DIVISION 14
JULIA MILLER, ) Plaintiff, ) ) vs. ) Case No. 98CV 334 ) FAHNESTOCK & CO. INC., et al. ) Defendants. ) _______________________________)
The above entitled matter comes before the court on Defendants' Fahnestock, Beeman and Wages' Motion for Summary Judgment. After careful consideration, the court grants in part and denies in part Defendants' Motion.
Statement of Uncontroverted Facts
1. Defendant Fahnestock is a registered broker-dealer under the Kansas Securities Act.
2. Defendant Fahnestock's Topeka branch is located at 534 South Kansas in Topeka.
3. Defendant Beeman has been the Branch Office Manager of Fahnestock's Topeka Branch Office for the last ten years.
4. Together, the Millers, including plaintiff on certain individual accounts, were customers of defendant Fahnestock from 1985 until September 1996.
5. Mr. Miller died on September 10, 1996.
6. Mr. Miller was very well known at the Topeka Branch Office because of his frequent visits to that location.
7. Mrs. Miller relied on her late husband's knowledge and experience in making decisions about her stocks and options.
8. After Mr. Miller died, plaintiff maintained her accounts at Fahnestock until December 11, 1997.
9. In October of 1985, defendant Fahnestock hired defendant Wages as an investment consultant in its Topeka Branch Office.
10. On May 1, 1996, defendant Wages quit defendant Fahnestock.
11. Prior to his resignation, defendant Wages had been the Millers' investment consultant at defendant Fahnestock.
12. Twice in 1991 and once in 1994, defendant Wages stole money from the Millers. The total amount of these thefts was $9,500.00.
13. Specifically, defendant Wages intercepted and forged the following checks:
a. check number 4432454, dated 1/17/91, in the amount of $2,000.00 payable to the Millers.
b. check number 4435627, dated 12/31/91, in the amount of $4,000.00 payable to the Millers.
c. check number 1343725, dated 7/11/94, in the amount of $3,500.00 payable to the Millers.
14. In total, defendant Wages stole $94,979.76 from fourteen different customers.
15. Defendant Wages pled guilty to criminal charges relating to these thefts and has been ordered to pay $97,353.07 in restitution to the victims. This includes repayment to plaintiff in the amount of $9,500.00 and $23,630.59 to defendant Fahnestock.
16. Defendant Fahnestock has since caused the restitution order to be modified such that its pro rata share will go to the other victims until such time as they are completely repaid.
17. Pursuant to the Order, defendant Wages made an initial payment of $3,000.00 to the court, and by agreement, is supposed to be paying the remainder in monthly payments of $500.00. 18. Plaintiff has been receiving periodic restitution checks under this order.
19. Defendant Wages committed these thefts by initiating fraudulent payout requests as to certain of the Millers' accounts and then intercepting the payout checks.
20. Defendant Wages intercepted the checks by physically taking them from the operations area at defendant Fahnestock's Topeka Branch Office.
21. Defendant Wages endorsed each check by forging the Millers' signatures and then depositing the funds into his personal account.
22. Defendant Wages testified in his deposition that he did not attempt to intercept or falsify the monthly account statements showing the checks had been drawn or otherwise attempt to cover up his theft. Plaintiff contends that she is unable to determine whether defendant Wages' statement is true or not because defendant Fahnestock & Co. has failed to provide certain documents.
23. Defendants assert that following his forgery of the $3,500.00 check in July of 1994, defendant Wages did not steal any more money from the Millers. It is the position of plaintiff that because defendants Fahnestock and Beeman have refused to provide the additional information requested by plaintiff, she cannot know for certain whether or not this was the last time defendant Wages stole money from them.
24. Defendant Fahnestock monitors the activities in all accounts, including the purchase and sale of securities, the crediting of interest and dividends, and the crediting and debiting of accounts when funds are either received in or drawn on, by wire or check.
25. Transactional information concerning the purchase and sale of securities and the crediting and debiting of accounts when funds are received in and/or drawn by wire or check is transmitted by each branch office to Fahnestock's corporate headquarters.
26. Defendant Fahnestock's corporate headquarters record and process all information concerning its customers accounts, which is printed on a data file.
27. The data file is then sent to an outside processing and mailing service which produces the print-image format for the customers' monthly account statements.
28. Defendants contend the monthly account statements are then mailed to all customers of record by the outside service. Plaintiff disputes this fact and alleges that she never received these monthly statements. Plaintiff contends she requested copies of all checks issued from all of her accounts on July 2, 1997, July 25, 1997 and again on October 23, 1997. On the last date she also requested copies of all of her account statements. Plaintiff asserts that none of the requests were ever answered, nor were any documents ever supplied. Defendant, however, asserts that plaintiff now has been provided with all documents requested.
29. The mailing of Fahnestock's monthly account statements is usually completed by the second or third business day of the following month, but in all cases by no later than the fifth business day.
30. It is defendants' position that each monthly account statement contains a clear description of the customer's portfolio positions and the daily activity that occurred in the account during the month. Information concerning any checks deposited to or drawn on the account, along with that month's closing balance is also provided. Plaintiff contends not only did she not receive the monthly account statements until defendants were forced through this litigation to turn them over, the statements showed little or no information. Plaintiff alleges that the statements merely show a check being issued without naming the payee or listing any other information as to the nature of the transaction.
31. The back page of monthly account statements contains provisions explaining various aspects of the customer's account, including the following language explaining the customer's obligation to notify defendant Fahnestock of any errors or omissions in the monthly account statement:
Errors or Omissions
Please notify us within ten business days if you believe there is any inaccuracy in any transaction or balance reflected on this statement. Please be sure to note your account number.
32. The Millers have lived at 3800 Northwest 37th Terrace, Topeka, Kansas, 66618, since 1977.
33. Defendant Fahnestock contends that the entire time the Millers were customers it regularly mailed their monthly account statements to their Topeka address. Plaintiff asserts that the account statements were never received and corroborates this through the testimony of her accountant, John Boos, who stated that when he went through plaintiff's records in 1997, some account statements were missing.
34. Defendants assert that as evidenced by his own handwritten calculations of deductible margin interest expense, Mr. Miller was well aware that he was trading on the margin prior to the filing of the Millers' 1992 Federal Income Tax Return. Plaintiff denies this allegation in as much as it asserts that Ira Miller knew that he was trading on the margin. Plaintiff contends that the documents merely indicate that there was interest expense being taken out.
35. Defendants assert that there can be no genuine question that the Millers received a 1994 monthly account statement for the period 12/1/94 through 12/31/94 which plaintiff provided to her accountant, John Boos, in October of 1997.
36. Defendants assert that on May 1, 1996, defendant Wages resigned as an investment consultant for Fahnestock and another investment consultant, Tim Woodcock, took over defendant Wages' accounts, including those of the Millers. Plaintiff contests this statement and objects to the affidavit of Tim Woodcock. Further, plaintiff requests that the said affidavit be stricken from the record since it was notarized by a witness in this case. Plaintiff alleges it is inadmissible since the notary, Terry Beeman, violated K.S.A. 53-109.
37. Defendants assert that during the first week of May 1996, Mr. Woodcock met personally with Mr. Miller in the Topeka Office and went over all of the Millers' accounts with him. Again, plaintiff objects to this statement on the grounds it must be stricken.
38. Defendants assert that during their meeting, Mr. Miller did not say anything about money missing from his accounts, nor did he ever mention that he had any problems or complaints about his account. Plaintiff again objects to the inclusion of statements from Mr. Woodcock' affidavit and further, alleges that the statements are inadmissible hearsay.
Motions for summary judgment are decided pursuant to K.S.A. 60-256, and will be granted if the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in the light most favorable to the plaintiff. Bacon v. Mercy Hospital at Fort Scott, 243 Kan. 303, 306 (1988). The moving party must prove that there is no genuine issue as to material facts; if factual issues do exist, they must be material to the case to preclude summary judgment. To oppose a motion for summary judgment, a party must come forward with something of evidentiary value to establish a material dispute of fact. Glenn v. Fleming, 247 Kan. 296, 799 P. 2d 79 (1990). A defendant is entitled to summary judgment if the defendant can establish there is an absence of evidence to support plaintiff's case. Crooks v. Greene, 12 Kan. App. 2d 62, 736 P. 2d 78 (1987).
In the present case, defendants allege that they are entitled to summary judgment because the statute of limitations bars recovery on all of plaintiff's claims based on the three checks forged by defendant Wages. Further, defendants assert that plaintiff's claims for negligent supervision, breach of fiduciary duty, conversion and "misrepresentation" rely almost entirely on defendant Wages' tortious conduct relating to the monies stolen by him and are barred by the statutory periods set forth in K.S.A. 60-513. Plaintiff asserts that all named defendants have waived the statute of limitations defense. With regard to defendant Wages, plaintiff contends that he waived any argument concerning the statute of limitations by pleading guilty to charges relating to the three forged checks, agreeing to pay restitution and not asserting any statute of limitations defense. Plaintiff further alleges that defendant Fahnestock waived its arguments regarding the statute of limitations by voluntarily agreeing in the criminal proceeding against defendant Wages that any payments due to Plaintiff should come before any payments to itself.
Finally, plaintiff alleges that even if there was no waiver, there is a dispute as to a material fact regarding notice.
". . . the cause of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of the injury becomes reasonably ascertainable to the injured party. . . " (Emphasis added)
It is apparent that the parties don't agree on when plaintiff could have reasonably ascertained that defendant Wages was stealing money from her and her late husband's joint account. Defendants argue that the losses incurred by the plaintiff were reasonably ascertainable upon plaintiff's receipt of the monthly account statement which showed that unauthorized checks had been drawn on their accounts. Plaintiff disputes this assertion and alleges that she never received these monthly statements. Further, plaintiff contends she requested copies of all checks issued from all of her accounts on July 2, 1997, July 25, 1997 and again on October 23, 1997. On the last date she also requested copies of all of her account statements. Plaintiff alleges that none of the requests were ever answered, nor were any documents ever supplied.
However, plaintiff's first argument is that both Wages and Fahnestock waived any applicable statute of limitations. Plaintiff cites no legal support and this court finds no legal support for plaintiff's argument regarding defendants' waiver of the statute of limitations. Therefore, this court finds there has been no waiver.
For plaintiff's second argument regarding statute of limitations, plaintiff simply contends that the statements were not received and therefore there was no notice.
The methods used by Fahnestock in their monthly accounting process and in mailing the monthly account statements are not in dispute. Mr. Wages asserted in his deposition that he did not intercept or falsify the account statements showing that three checks had been drawn on the Miller's account even though he did admit to circumventing Fahnestock's procedure, intercepting the three checks drawn on the Millers' account, and forging the Millers' signature. While plaintiff's contention that she did not receive all of the monthly account statements is very general and is not supplemented by other evidence except for John Boos' deposition testimony that in reviewing the Millers' records (in 1997 after defendants argue the statute of limitations had passed) he did find that some of the monthly account statements were missing, this court finds that there is a genuine issue of material fact with regard to notice. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in the light most favorable to the plaintiff. Bacon at 306.
Plaintiff also contends that if the statements were received, the format of the monthly account statement would not be sufficient to place plaintiff on notice that a theft had occurred. Plaintiff argues that each check listed contains no payee information and instead, merely shows a check number, amount, and that the check was issued.
Defendants assert that the monthly statements place plaintiff on inquiry notice. Defendants cite several cases from other jurisdictions to support their contention. In addition, defendants in a footnote cite Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 889 P.2d 130 (1995) in which the Kansas Supreme Court reversed the trial court's granting of summary judgment thereby rejecting the accrual of the action based on "inquiry notice." Defendants distinguish the case at hand from Kelly in that Kelly dealt with a complex prospectus and a short term relationship between the investors and the promoter. However, this court finds that whether or not the monthly account statement was adequate to place the plaintiffs on inquiry notice, given the circumstances and the format of the document, is a disputed factual issue for the jury.
Plaintiff also asserts that there was a fiduciary relationship between plaintiff and defendants and, therefore, under the continuous representation rule the statute of limitations is stayed until the fiduciary relationship has been terminated. Morrison v. Watkins, 20 Kan. App. 2d 411, 889 P.2d 140 (1995). Defendants dispute that there was a fiduciary relationship. (See court's analysis in Breach of Fiduciary Duty section in which the court finds that a question of material fact exists as to whether or not a fiduciary relationship existed.) Defendants, in addition, assert that even if there was a fiduciary relationship Morrison would not apply on these facts since there is no evidence to suggest that a continuation of the relationship would have allowed the parties to correct or remedy the consequences of the alleged tortious actions. However, this court finds that there is evidence to suggest that the Millers believed that a continuation of the relationship would allow the parties to correct or remedy the situation. Even after plaintiff actually became aware of the forged check problem, Mrs. Miller continued her relationship with Fahnestock until December 11, 1997. The court finds that this is a genuine issue of material fact.
As stated in Gilger v. Lee Construction, Inc., 14 Kan. App. 2d 679, ¶3, 798 P.2d 495 (1980), "summary judgment may be proper on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time the statute commenced to run. But, where the evidence is in dispute as to when a substantial injury first appears, or when it becomes reasonably ascertainable, the issue is for the determination of the trier of fact." See also Hecht v. First National Bank and Trust Co., 208 Kan. 84, 490 P.2d 649 (1971); Uhock v. Sleitweiler, 13 Kan. App. 2d. 621, 778 P. 2d 359 (1988). Based on the foregoing, the court denies Defendants' Motion for Summary Judgment as to the claims for negligent supervision, breach of fiduciary duty, conversion and "misrepresentation" on statute of limitation grounds under K.S.A. 60-513.
Next, defendants allege that not only is plaintiff's claim under the Kansas Consumer Protection Act barred by the statute of limitations period in K.S.A. 60-512, but that the Consumer Protection Act is inapplicable. Again, the court finds defendants argument as to the statute of limitations unavailing. Generally, under K.S.A. 60-512, a "cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his action to a successful conclusion." Johnston v. Farmers Alliance Mutual Insurance Company, 218 Kan. 543, 545 P. 2d 312 (1976). Under the same reasoning stated above, the court finds that there is a genuine issue of material fact regarding plaintiff's notice of the thefts.
However, the court concurs with defendants' argument that the Kansas Consumer Protection Act is inapplicable to the present action. "The Kansas Consumer Protection Act (K.S.A. 50-623, et seq.) applies to all consumer transactions. A consumer transaction is defined at K.S.A. 50-624(c) as 'a sale, lease, assignment or other disposition for value of property or services within the state (except insurance contracts and securities regulated under federal or state law)' . . ." Meyer v. Diesel Equipment Company, Inc., 1 Kan. App. 2d 574, ¶4, 570 P.2d 1374 (1977) (emphasis added). Further, in Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, ¶2, 601 P.2d 1100 (1979), the Kansas Supreme Court found that the Residential Landlord and Tenant Act was specific legislation which was complete within itself and that said act took precedence over the broad provisions of the Consumer Protection Act. In reaching this decision, the Court stated "it is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes . . . Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in the proper case." Id. ¶1. Finally, in drafting the provisions of the Consumer Protection Act, "the legislature felt that securities fraud is adequately dealt with in the Kansas Blue Sky Law (K.S.A. 17-1252 to 17-1725)." Kansas Comment, 1973 regarding K.S.A. 50-624. Based on the foregoing authority, the court finds that plaintiff should have brought this claim under K.S.A. 17-1252 et seq. Those sections specifically address plaintiff's claims, whereas the Kansas Consumer Protection Act only broadly addresses the claims. Therefore, the court grants in part Defendants' Motion for Summary Judgment, excluding plaintiff's claims under the Kansas Consumer Protection Act.
Next, defendants assert that summary judgment is proper on plaintiff's claims which are based on the alleged unauthorized sale of securities specifically three sales of stock and also alleged unauthorized margin transactions. Defendants allege that said transactions were authorized by plaintiff's late husband, Ira Miller. Citing to monthly account statements and various depositions, defendants contend that because it is uncontested that plaintiff relied on her late husband to make all decisions concerning their accounts, and because Mr. Miller allegedly authorized the transactions, there are no claims for unauthorized sale of securities or unauthorized transactions. Plaintiff alleges that because the argument centers around Mr. Miller and not plaintiff the argument should be denied. Plaintiff asserts that given the fact that plaintiff did not authorize the sales and that since she, and not her late husband, is the one bringing this action, the sales and other transactions were in fact unauthorized. Further, plaintiff testified in her deposition that she overheard Mr. Miller making statements that certain transactions were unauthorized. Defendants cite cases in which courts in other jurisdictions have found that brokers are not generally required to individually apprise co-owners of a joint account as to transactions of the other owner [Zimmerman v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 391 N.W. 2d 353, 356 (Mich. 1985)] and that a stockholder who turns over handling of affairs to another appoints the other as agent. [King Lumber Indus. v. Cain, 209 So. 2d 855, 847 (Miss. 1968)].
However, even though Mr. Miller may have been aware of the margin account trading, there has been no evidence that he approved each transaction which is a separate issue. Furthermore, the only evidence regarding the sale of AT&T and Genetech was Tim Woodcock's affidavit which plaintiff argues cannot be considered since it was notarized by Terry Beeman, a party in this action, in violation of K.S.A. 53-109. The court concurs and does not consider the affidavit since it is not admissible evidence. Therefore at the time the summary judgment motion was filed, there was no evidence to support defendant's contentions that the sale of AT&T and Genetech stock was authorized by Mr. Miller. Therefore, viewing the evidence in the light most favorable to the non-moving party, the court finds a question of material fact remains on the claims relating to unauthorized transactions and unauthorized sale of securities.
Defendants next assert that summary judgment is proper on plaintiff's claim for breach of fiduciary duty. Citing a case from the 10th circuit, defendants contend that under Kansas law, merely rendering investment advice is not sufficient to establish a fiduciary relationship in the absence of control. Hotmar v. Lowell H. Listrom & Co., Inc., 808 F.2d 1384, 1386-1387 (10th Cir. 1987). Defendants further contend that there is no evidence to support plaintiff's claim that the defendants, including Wages, exercised dominion or control over the investments or day-to-day management of the Millers' accounts. Supporting this conclusion, defendants assert that Mr. Miller took a personal interest in the accounts, monitoring them and making investment decisions regarding their accounts. Plaintiff contends that the evidence shows that defendants did exercise dominion and control over the accounts. Plaintiff further alleges that the evidence shows that she and her late husband were not suited for the types of investments that defendants used in servicing the Millers' accounts.
As established in Kansas, "the term 'fiduciary relationship' refers to any blood, business, friendship or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing confidence. . ." Hawkinson v. Bennett, 265 Kan. 564, 962 P.2d 445 (1998). There are two types of fiduciary relationships, those created by contract and those implied by law from the surrounding facts and the relationship of the parties. Daniel v. Army National Bank, 249 Kan. 654, 656, 822 P.2d 39 (1991).
Furthermore a fiduciary relationship requires confidence of one in another and a certain inequity or dependence arising from weakness of age, mental strength, business intelligence, knowledge of facts involved, or other conditions which gives one an advantage over the other. Olson v. Harshman, 233 Kan. 1055, Syl. ¶ 5, 668 P.2d 147 (1983). Further, "the determination of a fiduciary relationship is essentially a factual one." Dugan v. First National Bank in Wichita, 220 Kan. 201, ¶6, 606 P.2d 1009 (1980). In the present action, the 10th circuit case cited by defendants is not controlling. Even if it were, based upon the facts at hand, plaintiff has shown there to be a question of material fact as to whether defendants exercised control over the Millers' accounts and whether their account was discretionary or non-discretionary. In addition, there are factors in this case which point to a potential for inequity or a dependence in the relationship between Mr. Miller and Mr. Wages, ie. Mr. Miller's age and health condition and closeness in the relationship between the two. As with many of the other arguments set forth throughout defendants' motion, the issues in dispute require the weighing of evidence and assessing the credibility of that evidence by the jury. Therefore, the court finds that a question of material fact exists as to the issue of whether a fiduciary relationship existed.
Next, defendants allege and present argument that summary judgment is appropriate on plaintiff's misrepresentation claim. Because the plaintiff has failed to address this allegation in her own brief, the court finds that there are no material facts in dispute and therefore, summary judgment is proper as to the plaintiff's claims based on the issue of misrepresentation.
In addition, defendants allege that the allegations of plaintiff in Counts V through VII are without merit. The specified counts allege that the tortious actions of Fahnestock's employees were done in the scope of employment and thus should be imputed to defendant Fahnestock under the theory of respondeat superior. Defendants allege that in Kansas, an employer is responsible for its employee's tortious acts only if the acts are incidental to and done in furtherance of the business of the employer. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296, 1300 (1974). Defendants further rely on that opinion for the proposition that the actions of an employee which are "motivated entirely by personal reasons such as malice or spite or by a desire to accomplish some unlawful purpose and [do] not have for [their] purpose the furtherance of the employer's business, will be considered personal to the employee and as such will not make the employer answerable." Id. at 365, 520 P.2d at 1301-1302. As defendants assert, and this court agrees, defendant Wages' actions were motivated by purely personal reasons and as such cannot be held against defendant Fahnestock. Further, plaintiff offers no argument against this well settled standard in Kansas. Rather, plaintiff only argues that after learning of defendant Wages' actions, defendants Fahnestock and Beeman ratified said conduct. Plaintiff sets forth no evidence to support her contention and instead refers to the unsworn report of her expert stating his legal conclusions. On this basis, the court finds that defendants are correct in their assertion that defendant Fahnestock cannot be held liable for the actions of defendant Wages. Further, plaintiff fails to bring forth any evidence to show that a material fact is in dispute. Therefore, defendants' motion is granted as to the claims against defendant Fahnestock on the theory of vicarious liability.
Finally, defendants assert that summary judgement is appropriate with regard to plaintiff's claims of non-economic damages. Defendants allege that plaintiff cannot recover for non-economic damages unless she can show physical injury. In Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032, 1038 (1990), the Kansas Supreme Court stated that "this court has long held there can be no recovery for emotional distress caused by the negligence of another unless accompanied by or resulting in physical injury." (citations omitted). An exception to this rule is in situations of willful or wanton conduct. Fusaro v. First Family Mortg. Corp. Inc., 257 Kan. 794, 806, 897 P.2d 123, 131 (1995). Defendants assert that plaintiff has not presented any evidence to show that her emotional distress was accompanied by or resulted in physical injury. Plaintiff contends that since the thefts by Wages, she has been experiencing high levels of stress and had to be placed on medication by her physician because of the levels of stress. Plaintiff further alleges because the conduct of the defendants was willful, wanton and in breach of their fiduciary duties, she is allowed to present her claim for non-economic damages. While it is true that plaintiff can bring her claim for non-economic damages against defendant Wages because there is an issue for the jury regarding whether his actions constitute willful or wanton conduct, the court finds no issue of material fact in dispute which would allow her to present her non-economic damage claim against defendants Fahnestock and Beeman. Plaintiff has failed to bring forth any evidence which would establish that defendants Fahnestock's and Beeman's actions were willful or wanton and caused the stress related injuries. Plaintiff again only sets forth the legal conclusions of her expert as support. This being the case, the court finds, based on the well settled Kansas standard, that defendants Fahnestock and Beeman cannot be liable for non-economic damages because plaintiff has failed to show that the emotional distress allegedly caused by defendants Fahnestock and Beeman was accompanied by any type of physical injury nor was there evidence that the actions of defendants Fahnestock and Beeman were willful or wanton. Therefore, plaintiff is allowed to present her claim of non-economic damages as it relates to defendant Wages, but cannot bring said claim against defendants Fahnestock and Beeman.
In conclusion, based on the foregoing, the court denies Defendants' Motion for Summary Judgment as to the claims of unauthorized transactions and unauthorized sale of securities, negligent supervision, breach of fiduciary duty and conversion and grants the motion in favor of defendants as to the claims which relate to the Kansas Consumer Protection Act, misrepresentation and the vicarious liability of defendant Fahnestock. Further, the court grants defendants' motion on the issue of non-economic damages as it relates to defendants Fahnestock and Beeman but denies defendants' motion as it relates to defendant Wages.
For the reasons set forth above, the court denies in part and grants in part Defendants' Motion for Summary Judgment. The foregoing memorandum and order shall serve as the court's final entry of judgment, no further journal entry being required.
IT IS SO ORDERED.
Dated this day of , 2000.
__________________
Nancy Parrish
District Court Judge
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 4th day of August , 2000, to the following:
Dan E. Turner
801 SW Western Avenue
Topeka, Kansas 66606
Philip L. Turner
Jason P. Hoffman
112 West 7th
Garden Suite
Topeka, Kansas 66603
David M. Skeens
R. Keith Johnston
Michael J. Vaughan
2500 City Center Square
P.O. Box 26188
Kansas City, Missouri 64196
James G. Chappas
2035 SW Western, Suite 225
Topeka, Kansas 66604
________________________
Norma J. Dunnaway
Administrative Assistant