Kansas Supreme Court denies Petition for Review upholding deathbed adoptions by a sedated, congenitally retarded man, ignoring a fraud upon the adoption court committed by a disbarred attorney. (Appellate court more concerned about covering-up inaction and failings of the lower court than protecting defrauded heirs.)
On July 16, Frances M. Tihen, a cousin of LeRoy, filed a Petition in a Chapter 60 proceeding in the Sumner County District Court. Case No. 02-C-133, Tihen v. Winkelman. This Petition sought to challenge the deathbed adoptions on, among other things: (a) the lack of notice to LeRoy's guardian and heirs; and (b) that these two deathbed adoptions were the result of "undue influence and abuse of a confidential relationship."
On February 6, without any evidentiary hearing taking place, the trial court dismissed Tihen's Petition. This Petition was dismissed on procedural grounds, which included: (a) res judicata; (b) impermissible collateral attack; and (c) statute of limitations. However, a review of this decision shows that it was patently defective. (The two prior actions were dismissed without prejudice with Tihen being timely filed within 6-months of these cases.) Upon the dismissal of Tihen, the trial court, sua sponte, imposed a prefiling injunction barring any further efforts to challenge these adoptions.
On March 7, Tihen was appealed.
On July 15, not wanting his earlier decision reviewed, the trial judge in Tihen dismissed the appeal due to counsel's failure to docket the appeal within 21 days. Thus, no decision was ever reached on the merits of these deathbed adoptions. [The judge in Tihen thereafter filed an ethics complaint against Tihen counsel, relying upon, none other, the very attorney who had planned and procurred these two sham deathbed adoptions.]
On August 23, the two adopted adults filed a malicious prosecution suit against every known heir of LeRoy. While this lawsuit was dismised, two heirs, Carol V. Long and Mary Lou Quinn, each filed a counterclaim. These counterclaims sought to set aside the deathbed adoptions on the ground that a fraud had been committed on the adoption court. This fraud included the failure to apprize the adoption court of the existence of a multi-million dollar Trust, the failure to inform the adoption court that LeRoy was a congenitally retarded individual and the failure to notifiy the adoption court that a guardian ad litem had been appointed for LeRoy.
On March 29, three (3) years later, the trial court dismissed Long and Quinn's counterclaims. These counterclaims were dismissed on the basis that they were barred by the doctrine of "collateral stoppel." These claims were dismissed despite the fact that neither Long nor Quinn were a party to, or a participant of, nor had knowledge of the action filed by Tihen!
On April 17, Long and Quinn appealed this decision.
On April 27, during the pendency of their appeal, Paul Arabia, the attorney who planned, arranged and carried out these deathbed adoptions, was "disbarred" by the Kansas Supreme Court.in its Order of Disbarment, the Kansas Supreme Court noted that in a similar action, Arabia had failed to "inform the [ex parte] tribunal of all material facts known to the lawyer which [would] enable the tribunal to make an informed decision, whether or not the facts are adverse. "Immediately after Long and Quinn filed their appeal, Arabia moved to Mexico and is now beyond the reach of any court!
On September 21, the Kansas Court of Appeals entered a Memorandum Opinion.in its Memorandum Opinion, the Court of Appeals affirmed the trial court's holding that despite never having been a party to, a participant of, or having knowledge of Tihen, both Long and Quinn were bound by the trial court's rulings in Tihen.in addition, this appellate court held that in the absence of any independent duty owed to them, both Long and Quinn had failed to state a claim upon which relief could be granted.
On October 17, Long and Quinn filed a Petition for Review with the Kansas Supreme Court. This Petition was filed on the basis that neither Long nor Quinn (nor any of the 60 or so other heirs of LeRoy Chevraux) were ever afforded their "day in court" and that to apply collateral estoppel to Long and Quinn's counterclaims was a denial of "due process."
On April 28, the Kansas Supreme Court denied Long and Quinn's Petition for Review, upholding these two deathbed adoptions.in essence, the Kansa Supreme Court held that a fraud committed upon its own courts was permissible. The complete facts of the case can be found at: KansasJudicialWatch.com
0 comments