Posts Tagged ‘Luckert opinion’

Decision: State v. Gonzales

August 13, 2009

July 24th. The Kansas Supreme Court has issued its opinion in State v. Gonzales (No. 99,657) a child sex abuse case. In a unanimous opinion, written by Justice Marla Luckert the Court affirmed Gerald Gonzales’ convictions for aggravated indecent liberties with a child, rejecting his complaint of ineffective assistance of counsel. However, the Court vacated his Jessica’s Law sentence on the grounds that the jury was not asked to find that the state had proven beyond a reasonable doubt that Gonzales was over 18 at the time the crimes were committed.

Gerald Gonzales repeatedly forced his girlfriend’s daughters (aged 14 and below) into performing sex acts with him. He was arrested and convicted on multiple counts. During the trial he had disagreements with his lawyer and sought a retrial on the grounds of ineffective assistance of counsel. The Trial Court rejected that, finding that his attorney’s performance was acceptable. On appeal he re-argued this matter as well as seeking to have his life without parole for 25 years sentence vacated on the grounds that his age (a factor in sentencing) was not presented to the jury for a finding.

The Court upheld the District Court’s denial of Gonzales’ ineffective assistance claim, after reviewing the detail of what appeared to be a workaday dispute between a defendant and his lawyer. It also upheld Gonzales’ convictions, since his date of birth had appeared on the charging sheet.

However, citing its recent decision in State v. Bello, the Court vacated  Gonzales’ sentence. It found that under Apprendi, the fact that Gonzales was over 18 was an element of the crime and therefore a matter for the jury to determine. Therefore Gonzales’ case was remanded for re-sentencing where he will receive a lesser sentence.

Analysis: It is becoming clear that a significant number of Jessica’s Law sentences in Kansas are going to be vacated as a result of the State v. Bello decision (how many depends on whether DA’s have included the defendants ages in evidence presented to juries, something many will not have done since it is usually obvious that a given child molester is over 18). The whole Apprendi regime hangs by a thread, however, and some have suggested that newly confirmed Justice Sonia Sotomayor may side with those who would overturn it. The Jessica’s Law cases that bubble up in the coming months may well present a good vehicle for such a challenge in which an obviously over-18 criminal is let off lightly because their age was not presented as something for the Jury to rule on. This blog will monitor the United States Supreme Court docket for signs of a certiorari petition by the State of Kansas. The United States Supreme Court has twice reversed the Kansas Supreme Court in criminal cases in recent years.


Decision: In re C.P.W.

August 10, 2009

July 24th. The Kansas Supreme Court has issued its opinion in the case of In re C.P.W. (No. 101,017) a State appeal against an interpretation of law arising from a juvenile prosecution for a sex-offender’s failure to register at their Sheriff’s office. In a unanimous opinion, written by Justice Marla Luckert, the Kansas Supreme Court held that contrary to a ruling in District Court failing to register is not a crime of specific intent, and therefore the State only needs to prove that the defendant intended to break the law in such cases. Note: The District Court in this case acquitted C.P.W., and therefore though the State appealed the ruling for the purposes of precedent the Supreme Court’s decision does not affect them at this time.

C.P.W. failed to attend the local Sheriff’s office for registration after his birthday as required by the Kansas Offender Registration Act (KORA). At the time, sex-offenders like C.P.W. (who had been convicted of aggravated indecent solicitation of a child under age 14), had to register twice annually to have their information updated. The law now requires a thrice annual registration. However, at the time of the offense in question the law had only just changed to require the registration at a County Sheriff’s office rather than through the KBI in writing. C.P.W. did not attend. The District Court found that this crime was a specific intent crime and acquitted C.P.W. The State appealed to ask the Kansas Supreme Court to rule that this was not a correct interpretation of the law since the issue might arise again and a ruling from the Supreme Court would be a definitive precedent.

The Kansas Supreme Court agreed to take the case and ruled for the State. Henceforth, this crime should not be seen as one requiring specific intent. To understand what this means, one must review the levels of intent. In Kansas Law there are three levels of intent relevant to criminal activity:

Strict liability
– the conduct is prohibited even if the participant had no intent to break the law. The State made an attempt to suggest that this crime is one of Strict Liability, but the Court rejected that.

General intent – the accused need only be shown to have formed an intent to do something that was prohibited by law. There is no burden on the State to prove a further specific element of intent.

Specific intent – the accused must be shown to have intended to break the law and intended to do something specific that was illegal.

The District Court had ruled for the third of these. The Kansas Supreme Court held for the second – general intent.

Decision: State v. White

July 17, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. White (No. 100,264), a motion to withdraw a plea. In a unanimous opinion, written by Justice Marla Luckert, the Court held that (contra the District Court’s ruling) Harry White had rebutted the presumption that he had received effective assistance from his lawyer. The Case was therefore remanded for further fact finding as to whether he would be able to withdraw his no-contest plea to aggravated indecent liberties with a child under the age of 14.

Harry White sexually abused three girls many times over a period of years spanning the introduction of Jessica’s Law. He was charged with 8 counts relating to that conduct, including one under Jessica’s Law. Prior to trial, White entered into a plea agreement that he would plead to the Jessica’s Law charge and the others would be dropped. White was 69 years old at the time he was charged.

White’s plea agreement incorrectly stated that the maximum sentence he could receive would be one of not less than 25 years in prison. In fact his maximum sentence would be life, without the possibility of parole for 25 years. Prior to sentencing, White appears to have figured out that he reaped no net benefit from having the other 7 charges dismissed and sought to withdraw his plea.

His argument was that the plea agreement was incorrect and therefore he received ineffective assistance of counsel and did not knowingly make the plea. The District Court rejected his motion, finding that the plea agreement was clear (in terms of the potential consequences for White, i.e. that he would die in prison) and stated that during the enactment of the plea agreement the Court had correctly reviewed it with White (which can correct an error in a written agreement).

The Kansas Supreme Court reversed the District Court on this point. It found that the plea agreement was not clear, and that the transcript of the proceeding reviewing the plea agreement included a potentially misleading statement by the Judge which White might have misinterpreted to mean he would be eligible for probation.

Therefore, the District Court’s ruling on the motion to withdraw the plea was reversed and the case remanded back to the District Court to consider the remaining parts of the test for ineffective assistance of counsel, and a determination whether White’s plea may be withdrawn.

Decision: State v. Salas

July 17, 2009

July 10th. The Kansas Supreme Court has issued its opinion in the case of State v. Salas (No. 99,830) concerning post-conviction DNA testing for certain kinds murderers. In a unanimous decision, written by Justice Marla Luckert, the Court held that second-degree murderers do not have a right to post-conviction DNA testing under a statute which grants access to the testing to first degree murderers and rapists.

Abel Salas was convicted of intentional second-degree murder for the shooting death of Tracie Simon. Salas was acquitted of premeditated first degree murder. K.S.A. 21-2512 allows anyone convicted of first-degree murder, felony murder or rape to petition the court for DNA testing of forensic evidence from the crime scene. In State v. Denney (2004) the Kansas Supreme Court held that the statute which does this broke the Equal Protection Clause of the 14th Amendment to the United States Constitution by not extending this DNA testing right to those convicted of aggravated criminal sodomy, on the grounds that the elements of that crime and rape are substantially the same (differing only in terms of which body part is violated). Salas argued that this precedent should therefore apply to murder cases and entitle him to request DNA testing of evidence from the crime scene of his victim, just as if he had been convicted of first-degree murder.

The Court disagreed and rejected Salas’ argument. Essentially the ruling boils down to a comparison of this this case with Denney. In that case the Court had held that the crimes of aggravated criminal sodomy and rape were so similar that allowing rapists to petition for DNA testing while not allowing [aggravated criminal] sodomites to do so violated the Equal Protection rights of the latter. The elements of the two crimes were the same, the only reason he was charged with aggravated criminal sodomy and not rape was because of where he had violated his victim’s person. Salas was seeking to argue that first and second degree murder were essentially the same, differing only in the matter of premeditation. The Court took the view that this was true, and for that reason the two crimes were substantially different. That premeditation was the key element of the crime that separated first and second degree murder and therefore those convicted of one could be distinguished from those convicted of the other without causing Equal Protection issues.

It should be noted that the Court limited its ruling by emphasizing that under existing United States Supreme Court precedent the Equal Protection argument must be driven by the argument made by the person bringing the challenge. Therefore the court limited itself to the arguments which Salas had brought up.

Opinion: Honestly, this opinion is not terribly convincing. There is nothing in it that truly says why the facts of Denney warranted an Equal Protection challenge, but those of this case do not. Both cases hinge on a subjective decision as to how similar the elements of two crimes are. The truism that Second Degree Murder is not the same as First Degree Murder because of the differences between the two crimes definition, could equally be applied to the crimes in Denney. It almost reads as if in Denney the Court saw a law that should have been written to apply to both offenses and reached for the sledgehammer of the 14th Amendment to make it so. Having done so, it now must back away from that ruling lest it unleash mayhem in other areas where different crimes have differing elements that overlap closely.

Decision: State v. Phillips

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in the consolidated cases of State v. Phillips (No. 96,754) and State v. Wenzel (No. 97,548). In a unanimous opinion, written by Justice Marla Luckert, the Court held that Court Docketing Fees and Bureau of Indigent Services (BIDS) costs which can be assessed against criminal defendents in the event of a guilty verdict, do not form part of the judgement and therefore do not have to be read in open court.

The cases concerned Robert Phillips and Alan Wenzel who were convicted and had these costs imposed against them, but without the judge referring to them at sentencing. Both men appealed to the Court of Appeals and the Court of Appeals (separately) ruled that the fees were not punitive and therefore not covered by the requirement that a judgement is void if it is not pronounced in the presence of the defendant. The BIDS fee is assessed based on the ability of the defendant to pay as determined at the time the defendant applies for a public defender. In Wenzel’s case the Court record did not reflect whether the judge at that time had made a determination whether to waive the fee or not. Therefore that part of that case was remanded to the District Court for fact-finding.

The Kansas Supreme Court upheld both Court of Appeals decisions, arriving at the same result. In addition it noted that this distinction of fees from punitive measures is also supported by a Statute which explicitly allows the Court to issue notice of them to defendants via a statement. However, the Court did urge Judges to announce these fees along with sentences anyway.

Decision: Frick v. City of Salina

June 11, 2009

June 5th. The Kansas Supreme Court has issued its opinion in Frick v. City of Salina (No. 99,791) a case concerning relocation benefits to businesses following a taking under eminent domain. In a nearly unanimous decision, written by Justice Marla Luckert, the Court held that Ben and Lavelle Frick were entitled to a new review in District Court of the record of the administrative proceeding that had awarded them a certain amount of benefits. The District Court had previously held that its review would only be based on whether the administrative procedure’s decisions could be upheld as a matter of law. Justice Johnson concurred in the result, but criticized the Court for not holding that the new trial would simply be a completely new review, with the Fricks able to bring new witnesses and introduce new evidence. No Justices dissented from the decision. Note: Former Chief Justice Kay McFarland and Justice Lawton Nuss took no part in the decision. Their places were filled by Judge Stephen Hill of the Court of Appeals and Senior Judge Edward Larson.

The background to the case was a public works project involving the City of Salina and KDOT with the City as the principal on the project. In order to complete the project it was necessary to take some retail property from the Fricks. There was a separate eminent domain dispute concerning the compensation for this which has been mutually settled. Under the terms of Kansas Law (in turn implementing a Federal requirement) in cases such as this, businesses which are forced to relocate are required to receive compensations for relocation costs. These costs were assessed by an independent examiner who awarded some money to the Fricks. The Fricks sought to appeal to the District Court where the statute governing such decisions stated they were entitled to trial de novo of the issue. The Court held that it was able to review the record of the examiner but not make new findings, and upheld the awards as supported in law.

The Kansas Supreme Court reversed the District Court and ordered a new hearing. In reaching that decision, it made two principal rulings. The first was that the terms of the Kansas Act for Judicial Review and the Civil Enforcement of Agency Actions and related Federal acts did not apply to this case, since the City of Salina was taking the title to the property and municipalities are excluded from that act. As a result, the rules laid down there governing administrative appeals did not apply.

The second decision made by the Court held that since the function of the examiner in this case was a largely judicial one (weighing claims and deciding upon damages) the District Court could perform a new trial without offending the separation of powers doctrine. However, because a record would have already been created and the statute framed the new trial as an appeal the new trial would only be based on evidence submitted to the examiner and would not allow the Fricks to bring new witnesses or information. The District Court had therefore erred in using too strict a standard and the case was remanded there to be reconsidered with the District Court forming new fact findings and interpretations of the evidence collected by the examiner.

Justice Lee Johnson issued a forceful concurrence. He felt that the Court was creating ambiguity by not construing de novo to plainly mean a new trial, with all the attributes (witnesses, evidence etc) one would expect of one. He accepted that where there could be separation of powers issues involved (e.g. the Legislature ordering a Judical body to carry out an Executive duty) the Court could not follow the words of the statute, but since in this scenario this was not the case he thought that the Legislature should be able to specify where a new trial was required and where an appeal process was required. His concurrence cites Justice Luckert’s decision in State v. Marsh for support. [Note: State v. Marsh was a capital case in which the Kansas Supreme Court’s ultimate decision striking down the death penalty was overturned by the United States Supreme Court. However the reasoning Johnson cites was not part of the decision that the U.S. Supreme Court took issue with, and therefore remains valid].

Decision: Williams v. Lawton

June 5, 2009

May 29th. The Kansas Supreme Court has issued its opinion in Williams v. Lawton (No. 97,132), an interlocutory appeal from the order of a new trial in a medical malpractice case. In a unanimous decision, written by Justice Marla Luckert, the Court held that under the facts of this case the interlocutory appeal was acceptable, that the District Court did not err in awarding a new trial after information surfaced of jury misconduct and that the prosecution was justified in using its expert witness despite his being retired at the time of the underlying incident taking place.

The case stems from an adult circumcision which Dr Steve Lawton performed on Richard Williams. After complications, Williams sued alleging malpractice. Williams introduced expert witness testimony in support of his case from Dr Philip Diggdon. Lawton objected to Diggdon’s testimony on the grounds that Diggdon was retired at the time of the incident and that Kansas law governing expert witnesses in medical malpractice cases states that “no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident…is devoted to actual clinical practice”. The District Court rejected this argument and allowed Diggdon to testify. The jury returned a verdict, finding the majority of the culpability lay with Lawton and awarding a total of $1.9m in damages.

After the case, Lawton’s counsel interviewed some jurors and discovered a claim that the jury had disregarded their instructions and agreed to award an average of the dollar amounts that each individual thought was right. If true, this would be an impermissible quotient verdict. Lawton brought this to the attention of the Court and the District Judge took testimony from other jurors, and made a determination that a quotient verdict had been delivered, and therefore ordered a new trial. He also certified his rulings for an interlocutory appeal to the Court of Appeals. The Court of Appeals took the questions and reversed the District Court finding fault in the way the Judge had interacted with the Jurors. Lawton then appealed to the Supreme Court.

Before the Supreme Court there were three main issues (though there is a lot of detail in the opinion regarding the procedural posture of the case, which is relevant to anyone examining Kansas Law on interlocutory appeals).

1. Was the interlocutory appeal appropriate and should the Court of Appeals have taken it?

The Court held that it was not an abuse of discretion for the interlocutory appeal to be certified or for the Court of Appeals to rule on it. While discouraged the appeal in this instance promoted judicial economy since it might prevent the need for a new trial. The Court also held that it was appropriate to consider all the questions which had come up in the appeal since they were heavily interconnected with the underlying issue of whether a new trial was needed.

2. Did the District Judge err in his questioning of the jurors?

After dispensing with a procedural argument that the District Court could not by itself recall the jurors to investigate the misconduct claim (since the Defence Counsel moved an oral motion to do this anyway after the judge suggested it), the Court held that the Judge’s questions were allowed. In this it reversed the Court of Appeals which had held that the Judge’s questions of the jurors had extended into the impermissible area of the jury’s thought processes. The key finding in the case was that the jurors had agreed to be bound by an average of their suggested damages. This was not permitted and was not a matter of their mental processes but simply an agreement within the jury room and thus constituted sufficient misconduct for the Judge to order a new trial.

3. Was Dr Diggdon’s testimony permitted?

The Court held that Dr Diggdon’s testimony was allowed. The key to whether an expert witness qualified under the statute was whether in the two-year period prior to the incident 50% of their time had been devoted to clinical practice. Lawton had argued that the ratio had to hold all the way up to the time of the incident, rather than be an average over the preceding two years. The Court held that the Statute was clear that Lawton’s contention was wrong here.

As a result, the case will proceed to a new trial under basically the same conditions as the first.

Decision: State v. Valladarez

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Valladarez (No 99,724). In a unanimous decision, written by Justice Marla Luckert, the Court held that a District Magistrate Judge can perform a felony arraignment, including informing the defendant of the implications of a guilty plea, provided that Magistrates in that District have been assigned this power by the Chief Judge of the District. In this case, there being no evidence either way about this assignment the case was remanded to the District Court to ascertain if the assignment of this authority had been properly made.

In 2007 Aaron Valladarez was charged in Ford County with sale of methamphetamine and possession of methamphetamine. At a preliminary hearing before a District Magistrate Judge the State offered a deal: plead guilty or nolo contendere to the charges and the sale of meth one would be replaced with a second possession charge (possession being a lesser felony). Valladarez accepted the deal and the Magistrate converted the hearing into an arraignment. Valladarez pled no contest and subsequently at a District Court sentencing hearing was given two concurrent 28 month sentences.

Valladarez appealed citing two conflicting aspects of Kansas Law governing Magistrates and arraignments, as well as longstanding precedents from the 1970s and earlier. The old cases and a general statute block Magistrates from presiding over most felony arraignments. However, another statute gives them the right to do so if the Chief Judge of the Judicial District has authorized them to. Generally, when two statutes conflict the more specific one is controlling, but the Court is to read them in such a way as to harmonize them. In this case, what happened was that in the 1990s the Legislature amended the law to allow Magistrates to handle arraignments for efficiency reasons. Therefore the Court rejected the notion that the Magistrate was not permitted to arraign Valladarez.

As a second argument, Valladarez also argued that even if the Magistrates could preside over an arraignment, they could not have been granted the authority to preside over the process of accepting a guilty (or no contest) plea since this requires a judgement as to whether the plea was acceptable. Valladarez argued that this was the realm of the District Judge. The Court also rejected this argument, noting that while the law did not specify one way or the other, the process of arraignment contained the process of accepting a plea and to allow a delay between the defendant entering a plea and the Court acting upon whether that plea was a valid one would actually harm the defendant’s Due Process rights.

Procedurally this case is somewhat odd. Generally appellate claims may only be raised if the matter they cover was raised in District Court, however if the claim concerns the jurisdiction of the Court that heard the case the claim can be raised at any point. (This is based on the idea that jurisdiction is an absolute – either it exists or it does not and there is nothing a party to a case can do to create or destroy it). For this reason the Kansas Supreme Court heard this case. However, the Statute which the Court relied on to reject Valladarez’ claims required some form of official decision within the Judicial District that would enable Magistrates to handle arraignments. There was no evidence in the case record that this had happened, so the case was remanded back to the District Court to determine whether this had in fact been done. The District Court was instructed that if it had been done then Valladarez’ felony convictions will stand, but that if it had not been done they will not. The opinion also made a point to put Chief Judges on notice to ensure that if this procedure was in use in their District to ensure that their administrative orders properly covered this process.

The Court also heard a claim from Valladarez that since the sentencing Judge had omitted to ask him a question about whether he had any reason to believe that he could not be sentenced, his sentence was invalid. The Court found that this check is required by law, and that the Judge had erred in not asking it. However the Court also found that the error was harmless: Valladarez would have received the same sentence anyway.

Decision: Nelson v. Nelson

April 23, 2009

April 17th. The Kansas Supreme Court has issued its opinion in Albert H. Nelson III and Markeyta Nelson Dewey v. Doris H. Nelson (No. 97,664), a case brought by a pair of adult children against their stepmother for their late father’s failure to abide by the terms of his divorce settlement in drawing his will. In a unanimous opinion, written by Justice Luckert, the Court found that the claim which was brought was for a breach of contract by the late Albert H. Nelson Jr and that it was not filed in time to avoid being barred by the Kansas nonclaim statute. In the course of the ruling the Court also overrules one line of its precedents and determines that constructive trusts do not require fraud be shown in order to be created.

In 1975 Albert Nelson Jr and his wife divorced. Under the terms of the divorce settlement he was to leave his entire estate to his two children. In 1978 Nelson remarried and structured his affairs in such a way that almost all his property was held in two trusts or in his new wife’s name (Doris). One trust was to ultimately benefit his children, but on their deaths to bequeath the assets to Oklahoma State and Wichita State Universities. The other was to benefit OSU and WSU after the death of Doris. Mr Nelson died in 2003 and this case was brought by his children to assert that a constructive trust existed which meant that the trusts he had funded should return the assets to the children under the terms of the 1975 divorce settlement.

The District Court and the Court of Appeals rejected this argument, finding that the case which had been brought did not show constructive fraud to have taken place, and that therefore under established precedent of the Kansas Supreme Court a constructive trust could not have been created. The Kansas Supreme Court agreed in part, finding that the Albert (III) and Markeyta had not shown that their action was one for constructive fraud, rather they were bringing an action for breach of contract, which ultimately was against Albert (Jr)’s estate, not his trusts.

However, the Court went on to investigate whether the rule in Kansas that a constructive trust could only be created where constructive fraud was shown was valid. After reviewing the case law it concluded that it was not, finding that there were two lines of cases, a recent one which asserted this principle and an older one which took a broader view. The older cases were from a time when contracts to include someone in a will were common and therefore there were more cases regarding them. The modern cases were based around constructive fraud claims, however there was not reason to limit the law this way and therefore that part of precedent was overturned.

As a result of this, the Court considered whether the claim could therefore be brought that a constructive trust existed. It found that it could not because it had not been brought in a timely manner under the Kansas nonclaim statute which sets time limits on actions such as these to allow probate to conclude with finality. While an exception exists to this statute for tort claims, the Court ruled that that exception did not apply in this case since this was essentially a contracts case (breach of the 1975 divorce settlement). Therefore the claim was time barred and the lower courts’ decisions were upheld.

Decision: Estate of Draper v. Bank of America

April 17, 2009

April 17th. The Kansas Supreme Court has issued its opinion in Estate of Draper v. Bank of America (No. 96,060), a probate case. In a unanimous decision, written by Justice Luckert the Court ruled against First Christian Church of Olathe, two private individuals, Olathe Medical Center and the American Cancer Society retaining the proceeds from two trusts created by the late Ethel Draper. The property conveyed in these trusts more properly belonged in Draper’s estate for the benefit of her stepson’s due to a 1967 antenuptial agreement. Notes: While named in the litigation the American Cancer Society and Olathe Medical Center had settled with the Estate out of court. Bank of America’s naming in the lawsuit stems from its position as trustee of one of the trusts at issue. The other trust involved is overseen by UMB Bank.

In 1967 Clark Draper married Ethel Catlin. They signed an antenuptial agreement which stated that while each brought separate assets to the marriage and would retain control over those assets independently, if Clark predeceased Ethel his assets would pass to her, and she would leave at least one quarter of her estate to each of Clark’s sons by a previous marriage. Clark died in 1977. In 1977 and 1982 Ethel created two irrevocable trusts from which she benefited during her lifetime, but which upon her death would transfer the benefits to those listed above. Ethel Draper died in 2002, leaving her entire estate of $10,000 to the three sons of Clark Draper, while the two trusts contained combined assets totalling around $1 million. Clark’s son Gerald, acting as executor of Ethel’s estate sued the two trusts, arguing that their creation was a breach of Ethel’s fiduciary obligation under the 1967 antenuptial agreement.

The Johnson County District Court issued a Summary Judgement in favor of the Estate. This was reversed by the Court of Appeals. In this decision the Kansas Supreme Court reverses the Court of Appeals, reinstating the District Court’s Summary Judgement.

The essence of the decision comes down to the determination that Ethel held the property under a Constructive Trust while she was alive, that was created by the 1967 antenuptial agreement. The transfer of the property into the two irrevocable trusts was therefore a constructive fraud (essentially a legal fiction, unbeknownst to the beneficiaries). To reach this conclusion the Court finds that Ethel had a Confidential Relationship with her husband (something which does not arise automatically just from marriage) because of the agreement – under Kansas law a Confidential Relationship arises when two spouses agree to write their wills in a manner co-ordinated between the two of them. The second part of the constructive fraud finding is that Ethel had a duty under the 1967 agreement, since she owed Clark a duty to carry out her part of the bargain in good faith, which she breached by divesting her estate of most of her assets through the two trusts.

The Court also cleared a path through a number of statutory rules regarding timing. It found for example that the statute which bars out of time claims against an Estate did not apply in this instance because the lawsuit was initiated as part of the process of marshaling the assets of the Estate (in spite of the fact that the Executor doing the marshaling was also a beneficiary), where that particular rule did not apply. A claim that the suit was barred under the statute of limitations regarding fraud (on the argument that the fraud took place in 1982) was rejected on the grounds that the terms of the antenuptial agreement were not actually breached until Ethel’s death in 2002.