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IN RE CROCKETT3/8/1996
This is an attorney discipline proceeding involving respondent Kenneth F. Crockett, an attorney licensed to practice law in Kansas, whose last registration address is in Topeka.
The complainants, Mr. and Mrs. Gerald Ashton, had entered into a contract for construction of a residence with Dean Miller Construction Company. There were cost and time overruns and allegations of poor and unfinished work. The Ashtons met with respondent on October 30, 1989, to discuss the construction problems. After additional meetings and telephone calls, the Ashtons retained respondent and paid a $500 retainer on December 6, 1989.
Respondent wrote a demand letter on December 18, 1989. On January 3, 1990, he toured the home with his clients and on January 9, 1990, he toured the home again with his clients and Miller and Miller's attorney, Greg Lee. In an exchange of letters, the parties attempted to negotiate final repairs and final payments, but this attempt failed.
On February 13, 1990, the construction company sued the Ashtons to foreclose its contractor's lien and recover $25,500 still unpaid on the contract. The mortgagor and additional subcontractors were named as additional defendants to require them to assert any claims in the matter. Respondent filed a timely answer and counter-claim asserting damages to the Ashtons of $35,000. Respondent promptly answered plaintiff's request for discovery and statement of monetary damages. In a letter dated April 4, 1990, Mr. Lee
suggested arbitration, which was later declined by the Ashtons. On April 16, 1990, a pretrial conference was held before the district judge. At that time a trial date of May 8, 1990, was set if no arbitration was conducted.
The parties appeared for trial on May 8, 1990. At that time, however, the judge took counsel into chambers and announced he had decided to attempt an alternative to trial. With the consent of counsel, a contractor was appointed to be the court's expert witness. The contractor was to inspect the home and note needed repairs, and Miller would have an opportunity to correct them. Unfortunately, none of this proceeding was recorded by the court or journalized by counsel. The procedure was attempted. Miller performed some of the repairs suggested by the contractor but not others. The Ashtons eventually refused to permit Miller access to their home to make repairs and elected to return to court.
In a December 10, 1990, letter decision, the district judge determined that all issues had been decided and no counterclaim was preserved when the contractor alternative was agreed to by the parties in May 1990. Respondent, without any documentation, disputed this ruling. The court's decision was journalized by plaintiff's counsel and filed on January 11, 1991.
Timely notice of appeal was filed by respondent on January 23, 1991, and the appeal was docketed on that date. On February 23, 1991, the Court of Appeals issued a show cause order pointing out that two additional defendants originally sued were not addressed in the decision letter or journal entry. Plaintiff's counsel prepared a new journal entry of dismissal with prejudice as to those parties. That journal entry was filed with the district court and the Court of Appeals on March 15, 1991.
On March 21, 1991, the Court of Appeals issued a second show cause order, stating the original appeal was prematurely filed and no timely notice of appeal from the March 15, 1991, journal entry had yet been filed. Respondent did not act on this notice. Rather, on April 3, 1991 (mailed March 19, 1991), he responded out of time to the first show cause order (which had been mooted by the March 15, 1991, journal en
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