised that there are discussions underway to determine what should be done with the building. It is my understanding that the options being considered are constructing a permanent west wall or demolishing the building. . . .

`The City is requesting that action be taken by the owner to resolve this matter as soon as possible.'

According to the letter, a copy was sent to the Respondent.

"12. On January 6, 2000, a claims specialist from the State Farm Insurance Company forwarded a payment to Mr. Shanahan. Based upon an appraisal and an estimate for repairs, State Farm agreed to pay $141,260, less the $2,000 deductible. State Farm forwarded a check in the amount of $99,260 to Mr. Shanahan. State Farm retained $40,000 for the engineering and construction management fees. State Farm agreed to pay the $40,000 when the restoration began.

"13. On February 17, 2000, Mr. Shanahan transferred the ownership of the property back to the Respondent's clients, Mr. and Mrs. Ward. Mr. Shanahan paid Mr. and Mrs. Ward the settlement monies received from State Farm, less $5,000.00.

"14. On February 22, 2000, the Respondent and counsel for Mr. Shanahan filed a joint motion to dismiss the foreclosure proceeding. Thereafter, the Court dismissed the action.

"15. On March 15, 2000, the Respondent wrote to Mr. Ward regarding the Penney building. Specifically, the letter provided:

`I again got a call from the City Manager concerning the Penney's Building on Tuesday. Neighbors, particularly Tim Geske to the south, are complaining about its condition and the appearance of the neighborhood.

`After our brief meeting at the bank last week, I did call Tim Elliott to see if he would look at the property and give you a bid to put the wall back in. He said it was a bigger project than he wanted to handle. I mentioned that Jerry Hawks did not give an optimistic indication when last I saw him and briefly mentioned the property.

`It is my impression that the city would like to see some movement on the property. . . . In reality, I expect the city is going to want to see some movement on the property or they may have to review it from their perspective.

`When we arranged this procedure, we did understand you would find someone to either buy and/or take the building and restore it, and that we wouldn't see it becoming a burden on the city. . . . Perhaps contacts with one of these groups offering the building at a nominal price or even offering to give it away as a prize to those with the most creative use plan for the building, might be an expeditious way of getting it into someone's hands who might be interested in restoring it.'

"16. On March 29, 2000, the attorney for the city of Abilene wrote to Mr. Ward requesting that he update the city regarding his plans for the Penney building. Specifically, the attorney requested that Mr. Ward advise the city of his `construction plans, sale plans, demolition plans, etc.' Additionally, the attorney asked Mr. Ward to forward any information in Mr. Ward's possession that the building had `not lost its structural integrity.' The attorney asked Mr. Ward to respond within fifteen days. Mr. Ward did not respond to the attorney's letter.

Id. Prior to writing to Mr. Ward, the attorney for the city of Abilene contacted the Respondent. The Respondent informed the attorney for the city of Abilene that he no longer represented Mr. Ward regarding the Penney building and that the attorney for the city of Abilene should contact Mr. Ward directly. However, in June, 2000, the Respondent resumed advising and assisting Mr. Ward regarding the Penney building.

"17. On April 26, 2000, the inspector for the city of Abilene inspected the exterior of the Penney building. Based upon his inspection, the inspector concluded that the building was an unsafe and dangerous building.

"18. On May 2, 2000, the attorney for the city of Abilene wrote to Mr. Ward, enclosed a pending city resolution, and informed Mr. Ward that a hearing would be held on June 26, 2000. The attorney for the city of Abilene informed Mr. Ward that he should appear at the meeting as owner of the building and `show cause why the building should not be condemned, ordered repaired, or demolished.'

"19. On May 15, 2000, the governing body of the city of Abilene passed the show cause resolution and scheduled a hearing for June 26, 2000.

"20. On June 7, 2000, Mr. Ward contacted the Respondent and discussed the Penney building. Mr. Ward informed the Respondent that he wanted to be rid of the property. The Respondent told Mr. Ward that he would approach a man, named Everett P. Mongerson, Jr., to see if he would be interested in purchasing the building.

"21. Mr. Mongerson was well known in Abilene, Kansas. The Respondent first met Mr. Mongerson in school as a child. The Respondent and his wife, Jo Ann Royer, were familiar with Mr. Mongerson and his personal situation.

"22. Mr. Mongerson was an alcoholic, frequently intoxicated, frequently homeless, did not have a bank account, and, during the majority of his adult life, unemployed. Mr. Mongerson had never

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