00287310-3

Case No. 116,456 (Consolidated with 117,079)

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE ESTATE

OF

EARL O. FIELD, DECEASED

BRIEF OF APPELLEE

FORT HAYS STATE UNIVERSITY FOUNDATION

Appeal from the District Court of Ellis County, Kansas

Honorable William F. Lyle, Jr., Assigned Judge

Honorable Jack L. Burr, Assigned Judge

District Court Case No. 13-PR-22

Coy M. Martin, S.C. No. 17104

BEVER DYE, LC

301 N. Main, Suite 600

Wichita, KS 67202-4806

Telephone: (316) 263-8294

Facsimile: (316) 263-3142

Email: cmartin@beverdye.com

Counsel for Fort Hays State University

Foundation

Oral Argument: 30 minutes

00287310-3 ii

Table of Contents

Statement of Issues……………………………………………………………………….1

Statement of Facts………………………………………………………………………..1

Arguments and Authorities……………………………………..…….………………..24

Issue I: The trial court correctly found that the Purported Codicil

was neither typed nor signed by Earl, and that Oborny did not prove due

execution in accordance with K.S.A. § 59-606…………………………………………24

A. Standards of Review…………………………………………………………..24

In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000)………….25, 26

In re Estate of Bolinder, 19 Kan.App.2d 72, 74, 864 P.2d 228,

rev. denied, 254 Kan. 1007 (1994)………………………………………………..25

In re Estate of Farr, 274 Kan. 51, 58, 61, 69-70, 49 P.3d 415 (2002)………..25, 26

In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998)……………….25

Cresto v. Cresto, 302 Kan. 820, 831, 835, 847-48, 358

P.3d 831 (2015)……………………………………………………………….25, 26

Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009)…………………25

K.S.A. § 59-606…………………………………………………………………...26

In re Estate of Rickabaugh, ____ Kan. ____, 390 P.3d 19,

29-30 (2017)………………………………………………………………………26

In re Estate of Grisell, 176 Kan. 209, 214, 270 P.2d 285 (1954)…………………26

Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, Syl. ¶¶ 1-5,

500 P.2d 39 (1972)………………………………………………………………..26

B. The trial court’s negative findings derive ample support from the

law and evidence………………………………………………………………26

Baird v. Shaffer, 101 Kan. 585, 587 168 P. 836 (1917)……………………………27

C. Oborny’s quantitative and qualitative attacks on the forensic evidence

components of the trial court’s findings miss the mark……………………….31

State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165 (2012)……………………….35

00287310-3 iii

D. The trial court’s findings and conclusions that the Purported Codicil

was not executed in accordance with K.S.A. § 59-606 are sound…………….38

City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861

P.2d 1316 (1993)………………………………………………………………….42

Hurlbut v. Conoco, Inc., 253 Kan. 515, 531, 856 P.2d 1313 (1993)………………42

State v. Huddleston, 298 Kan. 941, 960-61, 318 P.3d 140 (2014)…………………42

Issue II: Earl’s testamentary capacity was not raised as an issue at trial

and should not be considered on appeal.………………………………………………43

Supreme Court Rule 6.02(a)(5)…………………………………………………...43

Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007)………………………43

Issue III: The trial court correctly found that Earl and Nonie had a

common and contractual estate plan…………………………………………………..45

A. Standards of Review…………………………………………………………..45

In re Estate of Chronister, 203 Kan. 366, Syl. ¶ 1, 454

P.2d 438 (1969)…………………………………………………………………...45

Garrett v. Read, 278 Kan. 662, Syl. ¶ 4, 668-70, 102

P.3d 436 (2004)……………………………………………………………….45, 46

Nelson v. Nelson, 288 Kan. 570, 205 P.3d 715 (2009)……………………………45

Eikmeier v. Eikmeier, 174 Kan. 71, 77, 80-81, 254 P.2d 236 (1953)………………45

Reznik v. McKee, 216 Kan. 659, Syl. ¶¶ 2, 4, & 11, 678-79, 534

P.2d 243 (1975)……………………………………………………………….45, 46

B. The evidence compels the conclusion that Earl and Nonie had an

agreement as to the disposition of the wealth they built together………………46

C. Oborny’s “cat manure” reference is misdirected………………………………48

Issue IV: The trial court correctly determined that, even had the

Purported Codicil been duly executed, probate of same is barred by

Common law and statutory undue influence..…………………………………………49

A. Standards of Review……………………………………………………..........49

Cresto v. Cresto, 302 Kan. 820, 829, 835, 848, 358 P.3d 831 (2015)……………49

00287310-3 iv

K.S.A. § 59-605…………………………………………………………………...49

In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000)………………49

B. Common law undue influence………………………………………………...49

Matter of Ziegelmeier's Estate, 224 Kan. 617, 622, 585

P.2d 974 (1978)…………………………………………………………………...49

In re Estate of Haneberg, 270 Kan. 365, 375, 14 P.3d 1088 (2000)………………50

Cresto v. Cresto, 302 Kan. 820, Syl. ¶¶ 4 & 7, 829, 833, 848, 358

P.3d 831 (2015)……………………………………………………………….50, 53

In re Brown's Estate, 230 Kan. 726, 732, 640 P.2d 1250 (1982)…………………50

In re Estate of Farr, 274 Kan. 51, 58, 72, 49 P.3d 415 (2002)………………..50, 51

Restatement (Third) of Property: Wills & Donative Transfers § 8.3,

pp. 147-48, subcmt. h. (2003)……………………………………………………51

C. Statutory undue influence……………………………………………………..53

K.S.A. § 59-605…………………………………………………………………...53

Issue V: The trial court correctly found that the elements of promissory

estoppel and oral contract to devise property were established by the

evidence………………………………………………………………………………….54

Estate of Belden v. Brown County, 46 Kan.App.2d 247, Syl. ¶¶ 3-4,

261 P.3d 943 (2011)………………………………………………………………54

Nature of Case No. 117079……………………………………………………………...55

Statement of the Issues………………………………………………………………….55

Statement of Facts………………………………………………………………………55

K.S.A. § 59-1504………………………………………………………………….55

Arguments and Authorities…………………………………………………………….56

Issue I: The trial court erred in construing K.S.A. § 59-1504 to authorize

payment of Oborny’s attorneys’ fees and litigation expenses………………………..56

A. Standards of Review…………………………………………………………..56

00287310-3 v

Johnson v. Westoff Sand Co., Inc., 281 Kan. 930, 939, 135

P.3d 1127 (2006)………………………………………………………………….56

In re Estate of Robinson, 236 Kan. 431, Syl. ¶ 1, 690 P.2d

1383 (1984)……………………………………………………………………….56

Idbeis v. Wichita Surgical Specialists, P.A., 285 Kan. 485, 490, 173

P.3d 642 (2007)…………………………………………………………………...56

B. Oborny’s exclusive statutory basis is K.S.A. § 59-1504………………………56

K.S.A. § 59-1504………………………………………………………………….56

C. Oborny lacks statutory standing and authority………………………………...57

K.S.A. § 59-1504……………………………………………………………...57, 58

In re Estate of Gardiner, 29 Kan.App.2d 158, 163-64, 23

P.3d 902 (2001)…………………………………………………………………...58

D. A person who knowingly prosecutes an action to admit a forged

or unduly influenced testamentary instrument does not act in

“good faith” or with “just cause” under K.S.A. § 59-1504……………………58

K.S.A. § 59-1504………………………………………………….58, 59, 60, 62, 64

In re Estate of Robinson, 236 Kan. 431, 436-37, 690 P.2d 1383

(1984)……………………………………………………………………………..58

In re Estate of Gardiner, 29 Kan.App.2d 158, 163-64, 23 P.3d

902 (2001)………………………………………………………………………...59

In re Graham’s Estate, 23 So.2d, 485, 488-89 (Fla. 1945)……………………….59

Hammer v. Thompson, 35 Kan.App.2d 165, Syl. ¶ 9, 129 P.3d

609 (2006)………………………………………………………………………...60

Foster v. Stonebridge Life Ins. Co., 50 Kan.App.2d 1, 29, 327

P.3d 1014 (2012)………………………………………………………………….60

Meier’s Trucking Co. v. United Const. Co., Inc., 237 Kan. 692,

699-700, 704 P.2d 2 (1985)……………………………………………………….60

Inscho v. Exide Corp., 29 Kan.App.2d 892, 897, 33 P.3d 249 (2001)…………….60

In re Grant, 262 Kan. 269, 272, 936 P.2d 1360 (1997)……………………………61

In re Beck, 298 Kan. 881, 895, 318 P.3d 977 (2014)………………………………61

In re Koellen’s Estate, 167 Kan. 676, 683, 208 P.2d 595 (1949)…………………61

Johnson v. Routzong, No. 980, 1979 WL 208630, *3

(Ohio Ct. App. 2d, 1979)………………………………………………………….62

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Hoegh v. Estate of Johnson, 985 So.2d 1185, 1186

(Fla. Dist. Ct. App. 2008)…………………………………………………………62

Medill v. McIntire, 136 Kan. 594, 595-8 16 P.2d 952 (1932)…………………….62

K.S.A. § 59-1717………………………………………………………………….62

In re Faust’s Estate, 150 Kan. 784, 788-89, 96 P.2d 680 (1939)…………………62

Shipley, W.E., Annotation, Right to Allowance Out of Estate

of Attorneys’ Fees Incurred in Attempt to Establish or Defeat Will,

40 A.L.R.2d 1407 (1955 & Supp.)………………………………………………...62

Steel v. Guardianship and Conservatorship of Crist, 251

Kan. 712, 721, 840 P.2d 1107 (1992)……………………………………………..63

Conclusion………………………………………………………………………………64

Appendix

A. Video surveillance image of Oborny on February 19, 2013 (from R. XXV, 281-

86).

B. Joe Jeter’s version of unwitnessed January 23, 2013, letter (from R. XXXIII,

V. 1, 40-41).

C. Oborny’s version of unwitnessed January 23, 2013, letter (from R. XXXIII, V.

1, 39-41).

D. The Purported Codicil (from R. XXXIII, V. 1, 38).

E. Oborny’s shredded handwritten draft of instrument similar to Purported

Codicil as reconstructed (from R. XXXII, 92-114).

F. Shredded and reconstructed copy of Purported Codicil missing date and

witness signatures (from R. XXVIII, 405-407).

00287344-6 1

Statement of Issues

Issue I: The trial court correctly found that the Purported Codicil was neither

typed nor signed by Earl, and that Oborny did not prove due execution

in accordance with K.S.A. § 59-606.

Issue II: Earl’s testamentary capacity was not raised as an issue at trial and

should not be considered on appeal.

Issue III: The trial court correctly found that Earl and Nonie had a common and

contractual estate plan.

Issue IV: The trial court correctly determined that, even had the Purported

Codicil been duly executed, probate of same is barred by common law

and statutory undue influence.

Issue V: The trial court correctly found that the elements of promissory estoppel

and oral contract to devise property were established by the evidence at

trial.

Statement of Facts

After a two-week trial, during which testimony from over 30 witnesses and over

300 exhibits were presented, District Judge, William F. Lyle, Jr., reaffirmed the intended

legacy of Earl and Winona Field (individually “Earl” and “Nonie;” collectively the

“Fields”). The parties below included Fort Hays State University Foundation (“FHSU

Foundation”); Vincent, Timothy, and Lynda Burghart (the “Burgharts”); Steven, Scott, and

Brian Brecheisen (the “Brecheisens”); Wanda Oborny (“Oborny”); and, Joseph and

William Jeter (the “Jeters”). FHSU Foundation is a not-for-profit corporation responsible

for raising and administering private charitable contributions for Fort Hays State University

(“FHSU”). (R. VIII, 225). The Burgharts were close friends and tenant farmers of Earl

and Nonie. (R. IX, 307; R. X, 5-7, 157-67). The Brecheisens are sons of Nonie’s brother,

the late Carl Bernard Brecheisen. (R. XXVII, 6-13). Oborny was Earl’s part-time

00287344-6 2

bookkeeper. (R. VII, 59-60, 64). Together with their late-father, Norman, the Jeters were

Earl and Nonie’s lawyers for decades and named co-executors in Earl’s August 12, 2010,

Last Will and Testament (“2010 Will”). (R. IX, 110-11; R. XXVII, 6-13). At Earl’s death,

the Jeters also represented FHSU Foundation. (R. VIII, 224).

Earl and Nonie had a common estate plan for decades. They wanted the Burgharts

to have a life estate in real estate the Burgharts farmed for Earl and Nonie. They wanted

property that came from Nonie’s family, the Brecheisens, to stay in her family. And, they

wanted all of remaining lifetime wealth to pass to the FHSU Foundation to fund music and

athletic scholarships for students attending FHSU, their alma mater. After Nonie died in

October of 2009, Earl directed his counsel, Joseph Jeter, to prepare the 2010 Will. The

2010 Will is consistent with Earl and Nonie’s common estate plan. (R. IX, 206-8; R.

XXVIII, 114-230; R. XXVII, 6-13).

Oborny alleges that, roughly 30 days before his February 19, 2013, death, Earl

decided to change the long-standing estate plan by typing and signing a January 22, 2013,

letter referred to by the parties at trial as the “Purported Codicil.” The Purported Codicil

does not mention the Burgharts or leave the Brecheisen property to the Brecheisens.

Instead, it basically purports to leave Oborny half of the estate, Joseph Jeter one-fourth,

and FHSU Foundation one-fourth. Oborny claimed that the Purported Codicil revoked the

2010 Will or amended it. (R. III, 1-28, 169-206). As of his death, Earl’s estate exceeded

$20,000,000. (R. XXVII, 96-106).

FHSU Foundation, the Burgharts, and the Brecheisens joined in contesting

Oborny’s attempt to probate the Purported Codicil because Earl did not type or sign it.

00287344-6 3

Their alternative defenses included undue influence, contractual will, and estoppel. (R. III,

176-85). After considering the evidence at trial and proposed findings and conclusions

submitted, Judge Lyle rejected Oborny’s claims and her Purported Codicil by Journal

Entry of Judgment filed June 1, 2016, supported by 109 findings of fact and 53 conclusions

of law tied to the trial record. (R. IV, 377-439; R. V, 19-23).

Earl and Nonie’s history and relationships were addressed in detail. Earl and Nonie

were childhood sweethearts from Offerle, Kansas. They both attended FHSU. Nonie

obtained a teaching certificate, and Earl graduated with a degree in economics. Earl and

Nonie married on June 19, 1938, and purchased an abstract and title company. (R. XXIX,

616-646).

Following the Japanese attack on Pearl Harbor, Earl completed civilian pilot

training and served four years in World War II. Earl was captured by the Germans behind

enemy lines, but managed to escape and was awarded a Purple Heart. (R. XXXIII, V. 2,

22-32). While Earl was away, Nonie ran their abstract business on her own as a licensed

abstractor. (R. IX, 108). After Earl returned, Nonie and Earl ran the company together

until they sold the business. (R. XXIX, 616-646). By all accounts, Earl and Nonie had a

close and loving relationship, were strongly devoted and committed to one another, and

were a team in everything they did. They were partners in business and worked together

to build their wealth. (R. VI, 112-13; R. VIII, 78-80; R. IX, 108; R. X, 29, 39-42, 83, 85,

120, 132, 152; R. XII, 244-45, 252; R. XIII, 37-38, 52, 272-73; R. XXIX, 616-646).

Earl was a meticulous, parsimonious, and tax-averse. He disputed property tax

valuations, employed investment strategies to avoid income tax, and committed the bulk

00287344-6 4

of his investments to tax-free municipal bonds. Earl and Nonie’s wills from 1987 through

2010 avoid the substantial estate tax to which their estates would typically be subject by

leaving the bulk of their wealth to charity–the FHSU Foundation–to fund scholarships for

students attending FHSU. Earl’s accountant, Ralph Howerton, confirmed that Earl had

made it clear to him to not counsel him about estate tax avoidance because he was leaving

most of his estate to FHSU Foundation, a charitable institution. (R. VIII, 203-6; R. IX,

279; R. X, 26-28, 138-39, 143-45; R. XIII, 201-216, 221-22).

Joe Jeter’s firm files confirm that Earl and Nonie were joint clients of that firm since

at least the 1960s, and that they regularly used their services. Earl and Nonie always used

the Jeter firm for estate planning, and never typed their own wills. The Jeter firm drafted

at least 16 testamentary instruments for the Fields. When Earl and Nonie met with the

Jeters, revisions to both Earl and Nonie’s wills were contemporaneous and consistent. As

the vast majority of Earl and Nonie’s lifetime wealth was always committed to FHSU

Foundation, no elaborate techniques were implemented by Earl or recommended by the

Jeter firm to avoid or limit estate tax. (R. XXVI, 1195-1611; R. XXVIII, 102-278; R. IX,

178, 279-80; R. XIII, 205-6).

Earl and Nonie were dedicated to FHSU. They were season ticket holders to most

athletics and active in the alumni association. They were bestowed with numerous awards

and recognitions, including the FHSU Distinguished Service Award. They were inducted

into the Tiger Sport Hall of Fame, and the FHSU Athletic Department weight room is

named for them and still bears a plaque with their portrait. Earl and Nonie consistently

made unsolicited annual gifts to FHSU Foundation. Over their lifetimes, the Fields

00287344-6 5

contributed over $400,000 to FHSU in addition to their time and service. (R. XXIX, 616-

646; R. IX, 6-12).

By at least 1987, Earl and Nonie had established a testamentary commitment to

FHSU Foundation that never changed. Nonie’s will left her undivided half in a quarter

section of Haskell County land that she had inherited from her father to Earl for life and

then to her brother, Carl Brecheisen, who owned the other half. The rest of her property

went to Earl, if he survived her. Similarly, Earl’s will left certain real property he inherited

from his father to Nonie for life and then to his sister. The remainder of his property was

left to Nonie, if she survived him. The remainder of each testator’s estate passed to FHSU

Foundation to be held in the “Earl O. and Winona M. Field Endowment and Scholarship

Fund” under very specific directions and restrictions. One was that 25% of the income

would be used to provide scholarships for students studying music, as Nonie loved music.

Another provided that 25% of the income would be used for athletic scholarships, as Earl

loved athletics. Earl and Nonie each required that the remaining 50% of the income be

reinvested and added to the principal of the endowed fund. (R. XXVIII, 125-136). These

specific directions, restrictions, and terms in favor of FHSU Foundation were preserved in

all subsequent wills of Earl and Nonie, including those executed in 1994, 1996, 1998, 2000,

2003, 2005, and 2009. (R. XXVIII, 137-253; R. XXVI, 1195-1611; R. XXVII, 6-13; R.

IX, 208).

In November 2005, Earl emailed Lynda Burghart and explained why he and Nonie

were leaving their estate to FHSU:

…Our concer[n] and probably the reason of leaving the bulk of the estate to

the College is to preserve our name - or legacy - if it can be called that - and

00287344-6 6

to be rem[em]bered in the years to come. Since we have no children it was

our thinking that this would preserve our name in years to come. No doubt

things would have been different had we had children. they - the College can

only spend a portion of the income from the estate each year and the balance

carried forward and thus to be increased each year… (R. XXX, 134).

(Emphasis added).

In 2009, Earl and Nonie executed mirror image wills leaving everything to FHSU

Foundation except the life estate to Vincent and Tim Burghart in the property they farmed

for Earl and Nonie. The grant and endowed fund to FHSU Foundation remained. These

were Earl and Nonie’s last wills before Nonie died on October 2, 2009. (R. XXVIII, 217-

230; R. XXVI, 1195-1611; R. IX, 206). Joe Jeter drafted the 2009 wills, and agreed that

they represented what Earl and Nonie wanted. (R. IX, 111-12, 206-7). Joe also

acknowledged that his firm represented Earl and Nonie jointly, and could not have done so

had their estate plans been inconsistent. (R. IX, 234). It was common knowledge to the

Burgharts, to representatives of FHSU Foundation, and to friends of Earl and Nonie, that

Earl and Nonie were mutually committed to the legacy they had established together to

leave substantially all of their estate to FHSU Foundation, with the exception of the

Burgharts’ life estate. (R. IX, 17-22; R. X, 28-29, 151; R. XII, 252-56).

After Nonie died, Earl reaffirmed their estate plan and endowed scholarship fund.

In February of 2010, Joe Jeter, with Earl’s consent, called a meeting with Earl and Tim D.

Chapman, President and CEO of FHSU Foundation. Joe understood from Earl that the

2010 Will was going to be Earl’s last will, and this motivated him to call the meeting to

ensure that this last will would work for FHSU Foundation. (R. IX, 116-117). Earl had Mr.

Chapman review a copy of Earl’s 2009 will. In a February 25, 2010, email to FHSU

00287344-6 7

President, Dr. Edward Hammond, Mr. Chapman memorialized his communications with

Earl:

Per my conversation with Earl and Joe regarding the final arrangements of

the Field estate:

1) Value $7.0 mil

This includes all holdings of stocks, Bonds, land, real estate, cash.

There is 2,000 acres in Edwards and Ford Cos. that will either go into a Life

Estate for the current tenants or, and Earl and Joe were going to discuss this

further, keep the arrangement as it is now; rent the property from the FHSU

Foundation. Either option would also bring all income generated from oil

production to the Foundation.

. . . .

All assets generated from the estate would establish an endowed fund

to benefit scholarships. Proceeds would be split as follows: A. 25% to Music.

If there are not enough music students the balance would then be distributed

to the visual arts program. B. 25% to Athletics. C. Remainder income, or,

the balance of 50% would be folded back into the principal of the account.

As to options for income not needed to fund scholarships, Mr. Chapman reported Earl’s

reaction as follows:

…He did discuss the option that had been presented to him to give money

now to be used for operations, construction etc. and he said that just didn’t

fit his long range goals and intent he and Nonni [sic] talked about…He made

it clear this is what she wanted and he wasn’t going to change it now. (R.

XXIX, 614-615).

Earl estimated that his estate was worth $6-7 million, but also assured Mr. Chapman that

he would be “pleasantly surprised,” suggesting that the estate was worth more. (R. VIII,

219-22).

Consistent with his and Nonie’s prior wills and Earl’s statements to Joe Jeter and

Mr. Chapman, Earl executed the 2010 Will that leaves all assets to FHSU Foundation

except the specific gifts to the Brecheisens and Burgharts. Earl selected Joe Jeter and his

00287344-6 8

brother, Bill Jeter, as co-executors, and the original of Earl’s 2010 Will was kept for

safekeeping at Joe’s office. (R. XXVIII, 6-13; R. IX, 156).

Earl confirmed his commitment to leave the bulk of his estate to FHSU to numerous

people both before and after Nonie died. (See, e.g., R. X, 151). As late as February 9,

2013, Earl confided in Dr. Edward Hammond that nothing had changed in his will, and that

FHSU Foundation “was going to get it all.” (R. XII, 259-65, 281). Earl asked Dr.

Hammond to promise him that his and Nonie’s wishes would be honored, a promise he

received. Earl wanted to make sure that athletics did not get more than 50% of the income

dedicated for scholarships that he and Nonie had agreed upon. (Id.). Earl also told Dr.

Hammond that Joe Jeter had Earl’s will. The 2010 Will was the only original last will and

testament of Earl that Joe possessed on February 9, 2013. (R. IX, 156).

Earl never expressed any resentment, or negative sentiments whatsoever, towards

the Burgharts or the Brecheisens. Earl and Nonie never mentioned or suggested that they

intended to disinherit the Burgharts, the Brecheisens, or FHSU Foundation. (R. VIII, 76-

77, 80-81; R. IX, 33, 101, 221; R. X, 176; R. XII, 263-64; R. XIII, 31-32, 36). Even Ralph

Engel, the witness relied on by Oborny to suggest that Earl had negative feelings towards

FHSU late in life, acknowledged that Earl had never mentioned that he intended to

disinherit FHSU. (R. X, 151). At trial, Oborny confirmed her earlier deposition testimony

that, until after Earl died, she thought Earl’s estate was going to FHSU Foundation, the

Burgharts, and the Brecheisens. (R. VIII, 81). Joe Jeter agreed that Earl had never

mentioned to him or to anyone in his office between 2010 and 2013 that Earl wanted to

leave money to Oborny as part of his estate planning. (R. IX, 220-221).

00287344-6 9

Earl’s friend, Bill Talbott, officed across the hall and saw Earl frequently. Mr.

Talbott thought Earl was leaving his farmland to the Burgharts and the rest to FHSU. Earl

told Mr. Talbott that his estate was going to FHSU, and Mr. Talbott agreed that it would

be out of character for Earl to disinherit the Burgharts or to leave a taxable estate. (R.

XVII, 5-6, 20-24, 43-44).

According to Ralph Howerton, Earl’s stated tax philosophy was to pay what he

owed, but not a penny more. Earl never attempted to evade taxes due or to misrepresent

anything on his tax returns. Mr. Howerton believed Earl to know the basic rules concerning

gift tax returns, and that Earl did not require gift tax returns because he made deductible

charitable contributions and not taxable gifts to individuals. Earl never gave Mr. Howerton

any indication of wanting to gift or leave money to Oborny or to Joe Jeter. (R. XIII, 201-

6, 215-22).

The Special Administrator confirmed that under the 2010 Will, Earl’s estate

incurred no federal or state estate tax. If, on the other hand, Oborny’s Purported Codicil

was deemed valid, Earl’s estate would incur around $4 million in estate tax because 75%

of the estate would pass to Oborny and Joe Jeter instead of to charity. (R. VIII, 204-207).

Ralph Engel and Ralph Howerton each confirmed at trial that Earl would be “rolling over

in his grave” if he knew his estate would have to pay millions in estate tax. (R. X, 138-39;

R. XIII, 221-22).

The Purported Codicil does not mention the Burgharts or the life estate in their favor

for the farm property they had farmed for decades. The Burgharts knew Earl and Nonie

since they were young, having grown up in the same hometown. Vincent Burghart’s

00287344-6 10

relationship with Earl deepened in early 1980 when he began assisting a local elderly

farmer in farming wheat on Earl’s land. (R. IX, 307-8; R. X, 6, 20, 157-58). Earl asked

Vincent to take over the operation, and Vincent agreed. (R. X, 158-60). Vincent needed

help, so Tim and Lynda Burghart quit their jobs, moved home, and helped him. (R. X, 20-

22, 160-61).

The Burgharts were like family to the Fields. During Earl’s frequent trips to check

on his property, Vincent and Earl would share meals and personal stories of their military

careers. (R. X, 157-60, 166, 171-72, 177, 181). When Earl purchased additional land with

an old homestead, he asked Vincent to move to the homestead. Vincent agreed, moved in

and made it habitable. As of trial, Vincent was still living and maintaining the homestead

and its grounds. (R. X, 157, 166-67). In 2005, Lynda and Tim drove to Arizona to help the

Fields move out of their winter home and back to Kansas. Lynda telephoned Nonie and/or

Earl almost daily and frequently corresponded with them by letter and email. Lynda and

Tim helped Earl cope with the loss of Nonie. Later in Earl’s life, written and email

correspondence stopped because Earl was having difficulty typing, but Lynda and Tim

continued to visit Earl in Hays and to remain in constant contact by telephone. (R. IX, 309,

312-314; R. X, 30, 46-47, 59-60; R. XXX, 67-406; R. XXXI, 1-229). The Burgharts were

good stewards, and Earl and Nonie were proud of them. (R. X, 22-25, 142, 162-165, 167,

178). When they first promised Vincent a life estate, Earl sent a letter to Norman Jeter

suggesting the following testamentary language: “[it] is the wish, will and desire of Earl

O. Field and Nonie M. Field, Hays, Kansas, that Vincent Burghart have and receive a life

estate in the following land… .” (emphasis added). (R. XXXI, 236).

00287344-6 11

Earl and Nonie’s wills consistently provided that the land and associated mineral

interest that Nonie and her brother, Carl Brecheisen, had inherited from their father would

stay with the Brecheisen family. (R. XXVIII, 6-13, 125-194; R. XXX, 53-59). Nonie’s

wills also always provided for a monetary gift to Carl Brecheisen or to his children. (R.

XXVIII, 125-136, 146-210, 217-230). After the Brecheisen land was sold and Nonie died,

Earl caused a Petition for Determination of Descent to be filed to clear the title to the

reserved mineral interest. Earl’s 2010 Will devises Nonie’s mineral interest to the

Brecheisens and leaves them specific monetary gifts like Nonie had. (R. IX, 164-65; R.

XXXIII, V. 2, 9; R. XXVIII, 6-13; R. XXX, 64-65).

Oborny knew Earl for about 5 years, working for him as a part-time bookkeeper

from sometime in 2008 to his death on February 19, 2013. During this time, Oborny

became intimately familiar with Earl’s personal and business affairs, had access to all of

Earl’s personal and business documents, and signed checks drawn on his accounts. (R.

VII, 60-62, 96-97; R. XXXII, 115 (R. XXV, 353-363)). Nonie’s October 2, 2009, death

had a tragic impact on Earl’s life. Witnesses described Earl as being lost and depressed.

(See, e.g., R. VI, 113-14; R. X, 34-41, 132, 169; R. XII, 253; R. XIII, 24). Oborny testified

that, after Nonie died, Earl “begged me not to leave.” (R. VII, 177). Earl was vulnerable.

(R. VI, 113-14; R. XIII, 24).

By stipulation, select deposition testimony was admitted from Merle Mahoney,

Oborny’s former supervisor during her employment at Farmers State Bank (n/k/a

Commerce Bank) in Hays before Earl hired Oborny. Mr. Mahoney confirmed that Oborny

had written herself checks out of a bank custodial account, and that Oborny was fired for

00287344-6 12

misappropriation of funds. (R. XI, 126-27; R. XXXII, 127-31, 137-38). After claiming

sexual discrimination, Oborny ultimately conceded that her termination from First State

Bank was related to her bouncing checks and misappropriating money. (R. VIII, 24-27).

One of Oborny’s former high school classmates, Jolene Burd, also testified. Ms. Burd

confirmed that, while serving as treasurer for a class reunion event, Oborny took money

from their class account. Ms. Burd pursued Oborny to recover the funds, which Oborny

admitted having taken, and ultimately collected the money from Oborny over time. (R.

XIII, 190-96).

Oborny took advantage of Earl after Nonie died. For example, Oborny used Earl’s

money to cover her bounced checks. (R. VIII, 54-55). She inexplicably added sums to her

regular salary checks; to writing checks to herself for alleged bonuses and raises after Earl

died; to backdating checks; and, to backdating Earl’s ledger entries. (R. VIII, 27-38, 50-

55). One of Earl’s checks that Oborny used to cover one of her bounced checks was altered

on the memo line by a redaction in order to change the account number. (R. VIII, 58-60;

R. XXIX, 432-435). Oborny wrote and signed checks drawn on Earl’s accounts to her

family members. (R. VIII, 62-63; R. XXIX, 458). She quickly redeemed “investments”

Earl made for her and used the money to cover her debts and spending. (R. XXIX, 86-134,

193-211, 543-545, 600-603). Oborny’s transfers and use of Earl’s funds was criticized,

and the known aggregate amount of questionable pre-death transactions in favor of Oborny

exceeds $300,000. (R. XIII, 279-80; R. XXVIII, 373-386, R. XXIX, 51-162, 174-179,

183-317, 346-370, 387-391, 413-420, 515-603, 605).

00287344-6 13

At deposition, Oborny testified that she received a $25,000 check from Earl that he

and she considered a “bonus.” At trial, Oborny claimed this check was really a “gift” to

explain why she did not report same as income on her tax returns. (Compare R. VIII 64-

65 with R. VII, 81-82). In relation to this and other alleged gifts, no one ever informed Mr.

Howerton that Earl had made any taxable gifts to Oborny so that he and Earl could prepare

the required tax returns. (R. XIII, 221-226). Regarding Oborny’s alleged bonuses and

other inexplicable addition to her salary, moreover, Mr. Howerton confirmed that Oborny

was responsible for preparing the employment withholding tax returns, and that no one

ever disclosed Oborny’s claimed bonuses. (R. XIII, 234-35). Oborny did not report the

alleged bonuses on any of her tax returns. She admitted filing false tax returns. (R. VIII,

64-67; R. XXVIII, 511-563; R. XXIX, 1-48).

After Earl died, Oborny continued to pay herself wages and alleged bonuses out of

Earl’s accounts, deposited Earl’s royalty checks and dividend checks into an account to

which she claims ownership, and took control of, or transferred into new accounts, bank

and brokerage accounts that she claims Earl wanted her to have. All told, the aggregate

value of these questionable post-death transactions exceeds $600,000. (R. XIII, 280-82; R.

XXVIII, 373-378; R. XXIX, 51-70, 163-173, 212-242, 245-247, 318-345, 392, 395-403,

413-418, 441-457, 509-514). Whether Earl knowingly condoned or authorized all of these

transactions was disputed. After Earl died, Oborny also backdated a W-3 form that she

filed with the federal government that suggested Earl had approved the document even

though he had died earlier. At trial, Oborny attempted to recant her prior deposition

admission to this effect. (R. VIII, 67-74).

00287344-6 14

Witnesses were in unison that Earl would never have knowingly employed a

dishonest employee. (R. IX, 175; R. X, 8, 141). Had Earl known that Oborny had been

terminated from prior employment for misappropriating funds, Earl would likely not have

hired Oborny, according to witnesses who knew him. (R. X, 19-20, 141). The Burgharts

heard Nonie tell Earl that she did not trust Oborny, and that Earl should fire her because

Oborny was after their money. (R. IX, 315-316, 324; R. X, 14-15, 32-33, 54-58).

According to the Burgharts, Earl would react by saying that Oborny meant nothing to him;

that she was only his secretary; and, that he pays her well. (Id.).

Earl fell at home around January 14, 2013, and was unable to get up without

assistance. He was 98, had vision problems, a heart condition, a bad knee that required use

of a walker, and Ménière’s disease. (R. VI, 105-8, 110-12; R. VII, 192; R. XXXI, 254-255,

257-259). Earl’s treating physician, Dr. Randy Cook, testified as to Earl’s condition before

he was hospitalized. Dr. Cook confirmed that, even before Earl had suffered his fall, Earl

was suffering from mucinous cystoadenoma, an extremely rare and aggressive form of

cancer. (R. VI, 98, 110-111). From January 14, 2013, forward, Earl was losing weight,

anorexic, and unstable. He was dying. (Id.). Earl’s condition was so poor that Joe Jeter tried

to get Earl to go to the doctor on January 25, 2013, but Earl refused to go. (R. IX, 125).

Earl was admitted to the hospital on January 28, 2013. Earl denied life-saving

intervention and was transferred to a nursing home to live out the remainder of his days.

(R. VI, 98-99, 102-105, 114; R. XXXIII, V. 1, 44-71; V. 2, 183-247). Upon admission,

Earl was interviewed by Sandy Dinkel, the facility’s social worker. Earl told Ms. Dinkel

his proudest experience was having been in business with his wife, Nonie, and that his

00287344-6 15

favorite subject was FHSU. (R. X, 84-86). Earl told her he was proud that his wife ran the

business while he was away at war. Earl chose “FHSU Tigers” as his medical disclosure

password. (R. X, 86-87, 90).

While Earl was dying in the nursing home, Oborny claims that Earl hurried her to

fill out and sign a $100,000 check to her drawn on his bank account as a “birthday gift.”

(R. VII, 84-85). The check was completed and signed by Oborny, but was not deposited

until February 25, 2013. (R. XXVIII, 379-386). Oborny also claimed that Earl had

mentioned an envelope in a drawer that Joe Jeter needed to have. (R. XXXIII, V. 1, 125-

152). Earl did not mention this envelope to Joe personally, and Oborny testified that she

kept it a secret from Joe Jeter too until after Earl died. Oborny’s testimony conflicts with

Joe Jeter’s testimony in this respect. (R. VIII, 21-23). Oborny also claims that Earl told

Oborny to discourage the Burgharts from visiting him by “fibbing” to them that he could

not have visitors. The Burgharts visited Earl anyway. (R. VII, 134-35; R. X, 50-51, 168-

69).

Oborny had unfettered access to Earl’s office and home before, and for months after,

Earl died. (R. VII, 248-49). Bank security video confirms frequent trips Oborny made to

Earl’s office before and after his death. (R. XXIX, 459-508; R. XXXII, 163). Oborny

spent comparatively more time at Earl’s office after he died than before he was

hospitalized, and Oborny even went to Earl’s office the night of his death. (Id.; see also

R. VII, 250-54). That night, she allegedly found two letters, each dated January 23, 2013,

that she thought was Earl’s will. According to Oborny, one of the letters was in an envelope

addressed to Joe Jeter, and one was allegedly discovered in an envelope addressed to

00287344-6 16

Oborny. Oborny claims that the January 23, 2013, letters were typed and signed in secret

by Earl. The letters lack witness signatures, but purport to change Earl’s estate plan. (R.

VII, 260-74; R. XXVIII, 458-492; R. XXIX, 459-508; R. XXXIII, V. 1, 39-41). When

Oborny allegedy discovered the letters, she described herself as distraught, crying,

grieving, exhausted, and devastated. Money was the furthest thing from her mind.

Attached as “A” to the Appendix is an image of Oborny that security video captured as she

left Earl’s office on this night of Earl’s death. (R. VII, 281-83; R. XXV, 281-86).

On February 20, 2013, Oborny left Joe Jeter a message that she had found an

important document he needed to see. Joe and Oborny spoke shortly thereafter in Earl’s

office. Oborny showed Joe the January 23, 2013, letter that she claims was in Earl’s desk

drawer in the envelope addressed to Joe. (R. VII, 270-76; R. XXVIII, 458-492). An image

of this letter is included in the Appendix and marked “B.” The undisputed evidence is that

the typewriter ribbon was changed before the letter was finished, as demonstrated by the

darkened text starting in the fourth paragraph. (R. XXXIII, V. 1, 40-41; R. VII, 216-17).

Joe Jeter told Oborny that the letter was not a valid testamentary instrument because it

lacked witness signatures. Oborny then sought the advice of her current counsel, Don

Hoffman, who advised her the same. (R. VII, 274-78). Before Oborny’s meeting with

Don Hoffman to discuss the January 23, 2013, letter, Oborny’s good friend, Kathy Little,

sent one or more text messages to Oborny wishing her “good luck.” (R. VII, 291-92; R.

XXVIII, 71-82).

A copy of the January 23, 2013, letter, allegedly found in the envelope addressed to

Oborny, was also presented at trial. (R. XXXIII, V. 1, 39). No original was available

00287344-6 17

because Oborny admitted having it destroyed or discarded. (R. VII, 238-39). The letter is

a copy of the January 23, 2013, unwitnessed letter addressed to Joe Jeter, except someone

first redacted the original date and typed a personal note to Oborny and a new date at the

bottom of the copy. (R. VII, 211-27; R. XXXIII, V. 1, 39-41; R. XXXII, 162). A copy of

the altered letter is reproduced in the Appendix as “C.” Whoever prepared the two versions

of the January 23, 2013, letter would have had to make copies of a typewritten letter and

to either redact information on the copy before typing additional information on the copy

or to engage in other extraordinary measures, like using a typed document as copy stock,

to explain the existence of each document. Oborny conceded at trial that Earl would not

have been redacting or typing information on a blank document and then using the typed

document as copy stock, and that Earl was not using whiteout or redaction tape on January

22 or 23, 2013. (R. VII, 217-228). In fact, Oborny did not recall seeing Earl engaging in

any copying, redacting, or typing on January 23, 2013, and admitted that they only spent

approximately 30 minutes together at Earl’s office. (R. VII, 109-10, 196-97, 201-5, 217-

18; R. XXXIII, V. 1, 230-239).

According to Oborny, the Purported Codicil was not found by her until February

26, 2013, the morning after her good friends, Steve and Kathy Little, surprised her with

news of a witnessed letter. The Purported Codicil is substantially similar to the January

23, 2013, letter, except it contains witness signatures. (R. VII, 150-51, 153-58, 213-14; R.

XXXIII, V. 1, 38).

Oborny was in repeated and consistent contact with her friend, Kathy Little, before

and after Earl’s death. (R. XXVIII, 71-82, 425-492; R. XXXII, 164, 167). Oborny spoke

00287344-6 18

with Kathy Little for over two minutes on the evening of February 19, 2013, directly before

arriving at Earl’s office to discover the envelopes containing the January 23, 2013, letters,

according to Oborny. (R. VII, 271; R. XXVIII, 458-492). Oborny was in daily contact

with Kathy Little between Earl’s death and February 25, 2013, but claims that Kathy Little

never told her about having witnessed a will for Earl before the night of February 25, 2013.

(R. XXXII, 167; R. VII, 154-56). Oborny admitted mentioning the January 23, 2013,

unwitnessed letter to Kathy Little within a day or two of finding it, and telling her that Joe

Jeter had told her that it was no good to pass property. (R. VII, 285-87). At deposition,

Kathy Little denied memory of any such conversation. (R. VI, 121; R. XXXIII, 1 (R. XXI,

95-96, 101)). Steve Little’s testimony conflicted with his wife’s in this regard, and

confirms that Oborny had told Kathy Little that Joe Jeter said the January 23, 2013, letter

was no good because it lacked witness signatures. (R. VI, 121; R. XXXIII, 2 (R. XX, 24-

25)). At deposition, Oborny testified that Joe Jeter and Don Hoffman had each told her

that the January 23, 2013, letter was no good because it lacked witness signatures. At trial,

Oborny denied hearing from Joe Jeter or Don Hoffman the reason the January 23, 2013,

letter was no good to pass property. (R. VII, 149, 214, 275-77).

During the afternoon of February 25, 2013, Steve Little called Joe Jeter from the

Lewis Auto dealership where Steve sold cars. Steve Little informed Joe Jeter that Earl had

he and his wife witness a letter for him on his letterhead, and that they had not told Oborny

because Earl wanted it to be a “surprise.” (R. VI, 121; R. XXXIII, 2 (R. XX, 20-25, 71-

73); R. XXVIII, 338-340). After notifying Joe Jeter and without telling Oborny, the Littles

claim they traveled to Oborny’s home that night and first told her about the Purported

00287344-6 19

Codicil. (R. XXXIII, 1, 2 (R. XXI, 135-36; R. XX, 26)). Oborny claimed ignorance of the

Purported Codicil before this meeting. (R. VII, 156). During the exact time Steve Little

was talking on the phone to Joe Jeter, Oborny was present at the Lewis Auto dealership

where Steve worked having her car serviced. (R. VII, 295-305; R. XXVIII, 25-29; R.

XXIX, 606-607). Oborny was also in telephonic contact with Kathy Little before and after

Steve Little’s call to Joe Jeter on February 25, 2013. (R. XXVIII, 458-492; R. XXXII, 167).

Oborny claims she found the Purported Codicil the next day tucked away in a file

cabinet in Earl’s office. It was not in Earl’s desk with the unwitnessed January 23, 2013,

letter Oborny allegedly found first (on February 19, 2013), and it was not left with his

attorney, Joe Jeter, who had his 2010 Will. (R. VII, 157-59). A copy of the Purported

Codicil is appended at “D” of the Appendix. The date and “cc:” designations were added

after a typewriter ribbon change, a ribbon change that also appears in the body of the

January 23, 2013, unwitnessed letters. (R. VII, 213-16; R. XXXIII, V. 1, 38; R. XII, 47).

At trial, Oborny testified that Earl always used the Adler typewriter (the typewriter

used to type the Purported Codicil and January 23, 2013, letters), and that he typed a lot,

all the way up to his hospitalization. (R. VII, 90; R. XI, 119-20, 188). This testimony

conflicts with Oborny’s deposition testimony also introduced at trial in which she agreed

that Earl was really not typing anymore by the end of 2012. (R. VII, 203-205). It conflicts

with the documentary evidence presented at trial of known typing specimens of Earl

demonstrating the absence of Earl ever using the Adler typewriter, even when he was still

typing. (R. XXVIII, 493-503; R. XXIX, 648-651; R. XXX, 61-63; R. XXXI, 99-229, 265-

381, 384-617). Oborny also testified that she changed the ribbon on the Adler typewriter

00287344-6 20

while Earl was using it on January 22, 2013. (R. VII, 205-208). The January 23, 2013,

letter to Joe Jeter evidences a ribbon change made in the body of the letter before it was

complete. (R. VII, 216-17). Oborny offered no evidence to suggest that the January 23,

2013, letter was prepared on any date other than January 23, 2013. (R. VII, 274). Oborny’s

trial testimony of Earl typing on January 22, 2013, also conflicts with her deposition

testimony during which she first claimed no recollection of Earl typing anything or doing

particularly anything on January 22 or 23, 2013. (R. VII, 193-97, 201-213).

When Steve Little first contacted Joe Jeter on February 25, 2013, and explained

Earl’s alleged execution of the Purported Codicil at the Lewis Auto dealership on January

22, 2013, Joe Jeter’s first reaction was that it may be a “prank call,” and he called in an

associate to listen. (R. IX, 150-52). After receiving Steve Little’s call, Joe Jeter did not

immediately contact Oborny to confirm, but waited for Oborny to call him to see if she

knew Steve Little. Joe Jeter testified that Oborny did not even contact him until February

28, 2013, when she brought him a copy of the Purported Codicil. (R. IX, 153-155). Oborny

gave conflicting testimony over when she contacted Joe Jeter and gave him the letter. (R.

VII, 169-170; R. XXXII, 115 (R. XXV, 218, 443-444)). When Oborny did present the

Purported Codicil to Joe Jeter, Joe Jeter indicated that he “was mad as heck, and you know,

I just knew it was going to cause a donnybrook. And I mean I knew it was, it was going

to be a bad deal.” (R. IX, 157).

Steve Little testified that Earl bought a new car from him in 2011, and that,

thereafter, Earl would stop by the dealership on occasion to ask how to work his radio,

heater and air conditioner. According to Steve Little, Earl showed up at his dealership in

00287344-6 21

the early afternoon of January 22, 2013, to once again ask him how to work the heater in

his car. As the story goes, while Steve was assisting Earl with that, Steve’s wife, Kathy

Little, coincidently happened to drive into the dealership parking lot to visit Steve. Around

this time period, Kathy only visited Steve at work once per week or once every two weeks.

The meeting with Earl was coincidental according to Steve and Kathy Little, as no prior

arrangements had been made to meet. (R. VI, 121; R. XXXIII, 2 (R. XX, 27-31, 35-37, 42-

45)).

The Littles claimed that, after receiving Steve’s heater instructions, Earl asked Steve

and Kathy to witness the Purported Codicil for him. Earl, Steve, and Kathy then allegedly

went into Steve’s office, and Earl handed Steve and Kathy the Purported Codicil for

review. They claimed that they handed it back, and that Earl signed in front of them with

his own pen. They then immediately signed the document, using a different pen. Kathy

claimed that she noticed that she had not dated the witness signatures, so she dated the

document with yet a different pen. Earl then allegedly told Kathy and Steve not to tell

Oborny because he wanted it to be a “surprise,” walked out to his car, loaded his walker in

the back seat, and left. (R. VI, 121; R. XXXIII, 1-2 (R. XXI, 56-73; R. XX, 27-57)). Steve

and Kathy testified that no copies of the Purported Codicil were made between Earl’s

signing and their signing, and that the date and “cc:” designations at the bottom of the page

were present on the document when they signed it. (Id.).

No witnesses were produced by Oborny to corroborate Earl’s fortuitous trip to

Lewis Auto other than the video depositions of Kathy and Steve Little. On August 20,

2015, hours after having been interviewed by two FBI agents concerning the issues in this

00287344-6 22

case and having been served with an associated federal grand jury subpoena, Steve shot

Kathy in the chest killing her. Steve then turned the gun on himself and pulled the trigger.

(R. VII, 124-126; R. XXVIII, 87-101; R. XIII, 7-22; R. XXXI, 237-240; R. XXXII, 176-

180).

At deposition, Oborny initially denied any knowledge of how Earl wanted to leave

his property before his death. (R. VII, 236). Thereafter, documents were discovered in

Oborny’s paper shredder including copies of the Purported Codicil and a draft of something

similar to the Purported Codicil in Oborny’s handwriting. (R. VII, 238-48; R. XXXII, 92-

114). This reconstructed draft is marked “E” in the Appendix. The Court authorized

Emery Goad, a licensed private investigator, to reconstruct the documents in the presence

of Mr. Timothy Givan, Trust Officer of the Special Administrator, and any party-

representative who wanted to attend. (R. XII, 215-30). When confronted with the

shredding issue and her handwritten draft, Oborny attempted to change her testimony to

claim that Earl had dictated the letter to her, but that she had refused Earl’s request to type

it. (R. VII, 119, 234-48). Oborny’s changed testimony is inconsistent with Steve and

Kathy Little’s deposition testimony to the effect that Earl wanted his changed estate plan

kept secret from Oborny. (R. XXI, 56-73; R. XX, 27-57).

A photocopy of the Purported Codicil, missing the date and witness signatures but

bearing Earl’s alleged signature, was also discovered in the shredder. (R. XXXII, 101).

The existence of this photocopy would be impossible if Earl signed the Purported Codicil,

and then Steve and Kathy Little immediately witnessed it as the Littles testified. To this,

Oborny testified at trial that she shredded all copies of the Purported Codicil except the one

00287344-6 23

bearing Earl’s signature. (R. VII, 164; R. XXXII, 101). This testimony hopelessly

conflicts with the deposition testimony of Oborny also presented at trial in which she

specifically confirmed shredding that very document, the reconstructed copy of which is

marked “F” in the Appendix. (R. VIII, 11-20; R. XXVIII, 405-407).

In support of its claims that the Purported Codicil was neither typed nor signed by

Earl, FHSU Foundation presented the testimony of forensic document examiners, Jimmy

W. Smith and James Blanco. (R. XI, 5-42; R. XII, 70-155). They are in agreement that

Earl did not type or sign the Purported Codicil, and that the signature is a simulated forgery.

(Id.). There are material differences between the signature on the Purported Codicil and

other known signature specimens of Earl before and around the time the Purported Codicil

was allegedly executed. Known signatures of Earl near the time of the Purported Codicil

demonstrate that Earl was having trouble signing his name and difficulty with pen control.

(R. XI, 63). Earl could not have executed the signature found on the Purported Codicil

with the speed and fluency in which the signature was executed. The material differences

between the questioned signature on the Purported Codicil and other known signatures of

Earl are “extreme variances.” (R. XII, 108-110). Earl is “eliminated” as the writer of the

signature of the Purported Codicil, the highest degree of confidence in the area of forensic

document examination. (R. XII, 117; R. XXXI, 265-381).

Additional evidence was presented that Earl did not type the Purported Codicil. The

January 23, 2013, letter and the Purported Codicil materially differ with other known

typewritten specimens from Earl when he was still typing. The Purported Codicil and

January 23, 2013, letter deviate from Earl’s established habits of punctuation, date

00287344-6 24

construction, salutation, margins, spacing between paragraphs, closing and signature

location. The typewriter used to type the Purported Codicil was different than the one Earl

used when he still typed. (R. XXXI, 265-863; R. XXXII, 1-48; R. XI, 120). As it relates to

the shredded and reconstructed copy of the Purported Codicil bearing the purported

signature of Earl, the experts established that there was no toner below the purported

signature of Earl Field, indicating that the witness signatures of Steve and Kathy Little, the

date, and “cc:” designation were added after the copy had been made. The absence of the

witness signatures, date, and “cc:” designation was not due to the copier running low on

toner. (R. XI, 54; R. XII, 130-31, 147). The absence of these images impeaches Steve and

Kathy Little’s testimony. (R. XXXI, 382-383).

Arguments and Authorities

Issue I: The trial court correctly found that the Purported Codicil was neither typed

nor signed by Earl, and that Oborny did not prove due execution in

accordance with K.S.A. § 59-606.

A. Standards of Review

Oborny’s analysis of Issues I and III, leads the Court astray over applicable

standards of review by assuming, without support, that she met her burden of proof to

establish due execution of the Purported Codicil by Earl. She then launches into criminal

cases involving the crime of forgery in order to bolster an inapplicable heightened standard

that requires the appellate court to weigh the quantity and quality of the evidence. This is

incorrect. Oborny’s Issues I and III share the same standards and should be analyzed

together.

00287344-6 25

In reviewing a trial court’s findings, an appellate court is required to determine

whether substantial competent evidence supports the trial court’s findings. See In re Estate

of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000) (citing In re Estate of Bolinder, 19

Kan.App.2d 72, 74, 864 P.2d 228, rev. denied, 254 Kan. 1007 (1994)). “Substantial

evidence is evidence which possesses both relevance and substance and which furnishes a

substantial basis of fact from which the issues can reasonably be resolved.” In re Estate of

Farr, 274 Kan. 51, 58, 49 P.3d 415 (2002). It is “such legal and relevant evidence as a

reasonable person might accept as being sufficient to support a conclusion.” Id. (citing In

re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998)). In ascertaining evidentiary

sufficiency, an appellate court should not reweigh the evidence or assess credibility of

witnesses. Cresto v. Cresto, 302 Kan. 820, 835, 358 P.3d 831 (2015); see also Farr, 274

Kan. at 68 (“It is the factfinder’s function to determine the weight and credibility of the

witnesses. Appellate courts will not pass upon the credibility of witnesses or reweigh

conflicting evidence.”). An appellate court ordinarily presumes that the district court found

all facts necessary to support a judgment. Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199

P.3d 1251 (2009).

Oborny had the burden of proving that the Purported Codicil was prepared and

signed by Earl. “When a will is contested, the proponent has the initial burden of proving

a prima facie case for its validity, which requires proving that the testator or testatrix had

testamentary capacity and that the execution of the will complied with the requisite

statutory formalities.” Cresto, 302 Kan. at 831. Thus, Oborny was bound to prove that the

Purported Codicil: 1) was in writing; 2) was signed at the end by the testator; and, 3) was

00287344-6 26

attested and subscribed in the presence of the testator by two or more competent witnesses

who saw the testator subscribe or heard the testator acknowledge the will. See Cresto, 302

Kan. at 831; Farr, 274 Kan. at 61; K.S.A. § 59-606. As Oborny claimed the Purported

Codicil revoked Earl’s 2010 Will with respect to FHSU Foundation, she also bore the

burden of proving revocation. See In re Estate of Rickabaugh, ____ Kan. ____, 390 P.3d

19, 29 (2017); In re Estate of Grisell, 176 Kan. 209, 214, 270 P.2d 285 (1954).

By expressly finding that the Purported Codicil was not typed or signed by Earl, the

trial court made negative findings of fact to the effect that Oborny had failed to carry her

burden of proof. See id. (failure to prove revocation); Farr, 274 Kan. at 69 (finding that

will was not the product of undue influence); Cresto, 302 Kan. at 820, 847-48 (finding that

proponent of will failed to rebut presumption of undue influence). Because Oborny attacks

negative findings, she must convince this Court that the trial court committed “an arbitrary

disregard of undisputed evidence” or was driven by “some extrinsic circumstance such as

bias, passion, or prejudice.” Rickabaugh, 390 P.3d at 30; Farr, 274 Kan. at 69-70; Cresto,

302 Kan. at 847-48; Haneberg, 270 Kan. at 374. In absence of such a demonstration, the

appellate court should not nullify the trial court’s consideration and disbelief of Oborny’s

evidence. See Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, Syl. ¶¶ 1-5, 500 P.2d 39

(1972).

B. The trial court’s negative findings derive ample support from the law and evidence.

The Purported Codicil was prepared and signed by Oborny or someone at her

direction, other than Earl, despite the video deposition testimony of the alleged attesting

witnesses.

00287344-6 27

The testimony of attesting witnesses to a will may be overcome by any

competent evidence. [Citations omitted]. Such evidence may be direct, or it

may be circumstantial; and expert and opinion evidence is just as competent

as any other evidence. Indeed, where the signature to a will is a forgery, and

where the attesting witnesses have the hardihood to commit perjury, it is

difficult to see how the bogus will can be overthrown except by expert and

competent opinion evidence tending to show that the pretended signature is

not that of the testator, but spurious.

Baird v. Shaffer, 101 Kan. 585, 587, 168 P. 836 (1917). The direct and circumstantial

evidence presents a clear and compelling case that the Purported Codicil was not drafted,

typed, or signed by Earl.

The trial court had a direct opportunity to perceive and test the demeanor and

testimony of witnesses. The testimony Oborny presented to support her case, particularly

when viewed in the context of the other direct and circumstantial evidence, is simply

incredulous. Judge Lyle carefully and expressly commented on the credibility of Steve

and Kathy Little and Oborny throughout his findings and conclusions:

This Court has struggled to try to make sense out of the codicils discovered

by Wanda that she had no knowledge of, despite the shredded “dictated”

forerunner of the new codicil in her handwriting that had been shredded [by

Wanda] and declared she would not type for Earl because she did not think

it was “the right thing to do.”

. . . .

She [Wanda] originally stated that her car was serviced in the morning and

she left without any contact with Steve. Later it was shown that the service

on her car was completed in the early afternoon and the time shown as the

completion time of work on her vehicle was the same time that was recorded

on Steve’s call to Joe Jeter to tell Joe that Steve and Kathy had witnessed the

signing at Steve’s office on January 22, 2013.

. . . .

Despite contacts…by phone, the Little’s claimed they went to [Wanda’s]

home that evening…to inform Wanda about the will/codicil they had

witnessed. …Earl allegedly told the Little’s not to tell Wanda about the will

change…when, according to Wanda, she already knew after the dictation to

her, which she refused to type. …The Court has struggled with the dates of

00287344-6 28

the alleged codicils…that letter of 1-23-2013 was prepared and presented as

a will/codicil without the knowledge [by Wanda] that it would be found not

valid due to the lack of a notary or witnesses. (R. V, 19-23).

. . . .

Before Oborny’s meeting with Don Hoffman over the validity of the January

23, 2013, letter, Kathy Little sent one or more messages to Oborny wishing

her “good luck.”

. . . .

Oborny was in daily contact with Kathy Little between Earl’s death and

February 25, 2013, but claims that Kathy Little never told her about having

witnessed a will for Earl before the night of February 25, 2013…Oborny

admitted mentioning the January 23, 2013, unwitnessed letter to Kathy

within a day or two of finding it, and telling her that Joe Jeter had told her

that it was no good to pass property. Kathy Little denied memory of any

conversation with Oborny about Earl’s estate plan or anything about Earl at

this time. Steve Little’s testimony also conflicted with his wife’s in this

regard, and confirms that Oborny had told Kathy Little about her

conversation with Joe Jeter, during which Joe said that the January 23, 2013,

letter was no good because it lacked witness signatures. …At deposition,

Oborny testified that Joe Jeter and Don Hoffman each told her that the

January 23, 2013, letter was no good because it lacked witness signatures.

At trial, Oborny denied hearing from Joe Jeter or Don Hoffman the reason

the January 23, 2013, letter was no good to pass property.

. . . .

Oborny testified at deposition that she did not recall anything that she or Earl

specifically did at the office on January 22 or 23, 2013. To now claim that

Earl typed and created two January 23, 2013, letters that Oborny suggests he

prepared on the same date is not credible. This is particularly true

considering that, whoever prepared the two versions of the January 23, 2013,

letter would have had to make copies of a typewritten letter and to either

redact information on the copy before typing additional information on the

copy or to engage in other extraordinary measures to explain the existence of

each document. Oborny conceded that Earl would not have redacting or

typing information on the blank document and then using the typed document

as copy stock, and that Earl was not using whiteout or redaction tape on

January 22 or 23, 2013. (R. IV, 403-13).

Copies of the Purported Codicil that Oborny admitted she shredded after Earl’s

death were presented. One copy contained an image of the purported signature of Earl, but

did not contain images of witness signatures, dates or a carbon copy designation that appear

00287344-6 29

on the original. (See Appendix F). It is a factual impossibility for this information to be

missing unless the witness signatures, date, and carbon copy designation were added after

the copy was made, a scenario that is absolutely irreconcilable with the testimony of Steve

and Kathy Little. The uncontroverted fact that a ribbon change occurred before the date

and carbon copy designations were added to the Purported Codicil is yet additional

evidence that the document was not prepared or executed by Earl Field in the manner

claimed by Oborny and the Littles. (R. XXXII, 101; R. XXXI, 265-383).

The testimony Oborny offered that Earl Field secretly typed and signed the

Purported Codicil was conflicting and incredible. During her deposition, Oborny first

claimed that she knew nothing of any intention or plan by Earl to change his will until after

Earl died. However, when challenged with a shredded letter in her handwriting that

purported to leave Oborny one-half of Earl’s estate, Oborny changed her testimony to claim

that Earl had asked her to take dictation of the letter. (R. VII, 119, 234-48; R. XXXII, 103).

The two different versions of the January 23, 2013, letter that Oborny claims were prepared

by Earl and separately addressed to Joe Jeter and Oborny, could not possibly exist unless

someone performed complicated redaction, copying and additional typing, work that even

Oborny denied Earl performing on January 23, 2013. (R. VII, 109-10, 196-97, 201-5, 217-

28; R. XXXIII, V. 1, 39-41; R. XXXII, 162). Earl was nearly 99 years old and was in a

weakened and dying condition when the Purported Codicil was allegedly prepared and

signed. It was typed on a typewriter that Earl did not typically use when he still typed.

Every will that Earl and Nonie Field ever had drafted over several decades was done by

00287344-6 30

counsel. (R. VI, 98, 110-11; R. X, 140; R. XXVIII, 493-503; R. XXIX, 648-651; R. XXX,

61-63; R. XXXI, 99-229, 265-381, 384-617; R. XXXII, 57-61; R. XXVI).

According to Oborny, Earl did not approach one or more of the dozens of employees

and professionals who worked in or near his downtown Emprise Bank office to witness the

Purported Codicil. Instead, Earl traveled across town and north of Interstate 70 to see one

of Oborny’s friends, Steve Little, under the guise of needing help with his car heater. Steve

Little’s only connection to Earl was that Steve had sold him the same car a few years prior.

As the story goes, by chance, Steve’s wife Kathy, Oborny’s friend since high school,

arrived near that time to visit Steve. The Littles suggested that Kathy’s coincidental

appearance motivated Earl to request them to witness the Purported Codicil, after which

they claim they immediately signed it themselves, and then kept it a secret from Oborny

from January 22, 2013, until days after Earl’s funeral. (R. VI, 121; R. XXXIII, 2 (R. XX,

27-57), 1 (R. XXI, 56-73)). The frequency and nature of Kathy Little’s contact with

Oborny before and after Earl’s death do not credibly support Oborny’s theory or the

testimony of Steve and Kathy Little. (R. XXXII, 167-168).

There was a continuity of purpose running through Earl and Nonie’s prior wills that

is impossible to reconcile with the Purported Codicil. In the nine testamentary documents

executed by Earl prior to the alleged execution of the Purported Codicil, FHSU Foundation

received nearly all of the Fields’ estate. This overall estate plan was well known, and Earl

did not express an intention to change it. Instead, he confirmed and reaffirmed his intent.

(R. XXVI). Earl and Nonie loved FHSU, and they also, no doubt, loved the idea that

leaving their estate to a charitable organization that would mean that their estate would pay

00287344-6 31

zero estate/death tax. The uncontroverted evidence was that Earl was frugal, tax-averse,

and consistently took actions during his lifetime and in connection with his and Nonie’s

estate planning deliberately designed to avoid tax liability. (R. VIII, 203-6; R. IX, 279; R.

X, 26-28, 138-39, 143-45; R. XIII, 201-16, 221-22). The Purported Codicil is a marked

departure from the disposition of his property in every will Earl executed since 1987. (R.

XXVI). It would also render Earl’s estate taxable and liable for approximately $4 million

in estate tax because the Purported Codicil leaves 75% of a $20,000,000 estate to Oborny

and Joe Jeter. (R. VIII, 204-06; R. IX, 279). Earl and Nonie had never included either in

their estate plan, and each were paid for their services. (R. XXVI). To accept Oborny’s

position would also mean that Earl deliberately disinherited his close friends the Burgharts

and Nonie’s family, the Brecheisens. The uncontroverted evidence at trial was that Earl

would never have so disinherited his friends and family. (See, e.g., R. VIII, 76-78, 80-81;

R. IX, 33, 101, 221; R. X, 176; R. XXII, 263-64; R. XIII, 31-32, 36).

C. Oborny’s quantitative and qualitative attacks on the forensic evidence components of

the trial court’s findings miss the mark.

Oborny commits significant energy to an empty discussion of how many signatures

her expert looked at compared with how many were reviewed by FHSU Foundation’s

experts. For one thing, Oborny is factually incorrect. Mr. Blanco examined the same

signatures that Oborny’s expert examined. (R. XII, 109-110). More importantly, however,

the number of “known” signatures a handwriting examiner reviews in comparison to a

questioned signature does not dictate which expert should be believed. There is no

disagreement that the number of reliable known signatures is important to forensic

handwriting examination. However, of equal or greater importance is the ability to

00287344-6 32

examine the speed and fluency of known signatures a writer made proximate in time to a

questioned signature. A person’s signature changes over time and depends upon a writer’s

physical and medical conditions. How a writer may have signed something in 1980, for

example, may be markedly different than how the same writer could have signed his name

in 2013 while weak, shaky, and dying of metastatic cancer. (See, e.g., R. XI, 152-54, 219;

R. XII, 25-9, 115-16, 178-80). Oborny’s expert discounted and disregarded Earl’s age,

condition, and known writing in 2013. (R. XI, 154-55, 164-65; R. XII, 65-8).

At trial, Oborny did not object to the qualifications of Messrs. Smith and Blanco.

In fact, Oborny stipulated to the admission of their expert reports and curriculum vitae. (R.

IV, 378). All three handwriting experts testified in great detail, taking days of trial time.

(R. XI; R. XII). Judge Lyle considered Earl’s condition in January of 2013 and weighed

the testimony of all experts:

67. Earl’s treating physician, Dr. Randy Cook, testified as to Earl’s

condition before he was hospitalized. Dr. Cook confirmed that, even before

Earl suffered his fall and could not get up without assistance on or about

January 14, 2013, Earl was suffering from mucinous cystoadenoma, an

extremely rare and aggressive form of cancer. (T. Vol. 1, pp. 98, 110-111).

From January 14, 2013, forward, Earl was losing weight, anorexic, and

unstable. He was dying. (Id.). Earl’s condition was so poor that Joe Jeter

tried to get Earl to go to the doctor on January 25, 2013, but Earl refused to

go. (T. Vol. 4, p. 125).

. . . .

95. Oborny presented David Lee Parrett as her expert. Mr. Parrett

conceded that the signature on the Purported Codicil had been done with

speed, and that Earl’s signature near the time in question had deteriorated.

(T. Vol. 6, pp. 154-55, 164-65). Mr. Parrett testified that it was probable that

the person who signed the known specimens he relied upon also signed the

Purported Codicil. (T. Vol. 6, p. 163). “Probable,” in the parlance of forensic

document examination, is a relatively weak standard. (T. Vol. 7, pp. 117-

19). Mr. Parrett did not render opinions as to the apparent material

differences in formatting between known letters typed by Earl and the

Purported Codicil. (Petitioner’s Ex. 81). His testimony to explain the

00287344-6 33

absence of witness signatures on the shredded copy of the Purported Codicil

was unpersuasive, and his photographs of the reconstructed copy support the

opinions of the FHSU Foundation experts. (T. Vol. 6, pp. 180-85;

Petitioner’s Ex. 82).

. . . .

97. Compared with other known signatures of Earl, the signature

found on the Purported Codicil is clearer, more readable, and did not involve

as much movement as that demonstrated on other known signatures of Earl.

(T. Vol. 7, pp. 65-68). Considering this and all of the evidence, the Purported

Codicil and the January 23, 2013, letters were not typed or signed by Earl.

(R. IV, 401, 415-16).

Judge Lyle’s findings were based on an appreciation of all of the evidence and were the

product of active examination by the trial court of Oborny’s expert:

THE COURT: Well, okay, let me just ask this. That particular signature,

[on the Purported Codicil] compared to the other signatures that I’ve seen of

Earl, seems to be a little clearer and a lot more readable and not as much

movement around in this signature as any other signature that I see of him on

anything that I’ve seen. Is that something that should be talked about or is

that something you considered?

THE WITNESS: Yes. The signatures, unfortunately all of the signatures that

Mr. Smith had and that I had were copies. Come of them were

multigenerational copies. And that affected, for instance, like what you see

over here. That affects what we call the line quality, how well they look.

When I do an examination, I take the signatures and put them in

chronological order, and it can also depend on the, the class of signature.

. . . .

THE COURT: …But that document, that signature that’s up there [on the

Purported Codicil], is a lot more legible and a lot clearer and a lot more

readable than any other signature that I’ve seen of Earl Field and –

THE WITNESS: Yes.

. . . .

THE COURT: I’m not talking about the resolution or anything else. I’m

just talking about the fact when you look at Earl’s signature sometimes it is

so junky.

THE WITNESS: Yes.

00287344-6 34

THE COURT: That you can’t read it? Does that make sense? Junky is a

bad term, I’m not – it’s not used in your profession.

THE WITNESS: No, I understand what you are talking about.

THE COURT: But that signature [on the Purported Codicil] is something

very readable and very distinct, and I know that Earl O. Field signed that

document. A lot of those documents that I’ve looked at, and most of those

documents that I’ve looked at, I can’t tell that Earl O. Field, his full name, I

can’t read his name. I can do it in that one. And that’s about the only one

that I saw that I could do that in. And that, is that a concern?

THE WITNESS: It’s a consideration. (R. XII, 65-8).

At Earl’s advanced age and terminal condition, he was simply not signing documents in

the manner in which the Purported Codicil was signed. Far from deliberately disregarding

evidence or acting with bias, prejudice, or passion, Judge Lyle considered and tested the

evidence.

Oborny attacks the professional qualifications of Messrs. Smith and Blanco

suggesting that, unlike Mr. Parrett, Messrs. Smith and Blanco have no qualifications or

experience in their field. This is nonsense. The curriculum vitae and reports of all experts

are in evidence by stipulation. Mr. Parrett’s professional qualifications and experience in

the field are comparatively weak, and his scope of engagement was carefully and

deliberately limited. He could not explain the anomalies from comparing the Purported

Codicil, the January 23, 2013, letters, and the drafts and copies Oborny shredded. He did

not even attempt to reconcile the clear differences between how Earl historically and

habitually structured, organized, and formatted his letters and how the Purported Codicil

and January 23, 2013, letters were prepared. Messrs. Smith and Blanco addressed these

issues and were more helpful to the trial court. (Compare R. XXXIII, V. 3, 1-19 with R.

00287344-6 35

XXXI, 265-381, 384-863). See State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165 (2012)

(expert testimony should be helpful to fact finder).

Oborny’s attack against Mr. Blanco at pages 14-16 of her brief is a prime example

of trying to kill the messenger in reaction to bad news. Mr. Blanco explained all of the

circumstances associated with the 2006 professional witch hunt in California initiated by a

business competitor. (R. XII, 160). None of the attacks have caused Mr. Blanco to suffer

any trouble or restrictions in qualifying as an expert forensic document examiner or in

testifying before any state or federal courts, including those sitting in his home state of

California. (R. XII, 91-2). The complaints were all definitively resolved, and none dealt

with any concern or complaint over the methodology, analysis, equipment, or opinions

associated with Mr. Blanco’s work in this case. They largely dealt with Mr. Blanco’s use

of technology in 2006 that has now become commonplace in the industry and that Mr.

Parrett used in this case. (R. XII, 84, 202). Judge Lyle heard all of the evidence and could

assess the credibility and reliability of each expert.

Because of its devastating impact on her credibility and case theory, Oborny attacks

a document that was discovered in her paper shredder after she had testified at deposition

that she knew nothing about Earl’s estate plan or what he wanted or intended to do with

his money until after his death. The document, the admission of which Oborny stipulated,

is a reconstruction of strips forming an authentic copy of the Purported Codicil, except that

the copy has no images or toner below the forged signature of Earl. (R. VI, 11-13;

Appendix F). That is, the date, witnesses, and “cc:” designation do not appear on the copy

because they were not present when the image was made. (R. XI, 54; R. XII, 130-31, 47;

00287344-6 36

R. XXXI, 382-383). Other than a weak supposition by Mr. Parrett that there may have

been some toner below the signature, a notion that was soundly rebutted by Mr. Blanco

and demonstrated for the trial court by magnification and superimposition, Oborny had

little to say about the exhibit or how in the world it could have come to be. (R. XI, 182-

85; R. XII 130-32, 146-67 R. XXXI, 382-383). So, she claims the exhibit cannot be trusted

because Tim Givan questioned Emery Goad over leaving a gap between two of the

document shreds during a reconstruction that Oborny’s counsel was invited to attend.

(Petitioner’s Brief, pp. 12-13). Contrary to Oborny’s suggestion, Tim Givan had no

concerns over the order in which the shreds were arranged or the reliability of Mr. Goad’s

reconstruction. (R. III, 179-80). As it relates to this shredded document, Judge Lyle found:

94. As it relates to the shredded copy of the Purported Codicil

bearing the purported signature of Earl, FHSU Foundation’s experts opined

that there was no toner below the purported signature of Earl Field, indicating

that the witness signatures of Steve and Kathy Little as well as the date were

added after the copy had been made. The absence of the witness signatures,

date, and “cc:” designation was not due to the copier running low on toner.

(T. Vol. 6, p. 54; T. Vol. 7, pp. 130-31, 147). The absence of these images,

clearly demonstrated in Respondents’ Exs. 196 and 196A, is an impossibility

if Steve and Kathy Little’s testimony is to be believed. (R. IV, 415).

Oborny offers little direct explanation about this shredded document. This is because

Oborny tied herself into a Gordian Knot over the document, as specifically found by Judge

Lyle:

91. A photocopy of the Purported Codicil, missing the date and

witness signatures but bearing Earl’s alleged signature, was also discovered

in the shredder. (Respondents’ Ex. 212-D). …To this, Oborny testified at

trial that she shredded all copies of the Purported Codicil except the one

bearing Earl’s signature. (T. Vol. 2, p. 164; Respondents’ Ex. 212D). This

testimony hopelessly conflicts with the deposition testimony of Oborny also

presented at trial in which she specifically confirmed shredding that very

document. (T. Vol. 3, pp. 11-20; Respondents’ Ex. 69). (R. IV, 413).

00287344-6 37

Oborny acknowledged her conflicting testimony at trial (R. VIII, 11-20). Oborny’s video

deposition testimony, in which she specifically and unconditionally confirmed shredding

that very document, was also played in open court on March 8, 2016. (R. XII, 69-70; R.

XXVIII, 405-7; R. XXXII, 115 (R. XXV, 502:4-519:8)).

Oborny’s criticisms at pages 18-19 of her brief that Judge Lyle was “arbitrary” in

finding that Earl did not type the Purported Codicil or the unwitnessed January 23, 2013,

letters are misplaced. Part of the documents, the admission of which Oborny stipulated,

were pages from a book authored by David Ellen, a renowned forensic document examiner,

addressing the means document examiners use to identify typists by considering habits

from previously typed material. Pages from that book relied upon by Mr. Blanco are in

evidence. (R. XXXI, 265-381). Mr. Blanco identified that authoritative source and

described the process he used to eliminate Earl as the typist of the questioned documents.

Mr. Blanco also identified the relevant ASTM standards that he relied on in forming his

opinions. (R. XII, 122-128, 211-14).

In eliminating Earl as the typist, the trial court went further than the experts. Judge

Lyle found notable evidence from the Burgharts and others that Earl was not even typing

anymore because of his advanced age. (R. IV, 417; R. X, 46-7). Earl had always consulted

with counsel and had never typed his own will. (R. IV, 418; R. XXVI; R. XXVIII, 114-

230; R. X, 47-8). Oborny was the only witness who testified at trial that Earl was typing in

January 2013, and this was after she had testified at deposition that Earl was really not

typing anymore by the end of 2012, and that she did not recall Earl typing anything on

January 22 or 23, 2013. (R. IV, 410-11; R. VII, 193-95, 201-13). The “Adler typewriter”

00287344-6 38

that everyone agreed was used to type the Purported Codicil and the unwitnessed letters

was not used by Earl to type letters and checks while he was still typing. All of the

typewriters in the office were admitted into evidence, and a sample was taken that clearly

shows that documents, known to have been typed by Earl, were typed on a newer electronic

typewriter that applied a horizontal base at the bottom of the numeral “1.” The Adler types

that numeral without any base. (R. IV, 412; R. IX, 71-73, 79, 98-101; R. XXVIII, 493-504;

R. XXIX, 648-651; R. XXX, 61-63; R. XXXI, 99-229, 263-381, 384-617; R. XXXII, 57-

61). Numerous examples of typewritten letters and documents known to have been

prepared by Earl were presented, and even Oborny was compelled to admit that the

Purported Codicil deviated in several material respects from how Earl typically prepared

and formatted typewritten documents. (R. IV, 418; R. XXVIII, 493-504; R. XXIX, 648-

651; R. XXX, 61-63; R. XXXI, 99-229, 263-381, 384-617; R. XXXII, 115 (R. XXV, 583-

608)).

D. The trial court’s findings and conclusions that the Purported Codicil was not executed

in accordance with K.S.A. § 59-606 are sound.

Oborny’s proof of due execution depended on the trial court believing her and her

close friends and participants in the Purported Codicil, Steve and Kathy Little. The trial

court simply did not believe them, and that is within its province.

Steve and Kathy Little were longtime friends of Oborny since high school.

Timelines of undisputed text and telephonic communications was presented to show the

consistent and numerous communications between Oborny and the Littles before Earl’s

death and how that contact significantly increased after Earl’s death and Oborny’s alleged

discovery of the Purported Codicil. (R. XXXII, 163, 167-168). The trial court

00287344-6 39

understandably struggled with the story painted by Oborny and the Littles. It struggled

with Oborny’s attempt to change her testimony on several material issues. It struggled that

Oborny first claimed that she was not at Steve Little’s place of employment when he first

called Joe Jeter on February 25, 2013, when the service records clearly established her

presence. (R. V, 20). It struggled with the Littles’ testimony about Earl wanting things to

be a surprise, considering Oborny’s shredded handwritten notes that she claims Earl had

dictated to her days before leaving her half of his estate. (R. V, 21). The proposition that

Steve and Kathy Little would drive to Oborny’s house late at night on February 25, 2013,

to finally reveal the secret witnessing of the January 22, 2013, Purported Codicil insults

logic and reason. The Littles had been in constant prior telephonic and text contact with

Oborny, including prior discussions about Joe Jeter and Don Hoffman’s rejection of the

unwitnessed letter. (R. V, 20). How Earl would want and choose to disinherit his close

friends, the Burgharts, Nonie’s family, the Brecheisens, or “favorite subject,” FHSU, was

conspicuously unexplained. (R. IV, 390, 401).

The trial court found notable that Oborny had been fired as a bank employee for

bouncing checks and misappropriating money. Oborny stole money from a class reunion

fund. (R. V, 19). Significant volumes of evidence were presented raising serious concerns

over how Oborny took advantage of Earl and his money, both while living and after he

died, by engaging in deceitful conduct to accomplish her aims. (See R. IV, 397-99, ¶¶ 55-

60).

After hearing testimony from Earl’s long-time secretary and Oborny’s predecessor,

Janet Klaus, the trial court noted the curious inconsistency as to the standard business

00287344-6 40

practices and conduct Oborny claimed Earl followed. Ms. Klaus worked with Earl longer

than Oborny had. From 2000 to 2008, Janet never once took dictation or typed a letter for

Earl. After the draft Purported Codicil in Oborny’s own hand was discovered in her

shredder, Oborny testified that Earl regularly asked her to take dictation. (R. VII, 49-64).

While Earl was dying in the nursing home, Oborny claims that he hurried her to fill

out and sign a $100,000 check drawn on his bank account as a “birthday gift.” Oborny

dated the check February 11, 2013, and signed it, but it was not deposited until February

25, 2013, six days after Earl’s death. (R. VII, 84-85; R. VIII, 37-38). It is hard to

understand why Earl would be feeling the urgency claimed by Oborny if he had signed the

Purported Codicil just days earlier leaving Oborny one-half of a $20 million estate.

Before Oborny met with Don Hoffman to discuss the validity of the unwitnessed

letter, Kathy Little texted Oborny wishing Oborny “good luck.” (R. VII, 291-92; R.

XXVIII, 71-82). Far from keeping secrets for a man they barely knew, the Littles were

working with and supporting Oborny in her dealings with legal professionals before and

after Joe Jeter and Don Hoffman rejected the January 23, 2013, letter because it was not

witnessed. The improbability of Earl’s appearance at the Lewis Auto dealership on January

22, 2013, to have Steve Little teach him again how to run his heater and, while he was at

it, to have Steve and Kathy witness Earl’s Last Will and Testament is manifest. The Littles

were practically strangers to Earl. Based on Kathy Little’s testimony of how often she

went to the dealership to see her husband, the probability range of Earl catching both Steve

and Kathy Little at the dealership on that day is 10-20%. (R. XXXIII, 1 (R. XXI, 27-31,

35-37, 42-45)).

00287344-6 41

During direct examination at deposition, moreover, Kathy Little expressed

difficulty remembering many of the events and conversations, claiming that her poor

memory was the result of taking medicine or other health-related conditions. However, on

cross-examination by her counsel after a short break, Kathy Little’s memory problems

dramatically disappeared and she became sharp and focused. None of this was lost on

those in the courtroom who watched the video testimony. (R. XXI).

The Little/Oborny story is further belied by the testimony of Oborny’s husband,

Paul Oborny. Paul testified that he and his wife never kept any secrets from each other,

particularly those that might impact their financial circumstances. (R. XIII, 128-29).

Despite this, Paul testified that his wife never shared or disclosed to him, before or after

Earl’s death, anything about the hundreds of thousands of dollars in gifts that Oborny

claimed Earl had made to her; about joint brokerage and bank accounts that Earl allegedly

set up for her; about allegedly taking dictation from Earl in January of 2013 to leave Oborny

half of his estate; about Oborny’s alleged discovery of the Purported Codicil or the January

23, 2013, letters; about Oborny’s shredding of documents; about Steve and Kathy Little’s

alleged meeting Oborny in the late hours of February 25, 2013, at the home of Paul and

Wanda Oborny; about Oborny’s conferences with Joe Jeter and Don Hoffman about the

January 23, 2013, unwitnessed letter being no good; and, other issues. (R. XIII, 128-29,

158-68). There is no reasonable explanation for this alleged deliberate secrecy over life-

changing events in the lives of Paul and Wanda Oborny, and Oborny did not even make an

attempt to explain these and other evidentiary anomalies.

00287344-6 42

Oborny goes to great lengths to discount any relationship with the murder/suicide

of Steve and Kathy Little and complains over the trial court’s admission of related

evidence. Oborny acknowledged the hearsay exceptions with respect to the coroner reports

for Steve and Kathy Little, and those reports were admitted. (R. VI, 124-126; R. XXVIII,

92-101). Those reports show cause of death and lack of relationship to any terminal health

condition. Investigating officer Jeff Ridgeway testified and discussed his investigative

report. (R. XXXII, 176-180; R. XIII, 7-15). He confirmed that a federal grand jury

subpoena was found at the Little residence; that it was similar to a grand jury subpoena

issued to Lynda Burghart; and, that FBI Special Agents, Becky Martin and Tom Entz, had

been at the Little residence on August 20, 2015, at around 11 a.m. to interview the Littles.

(Id.). Respondents’ Ex. 212, admitted by stipulation, shows that the same FBI Special

Agents had opened and reviewed the shredded documents involved in this case. (R. IV,

378; R. XXXII, 92-114). Oborny offered no affirmative evidence to explain Steve and

Kathy Little’s murder/suicide, despite knowing that it would be at issue. There is no legal

prejudice to Oborny, and the reasonable inference from the evidence is that the

murder/suicide bore relation to the alleged witnessing of the Purported Codicil. The trial

court certainly did not abuse its discretion in admitting the uncontroverted circumstances

of Steve and Kathy Little’s demise. See City of Overland Park v. Cunningham, 253 Kan.

765, 772, 861 P.2d 1316 (1993); Hurlbut v. Conoco, Inc., 253 Kan. 515, 531, 856 P.2d

1313 (1993); State v. Huddleston, 298 Kan. 941, 960-61, 318 P.3d 140 (2014). Those

circumstances are simply part of the larger and comprehensive body of evidence relied on

00287344-6 43

by the trial court to conclude that the Oborny/Little version of events was simply not

credible.

In short, there is more than sufficient expert and circumstantial evidence to support

Judge Lyle’s finding that Earl did not type or sign the Purported Codicil. Oborny has failed

to demonstrate otherwise or to establish that Judge Lyle arbitrarily disregarded undisputed

evidence or acted with bias, passion, or prejudice.

Issue II: Earl’s testamentary capacity was not raised as an issue at trial and

should not be considered on appeal.

At pages 20-23 of her brief, Oborny raises testamentary capacity to argue evidence

that would support the trial court’s finding of testamentary capacity. Raising this issue is

unnecessary and self-destructive.

Oborny did not identify Earl’s testamentary capacity as an appellate issue in her

September 1, 2016, Docketing Statement. This omission is unsurprising because

testamentary capacity was not raised as a contested issue for trial. (R. III, 169-206).

Testamentary capacity should not be reviewed on appeal. See Supreme Court Rule

6.02(a)(5); Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (an issue not raised

before the trial court should not be raised on appeal).

The trial court’s determination of basic testamentary capacity is not inconsistent

with its other findings and conclusions as suggested by Oborny. Earl’s capacity was found

to bolster the incredulity of Oborny’s case:

The Court has struggled with the dates of the alleged codicils. The

Court has concluded that the will/codicil signed by the Little’s had to be

dated prior to the unwitnessed will/codicil that was found earlier presented

to and rejected by both Joe Jeter and Don Hoffman due to no witnesses or

notarization of Earl’s signature. To think that Earl, who was of sound mind

00287344-6 44

on January 22 and January 23, 2013, would have had a will/codicil prepared

and signed by the Little’s, then the very next day prepare and sign a letter to

his attorney that has basically the same information as the codicil/will signed

the day before in front of witnesses. Why would that 1-22-2013 will/codicil

not have been mentioned in the 1-23-2013 letter? This Court concludes that

it was not mentioned by Earl in that letter because it did not happen. That

letter of 1-23-2013 was prepared and presented as a will/codicil without the

knowledge that it would be found not valid due to the lack of a Notary or

witnesses.

Earl and Nonie had dealt with making and changing wills several

times during their lives. Had Earl really changed his will and had it witnessed

on 1-22-2013, he would have mentioned that in the writing on 1-23-2013 so

that Joe Jeter and everyone else would know that he had changed his

will/codicil. (R. V, 21-22).

That Earl maintained an appreciation of commitment and truth during his dying days

does not help Oborny. When Earl was interviewed by Sandy Dinkel, the nursing home’s

social worker, Earl told Ms. Dinkel that his proudest experience was having been in

business with Nonie, and that his favorite subject was FHSU. Earl even chose “FHSU

Tigers” as his password for disclosure of confidential medical information by the nursing

home. (R. X, 84-87, 90). FHSU President, Dr. Edward Hammond, visited Earl at the

nursing home on February 9, 2013. During that visit, Earl told Dr. Hammond that nothing

had changed in his will, that Joe Jeter had Earl’s will and that FHSU Foundation “was

going to get it all.” According to Oborny’s theory, Earl lied to Dr. Hammond, his trusted

friend of many years, because Earl had really changed his mind just days earlier, typed

letters leaving 75% of his and Nonie’s legacy to his bookkeeper and lawyer, and hid the

letters from everyone. (R. XII, 259-65, 281; R. IX, 156; R. XXVIII, 6-14). Dr. Hammond’s

testimony was undisputed, and Oborny did not suggest that Earl was incompetent or

untruthful when he talked to Dr. Hammond.

00287344-6 45

Earl’s capacity is not a reviewable issue. However, the evidence bearing on Earl’s

capacity does not strengthen the shield Oborny employs to protect the Purported Codicil;

it sharpens the sword against it.

Issue III: The trial court correctly found that Earl and Nonie had a common and

contractual estate plan.

A. Standards of Review

The existence of a contractual will involves questions of fact, the determination of

which must be based on competent evidence. See In re Estate of Chronister, 203 Kan. 366,

Syl. ¶ 1, 454 P.2d 438 (1969); Garrett v. Read, 278 Kan. 662, 670, 102 P.3d 436 (2004),

disapproved on other grounds by, Nelson v. Nelson, 288 Kan. 570, 205 P.3d 715 (2009).

A contract to dispose of property in a particular manner at death can be enforced by a third-

party beneficiary of that contract. Eikmeier v. Eikmeier, 174 Kan. 71, 80-81, 254 P.2d 236

(1953). Although a contractual will can be revoked, the will can nonetheless be enforced

as a contract against the estate of the testator breaching it. Reznik v. McKee, 216 Kan. 659,

Syl. ¶ 2, 534 P.2d 243 (1975). The contract must be definite as to the parties and the subject

matter. See id. at Syl. ¶ 4. The fact that parties have separate wills and the wills do not

expressly state that they are contractual or mutual is not determinative of whether a contract

existed. Garrett, 278 Kan. at 668-69. Neither is the fact that a testator may revoke or

amend his will. See Reznik, 216 Kan. at 678-79.

Extrinsic evidence is admissible in connection with the instruments

themselves to show that wills which are reciprocal in their bequests were

executed in pursuance of an agreement between the testators,

notwithstanding the absence of recitals in the wills designating such an

agreement. …The rule that parol evidence is never admissible to change or

vary the terms of an unambiguous will does not render inadmissible extrinsic

00287344-6 46

evidence that a will was executed pursuant to a compact with another

person… .

Eikmeier, 174 Kan. at 77 (citation omitted). The agreement and the terms of the agreement

may be ascertained from the documents, written communications, the actions and

declarations of the parties, testimony of other persons, and evidence of all the surrounding

facts and circumstances. Garrett, 278 Kan. at Syl. ¶ 4. The manner in which testamentary

instruments are executed may provide evidence that the parties were in agreement as to the

disposition of their estates, and separate estate planning instruments of a married couple

can be considered in determining whether the separate instruments were part of a common

estate plan made pursuant to a contract between a husband and a wife. Reznik, 216 Kan.

at Syl. ¶ 11, 672-73.

B. The evidence compels the conclusion that Earl and Nonie had an agreement as to the

disposition of the wealth they built together.

Earl and Nonie’s estate plans were reciprocal and consistent. Earl communicated

both of their desires when communicating with Joe Jeter. The gift to FHSU Foundation

was split equally between Earl and Nonie’s passions, and would only occur after both of

their deaths, as the surviving spouse received all the deceased spouse’s property under their

estate plan. Earl and Nonie revoked and executed their estate planning documents at the

same time. They entrusted each other to serve as executors for their respective estates. (R.

IV, 206-8; R. XXVIII, 114-230; R. XXVI; R. XXVII, 6-13). When Earl and Nonie decided

to give Vincent Burghart a life estate, Earl suggested testamentary language to his attorney

that “it is the wish, will and desire of Earl O. Field and Nonie M. Field, Hays, Kansas,

that Vincent Burghart have and receive a life estate in the following land… .” (R. XXXI,

00287344-6 47

236). Since 1987, Earl and Nonie left their entire residuary estates to a common FHSU

scholarship fund to be known as the “Earl O. and Winona M. Field Endowment and

Scholarship Fund.” Even after Nonie died, Earl remained true to her and their basic estate

plan. (R. XXVIII, 137-253; R. XXVI; R. XXVII, 6-13; R. IX, 208). In explaining why he

did not want his estate to be used for anything other than scholarships, Earl told Tim

Chapman in February of 2010, “that just didn’t fit his long range goals and intent he and

Nonni [sic] talked about…He made it clear this is what she wanted and he wasn’t going to

change it now.” (R. XXIX, 614-615). No witnesses were presented to controvert evidence

of Earl and Nonie’s mutual promises and the history of their estate plan. And, the evidence

was uniform that Earl would never have violated any promises or commitments he made

to Nonie over their 71-year marriage. (R. VI, 112-13; R. VIII, 78-80; R. IX, 108; R. X, 29,

39-42, 83-5, 120, 132, 152; R. XII, 244-45, 252; R. XIII, 37-8, 52, 272-73). Until Earl and

Nonie’s home was sold many months after Earl’s death, Nonie’s purse and pillow lied in

state on Earl’s bedroom dresser where Nonie had left them before her fateful and final trip

to the hospital in October of 2009. (R. XIII, 36-9; R. XXXI, 245).

Earl and Nonie’s agreement is embodied in their 2009 wills that are mirror images

in all material respects as to the disposition of their property. They contained the same

complicated conditions and restrictions for the endowment to FHSU Foundation, and

imposed the same contingency in the event FHSU ceased to exist. Except with respect to

specific testamentary gifts to the Burgharts and Brecheisens, the entirety of Earl and

Nonie’s lifetime wealth was to pass to FHSU Foundation to fund scholarships for FHSU

students. (R. XXVIII, 217-230). Earl clearly incorporated the agreement embodied in the

00287344-6 48

2009 and earlier wills into the 2010 Will after Nonie died. (R. XXVI; R. XXVIII, 6-13).

To ensure that Nonie’s mineral interest in the Brecheisen land would return to the

Brecheisens, he engaged Joe Jeter to complete a determination of descent proceeding to

clear the title so that he could specifically devise it to the Brecheisens outside of his

residuary estate. (R. IX, 164-65).

FHSU Foundation is a third-party beneficiary of the testamentary agreement

between Earl and Nonie Field, and has standing to enforce that agreement against Earl’s

estate and against Oborny. Even if it had been duly executed by Earl, the Purported Codicil

is ineffective to pass 75% of Earl and Nonie’s lifetime wealth to Oborny and Joe Jeter. The

2010 Will manifests the estate plan that Earl would have expected Nonie to follow had he

died first, and the trial court correctly found that it embodies the contractual estate plan of

Earl and Nonie. (R. IV, 429).

C. Oborny’s “cat manure” reference is misdirected.

At page 34, Oborny refers to a “cat manure” reference to Dr. Edward Hammond by

Nonie to suggest a cataclysmic change in perspective by Earl and Nonie towards FHSU

and its Foundation. Oborny’s entertaining proposition unravels upon closer inspection.

Nonie equated Dr. Hammond’s intelligence to “cat manure” in a 2003 note to her friend,

Lynda Burghart, when Dr. Edward Hammond and his wife, Vivian, were in the middle of

their divorce. Nonie was good friends with Vivian, and Earl and Nonie were like family

to the Hammond family. (R. IX, 42, 319-21; R. XII, 244-52). In 2005, years after the “cat

manure” reference and the Hammonds divorced, Earl and Nonie executed codicils to their

2003 Wills reaffirming the distribution of their estates to FHSU Foundation. Earl and

00287344-6 49

Nonie executed mirror-image wills that did the same in 2009. (R. XXVIII, 211-230). Even

after Nonie’s death on October 2, 2009, Earl signed his 2010 Will reaffirming the common

estate plan with his wife and their endowed scholarship fund. (R. XXVII, 6-13). Ten days

before he died, moreover, Earl told Dr. Ed Hammond that FHSU was getting it all, and that

his will was with Joe Jeter, not secretly tucked away in some secret file drawer as Oborny

now suggests. (R. XII, 259-65, 281; R. IX, 156). In short, Nonie’s emotional and earthy

reference to how she felt about Ed and Vivian Hammond’s divorce in 2003 did not change

Earl and Nonie’s commitment to each other or to FHSU Foundation.

Issue IV: The trial court correctly determined that, even had the Purported

Codicil been duly executed, probate of same is barred by common law

and statutory undue influence.

A. Standards of Review

Common law undue influence implicates whether Oborny occupied a confidential

relationship with Earl, and whether suspicious circumstances are present. The trial court

found the existence of both, so Oborny bore the burden of showing that the Purported

Codicil was not the result of undue influence. Cresto, 302 Kan. at 829, 848. Statutory

undue influence, codified at K.S.A. § 59-605, implicates whether Oborny wrote or prepared

the Purported Codicil. The substantial competent evidence supports the trial court’s

findings that Oborny did just that. See Haneberg, 270 Kan. at 374.

B. Common law undue influence.

Common law undue influence is generally deceit, coercion, compulsion or

constraint that overcomes the testator’s power of resistance and causes the testator to adopt

the will of another. See Matter of Ziegelmeier's Estate, 224 Kan. 617, 622, 585 P.2d 974

00287344-6 50

(1978). Generally, there must be evidence that the person accused exerted undue influence,

and a direct relationship must exist between the compulsion and testamentary act.

Haneberg, 270 Kan. at 375. “But the very nature of a person exerting undue influence in

a confidential relationship makes proving that situation with direct evidence a rarity; it is

more commonly proved by circumstantial evidence.” Cresto, 302 Kan. at 833 (internal

citation omitted). When a contestant shows that the person accused of exercising undue

influence occupied a confidential relationship with the testator, and that suspicious

circumstances surrounded the execution of the testamentary act, the burden of proof shifts

to the proponent to show the testamentary act was not the result of undue influence. In re

Brown's Estate, 230 Kan. 726, 732, 640 P.2d 1250 (1982). These questions of fact should

be determined on a case-by-case basis. See, e.g., Cresto, 302 Kan. at Syl. ¶ 4.

Kansas appellate courts have been reluctant to adopt an express definition of

“confidential relationship.” Farr, 274 Kan. at 72. It has been held that a “confidential

relation exists whenever trust and confidence is reposed by the testator in the integrity and

fidelity of another.” See Brown, 230 Kan. at 732. It is undisputed that Oborny occupied a

confidential and fiduciary relationship with Earl. Oborny assisted with Earl’s personal and

business affairs, had access to all of his personal and financial records, was an authorized

signer on his bank accounts, and paid his bills. She was his employee who Earl trusted to

handle his money, to pay herself her wages, and to prepare information for his accountant

for tax returns. Oborny had keys to Earl’s office and home. She even signed checks for

the benefit of her and her family drawn on Earl’s bank accounts. (See, e.g., R. VII, 60-62,

00287344-6 51

96-97). Oborny concedes her confidential relationship and fiduciary duties at page 36 of

her brief.

Kansas courts have declined to adopt a precise definition of suspicious

circumstances. Farr, 274 Kan. at 72. It is recognized:

[A]ll relevant factors may be considered, including: (1) the extent to which

the donor was in a weakened condition, physically, mentally, or both, and

therefore susceptible to undue influence; (2) the extent to which the alleged

wrongdoer participated in the preparation or procurement of the will or will

substitute; (3) whether the donor received independent advice from an

attorney in preparing the will or will substitute; (4) whether the will or will

substitute was prepared in secrecy or in haste; (5) whether the donor's attitude

toward others had changed by reason of his or her relationship with the

alleged wrongdoer; (6) whether there is a decided discrepancy between a new

and previous wills or will substitutes of the donor; (7) whether there was a

continuity of purpose running through former wills or will substitutes

indicating a settled intent in the disposition of his or her property; and (8)

whether the disposition of the property is such that a reasonable person would

regard it as unnatural, unjust, or unfair, for example, whether the disposition

abruptly and without apparent reason disinherited a faithful and deserving

family member.

Restatement (Third) of Property: Wills & Donative Transfers § 8.3, pp. 147-48, subcmt. h.

(2003). What may be considered suspicious under one set of facts, may not be suspicious

under another. Farr, 274 Kan. at 72.

Even had Oborny been able to prove that Earl, in fact, executed the Purported

Codicil, the circumstances surrounding its execution were suspicious. Earl was nearly 99

years old and dying. Oborny wrote a draft of the Purported Codicil in her hand that she

shredded. (R. XXXII, 103). She had a history of collection suits, poor financial habits,

and misappropriation of money that did not belong to her. She took or received from Earl

hundreds of thousands of dollars during his lifetime and upon his death through

00287344-6 52

transactions that are questionable. (R. IV, 396-99). Although Earl used counsel frequently

and had the means to pay for counsel, Earl did not use counsel with regard to the Purported

Codicil according to Oborny’s theory.

According to Oborny, instead of approaching his friends, lawyers, accountant,

banker, or dozens of other employees or notaries in and around his downtown Emprise

Bank office, Earl allegedly traveled across town north of Interstate 70 to see one of

Oborny’s friends, Steve Little. Steve’s only connection to Earl was that Steve had sold

him a car a few years prior. In a sheer stroke of luck, Steve’s wife Kathy, Oborny’s

longtime friend, arrived while Steve was telling Earl how to work his car heater, after which

Earl asked them to witness his will. Earl allegedly told the Littles to keep their execution

meeting a secret, and hid the Purported Codicil in a file cabinet where no one might find

it. (R. IV, 408, 411-12). Even under Oborny’s theory, the Purported Codicil was prepared

in secret.

The Purported Codicil is alien to the disposition of property found in every will Earl

executed since 1987, and would render the estate taxable and liable for millions in estate

tax, something that Earl’s friends would “make him roll over in his grave.” It leaves 75%

of a $20,000,000 estate, to a part-time employee and Earl’s attorney, neither of whom had

ever been included as beneficiaries in any of Earl and Nonie’s estate plans. It means that

Earl deliberately disinherited his close friends and family, and intended Joe Jeter, Oborny,

and FHSU Foundation to jointly own land and mineral interests Earl owned and had

promised to the Burgharts and Brecheisens. (R. IV, 381-82, 384-92). The disposition under

the Purported Codicil is unusual and unnatural.

00287344-6 53

Oborny’s self-serving statements about references by Earl to her as being “like a

daughter” certainly do not decide the case. Earl made kind gestures like this to various

people. For example, Earl’s doctor, Dr. Cook, testified that Earl said Dr. Cook was like

“the son he never had” after Earl had gifted him a 16-gauge shotgun. (R. VI, 99, 108-9).

The love and affection that Earl and Nonie felt and expressed to others close to them like

their housekeeper, Micki Quint, the Burgharts, and the Brecheisens, was palpable. (See,

e.g., R. XIII, 29-43). Nonie wanted Earl to fire Oborny because she thought Oborny was

after their money. (R. IX, 315-16; R. X, 14-15, 32-3, 54-8).

Oborny bore the burden of showing that the Purported Codicil was not the result of

undue influence. Oborny failed to do so, and a trial court finding that a party did not rebut

the presumption cannot be overturned absent “arbitrary disregard of undisputed evidence

or some extrinsic consideration such as bias, passion or prejudice.” See Cresto, 302 Kan.

at Syl. ¶ 7, 829, 848.

C. Statutory undue influence.

The same result holds with respect to K.S.A. § 59-605 statutory undue influence.

That section invalidates “[a]ny provision in a will, written or prepared by another person,

that gives the writer or preparer” more than the writer or preparer would receive through

intestacy, unless there is a showing that the “testator had read or knew the contents of the

will and had independent legal advice… .” Oborny, or someone acting at her direction

(other than Earl), prepared and signed the Purported Codicil. It purports to leave her

millions more than the zero she would receive through intestacy. There has been no

credible showing that Earl knew the contents of the Purported Codicil or had any

00287344-6 54

independent legal advice. Quite to the contrary, the clear evidence is that, as late as

February 9, 2013, Earl believed that his last will was in Joe Jeter’s possession, and the only

last will in Joe’s possession at that time was the 2010 Will. (R. XII, 259-65, 281; R. IX,

156). An appellate court should not reweigh the trial court’s credibility determinations,

and there is substantial competent evidence to support the trial court’s alternative findings

and conclusions concerning statutory undue influence.

Issue V: The trial court correctly found that the elements of promissory estoppel

and oral contract to devise property were established by the evidence.

Alternative theories advanced by the respondents at trial included promissory

estoppel and oral contract. On the first day of trial, Oborny stipulated to the relief requested

by the Burgharts based on their argument that Earl and Nonie had contracted to leave

Vincent, Tim, and Lynda Burghart the life estate in the property they farmed for Earl. (R.

IV, 134-38). This stipulation was wholly contrary to Oborny’s previous position that the

Purported Codicil revoked Earl’s 2010 Will and the life estate devise to the Burgharts along

with it. (R. II, 383-87; R. III, 1-28). For Oborny to assert on appeal that the trial court had

no basis to find and conclude that Nonie and Earl had contractually committed their

farmland to the Burgharts conflicts with Oborny’s stipulation and offends principles of

judicial estoppel. See, Estate of Belden v. Brown County, 46 Kan.App.2d 247, Syl. ¶¶ 3-4,

261 P.3d 943 (2011).

Notwithstanding Oborny’s stipulation, evidence was presented concerning the oral

commitments and promises Nonie and Earl had made over the years to the Burgharts and

to FHSU Foundation. The trial court analyzed the evidence and the applicable law and

00287344-6 55

concluded that the evidence was sufficient to establish the claims. (R. IV, 434-37). The

trial court was correct in so concluding.

Nature of Case No. 117079

In Case No. 117079, FHSU Foundation appeals from a January 4, 2017, order

granting Oborny attorneys’ fees and expenses. Judge Burr’s ruling has been consolidated

with this Court’s review of Judge Lyle’s Journal of Entry of Judgment denying Oborny’s

claims that is the subject of Appellate Case No. 116456.

Statement of the Issues

Issue I: The trial court erred in construing K.S.A. § 59-1504 to authorize

payment of Oborny’s attorneys’ fees and litigation expenses.

Statement of Facts

On March 13, 2013, Oborny filed her petition requesting the court to admit to

probate the Purported Codicil. FHSU Foundation and the other beneficiaries to the 2010

Will timely filed written defenses and petitions for allowances. Years of litigation ensued,

culminating in a nine-day trial before the Honorable William F. Lyle, Jr. In his Journal

Entry of Judgment filed June 1, 2016, Judge Lyle found and concluded that the Purported

Codicil was a forgery done by or at the direction of Oborny. Judge Lyle alternatively

concluded that the Purported Codicil was invalid based on statutory or common law undue

influence and as conflicting with the contractual estate plan of Earl and Nonie. (R. V, 19-

23; R. IV, 377-439).

After Judge Lyle entered judgment, various parties filed post-judgment petitions for

attorneys’ fees and expenses pursuant to K.S.A. § 59-1504. Oborny joined in that effort

seeking almost $1 million in attorneys’ fees and expenses from Earl’s estate. (R. V, 35-

00287344-6 56

43). By Kansas Supreme Court order filed July 21, 2016, the Honorable Jack L. Burr was

appointed to replace Judge Lyle before hearing of the post-judgment petitions because

Judge Lyle’s special appointment term had expired. After hearings on August 25 and

November 17, 2016, Judge Burr granted Oborny’s request for attorneys’ fees and expenses,

but indefinitely stayed and suspended the payment pending appellate review of the issues

concerning the validity of the Purported Codicil. (R. V, 299-302).

Arguments and Authorities

Issue I: The trial court erred in construing K.S.A. § 59-1504 to authorize

payment of Oborny’s attorneys’ fees and litigation expenses.

A. Standards of Review

Under Kansas law, attorneys’ fees cannot be awarded to a litigant unless authorized

by statute or agreement. See Johnson v. Westoff Sand Co., Inc., 281 Kan. 930, 939-40, 135

P.3d 1127 (2006); In re Estate of Robinson, 236 Kan. 431, Syl. ¶ 1, 690 P.2d 1383 (1984).

Whether a court is authorized by statute to award attorneys’ fees is a question of law subject

to de novo review. See id.; Idbeis v. Wichita Surgical Specialists, P.A., 285 Kan. 485, 490,

173 P.3d 642 (2007). Judge Burr’s construction and application of K.S.A. § 59-1504 are

afforded no deference.

B. Oborny’s exclusive statutory basis is K.S.A. § 59-1504.

Section 59-1504 states, in pertinent part:

…Whenever any person named in a will or codicil defends it, or prosecutes

any proceedings in good faith and with just cause, for the purpose of having

it admitted to probate, whether successful or not, or if any person

successfully opposes the probate of any will or codicil, such person shall

be allowed out of the estate his or her necessary expenses and disbursements

in such proceedings, together with such compensation for such person’s

services and those of his or her attorneys as shall be just and proper.

00287344-6 57

Any heir at law or beneficiary under a will who, in good faith and for good

cause, successfully prosecutes or defends any other action for the benefit of

the ultimate recipients of the estate may be allowed his or her necessary

expenses, in the discretion of the court, including a reasonable attorney’s fee.

(Emphasis added).

The statute has mandatory and discretionary components. Under the mandatory

components in the first paragraph, attorneys’ fees and expenses “shall be allowed” to a

person if he or she is “named in a will or codicil” and either defends the will or codicil or

prosecutes a proceeding in good faith to have a will or codicil admitted to probate. That

paragraph also authorizes recovery of fees and expenses to “any person” who successfully

opposes the probate of any will or codicil. Under the discretionary component in the

second paragraph, recovery is limited to an “heir at law of beneficiary under a will” who

successfully prosecutes or defends an action for the benefit of the estate.

C. Oborny lacks statutory standing and authority.

Oborny has no right or standing to request fees under the mandatory components of

K.S.A. § 59-1504. The trial judge found and concluded that the Purported Codicil is a

fake. It is a forged document done by Oborny or by someone at her direction other than

Earl. (R. IV, 434, ¶ 40). The Purported Codicil has no factual or legal significance. Thus,

Oborny is not a “person named in a will or codicil.” Because Oborny did not successfully

oppose the probate of the 2010 Will, moreover, she has no right to request fees under the

second mandatory component of the mandatory fee shifting of K.S.A. § 59-1504.

Regarding the discretionary component of the statute, Oborny had to be an “heir at

law or beneficiary under a will… .” She was neither. She had no blood relationship with

Earl Field, and her name appears nowhere in the 2010 Will that Judge Lyle declared was

00287344-6 58

the only last will and testament of Earl Field. (R. V, 22). She certainly did not

“benefit…the ultimate recipients of the estate,” moreover.

Under the mandatory and discretionary components of the statute, Oborny’s claims

fail as a matter of law. She is simply not named in any will or codicil; did not successfully

oppose probate of any will or codicil; and, is not an heir at law or named beneficiary. In

re Estate of Gardiner, 29 Kan.App.2d 158, 163-64, 23 P.3d 902 (2001) (listing

requirements for attorney’s fees under K.S.A. § 59-1504; discussing literal requirements

of being an “heir at law or beneficiary under a will”; and, declaring that attorneys for

claimant lack standing to request attorneys’ fees in their own right.).

D. A person who knowingly prosecutes an action to admit a forged or unduly influenced

testamentary instrument does not act in “good faith” or with “just cause” under K.S.A.

§ 59-1504.

Under K.S.A. § 59-1504, Oborny was also bound to demonstrate her “good faith”

and “just cause” to prevail under the statute. In re Estate of Robinson, 236 Kan. 431, 436-

37, 690 P.2d 1383 (1984) summarizes the rules as follows:

K.S.A. 59-1504 says that when “any person named in a will or codicil

defends it, or prosecutes any proceedings in good faith…or if any person

successfully opposes the probate of any will…such person shall be allowed

out of the estate his or her necessary expenses.” The statute does not say that

attorney fees shall be paid directly to the attorney. It says that the fees shall

be paid to “such person” who defends, prosecutes or opposes. The general

rule as to statutory construction is that words in common usage are to be

given their natural and ordinary meaning in arriving at the proper

construction of the statute [internal citation omitted]…Under K.S.A. 59-

1504 “such person” to be allowed necessary attorneys’ fees obviously

means the person…who defends or opposes…not his attorney. The

attorney’s rights are derivative of his client’s rights. Only if the client

has a claim to make or right to defend does the attorney become

involved, and it is to his client that the attorney must look for

reimbursement. (Emphasis added and internal citations omitted).

00287344-6 59

To recover fees under K.S.A. § 59-1504, it is the client—the party—who must prosecute

or defend the matter at issue “in good faith” and with “just/good cause”—not that

client/party’s attorneys. See also Gardiner, 29 Kan.App.2d at 163-64. Thus, the question

is whether Oborny alone acted in “good faith” and with “just cause.” If she did not, that is

the end of the analysis, irrespective of any good faith exercised by her counsel. See also,

In re Graham’s Estate, 23 So.2d, 485, 488-89 (Fla. 1945) (Proponent of forged will, who

also participated in forgery, engaged in “utmost bad faith” by offering it to probate.

Although ignorant of proponent’s forgery, attorneys for proponent could not recover

attorneys’ fees in their own right.).

Here, Oborny claimed that her counsel’s good faith was sufficient to justify an

award of attorneys’ fees. (R. V, 36). Oborny’s misdirection unfortunately gained traction

with Judge Burr. (R. XV, 71 (“Mr. Hoffman and his client asked that the will be admitted

to probate…the efforts of Mr. Hoffman were really no different than the efforts on the other

side… .”)). Oborny invited the district court’s error in this instance.

Oborny also claims entitlement to fees at page 48 of her brief because Judge Lyle

did not specifically find that she acted in bad faith or without just cause under the statute.

This is more misdirection. Judge Lyle was not asked to determine Oborny’s “good faith”

or “just cause” under K.S.A. § 59-1504 during the trial. The parties expressly made those

issues subject to post-trial motion practice and review in the Pretrial Order, and Judge

Lyle carried that forward in his June 1, 2016, Journal Entry. (R. III, 202; R. IV, 438, ¶

53). Thereafter, he was replaced as the sitting judge before those issues were presented

and heard.

00287344-6 60

Judge Lyle handled this case for almost three years. He had the benefit of that

history and having presided over a two-week trial, during which multiple witnesses

testified and hundreds of exhibits were presented and discussed to demonstrate the

invalidity of the Purported Codicil and Oborny’s hand in its creation. Judge Lyle

specifically declared that “Oborny, or someone acting at her direction (other than Earl),

prepared and signed the Purported Codicil.” He alternatively found that Oborny exercised

undue influence over Earl Field. (R. IV, 433-34). Thus, the legal question for Judge Burr

was whether a person who knowingly prosecutes an action to admit a forged or unduly

influenced will acts “in good faith” and with “just cause” under K.S.A. § 59-1504. To ask

the question is to answer it.

“Good faith” and “just cause” are not separately defined under K.S.A. § 59-1504 or

otherwise in the probate code. However, those concepts find extensive definitional support

in published Kansas law. Cornerstones of “good faith” and “just cause” include honesty

and fairness. See, e.g., Hammer v. Thompson, 35 Kan.App.2d 165, Syl. ¶ 9, 129 P.3d 609

(2006); Foster v. Stonebridge Life Ins. Co., 50 Kan.App.2d 1, 29, 327 P.3d 1014 (2012);

Meier’s Trucking Co. v. United Const. Co., Inc., 237 Kan. 692, 699-700, 704 P.2d 2 (1985)

(dissenting opinion summarizing law of “good faith” in a myriad of contexts); Inscho v.

Exide Corp., 29 Kan.App.2d 892, 897, 33 P.3d 249 (2001) (“Just cause” is a cause beyond

minimum legal cause based on reasonable grounds, fair and honest reasons, and “good

faith.”).

Oborny’s adjudicated preparation and promotion of a forged document is

inconsistent with honesty and fairness. Such conduct has never been considered under

00287344-6 61

Kansas law to represent an honest or just act. See, e.g., In re Grant, 262 Kan. 269, 272,

936 P.2d 1360 (1997) (Manufacturing a forged will and then filing a petition seeking to

probate the altered document is “egregious” wrongful conduct.); In re Beck, 298 Kan. 881,

895, 318 P.3d 977 (2014) (“grave misconduct” to bear false witness to testamentary

instruments and to cause others to participate in forgery).

In re Koellen’s Estate, 167 Kan. 676, 208 P.2d 595 (1949) is also instructive and

analogous. There, the proponent of an alleged will consulted with an attorney after the

testator’s death and learned from the attorney that there was a serious defect in the

instrument that would prevent its probate. Subsequently, the same proponent created and

forged another document that eliminated the defect and then maintained an action on the

forged instrument. 167 Kan. at 683. Koellen’s Estate is remarkably similar to the

uncontroverted evidence relating to Oborny’s alleged discovery of the unwitnessed January

23, 2013, letter upon which she received legal advice from two lawyers that the letter was

no good because it lacked witnesses. According to Oborny, days later, she discovered

another letter correcting the alleged defect and proceeded with prosecuting an action to

admit the letter to probate. (See R. IV, 402-7). These basic factual parallels render

significant the Supreme Court’s characterization of the proponent’s conduct in Koellen’s

Estate:

If a person may consult an attorney and learn from the attorney there is

serious defect in some instrument of writing on which he must rely to

maintain his action, and then cause another document which eliminates the

defect to be forged…and attempt to maintain an action on such forged

instrument, he endeavors to perpetuate a fraud not only on his adversary but

upon the court….

00287344-6 62

167 Kan. at 683; see also, Johnson v. Routzong, No. 980, 1979 WL 208630, *3 (Ohio Ct.

App. 2d, 1979); Hoegh v. Estate of Johnson, 985 So.2d 1185, 1186 (Fla. Dist. Ct. App.

2008).

At page 48 of her brief, Oborny cites Medill v. McIntire, 136 Kan. 594, 16 P.2d 952

(1932). Medill does not support Oborny. In Medill, the Supreme Court was dealing with

a vastly different scenario. The attorneys’ fees and expenses at issue in Medill were not

those of the person responsible for the forgery. Instead, the fee request from the former

executor under a will that the executor had admitted in good faith and with no knowledge

of any forgery. 136 Kan. at 595-8. The will was subsequently declared a forgery, but the

executor had no hand in it. 136 Kan. at 598. Medill also did not implicate K.S.A. § 59-

1504. It dealt with an interpretation of R. S. 22-919, the predecessor to K.S.A. § 59-1717,

authorizing payment from an estate to a fiduciary for normal expenses incurred. 136 Kan.

at 596. Medill has no application here other than to emphasize why Oborny cannot request

fees. The attorneys’ fees at issue here are not those incurred by an innocent executor or

administrator of an estate as was the case in Medill. In this case, the person responsible for

the forgery is requesting fees.

The same result prevails with respect to the trial judge’s alternative conclusions of

common law and statutory undue influence by Oborny. Under Kansas law, an undue

influencer cannot recover attorneys’ fees from the estate under K.S.A. § 59-1504. In re

Faust’s Estate, 150 Kan. 784, 788-89, 96 P.2d 680 (1939). This is consistent with the

prevailing, if not uniform, view that wrongdoers should not be incentivized to promote

forged or unduly influenced wills. See, e.g., Shipley, W.E., Annotation, Right to Allowance

00287344-6 63

Out of Estate of Attorneys’ Fees Incurred in Attempt to Establish or Defeat Will, 40

A.L.R.2d 1407 (1955 & Supp.). There is simply no authority, direct or persuasive, that

supports an award of attorneys’ fees in favor of Oborny here.

Law aside, fundamental components of “good faith” and “just cause” include

honesty and fairness. The direct and circumstantial evidence relied on by Judge Lyle to

support his conclusions presents a compelling and conclusive case of dishonesty and

inequity by Oborny. Oborny has a history of misappropriating money from employers and

classmates. Throughout the pretrial and trial proceedings in this case, Oborny could not

keep her story straight and sought to support her case with inconsistent, conflicting, and

incredible testimony, and proposed false findings of fact over material issues. Oborny

attempted to conceal her dishonest acts. She backdated checks and documents,

misrepresented money she had taken from Earl, shredded material evidence, and filed false

tax returns. She initiated, prosecuted, and tried a case that was predicated upon dishonesty

and a forged document. (R. IV, 396-420; R. V, 1-22).

Once an issue is decided by the court, it should not be re-litigated or reconsidered

unless it is clearly erroneous or would cause manifest injustice. See Steel v. Guardianship

and Conservatorship of Crist, 251 Kan. 712, 721, 840 P.2d 1107 (1992). Judge Lyle’s

June 1, 2016, journal entry and associated findings and conclusions were admitted as

evidence against Oborny’s fee petition. (R. XVI, 9; R. XXXIV, 194-261). At the hearing

on November11, 2016, Judge Burr correctly recognized:

I don’t disagree with Judge Lyle’s findings. I don’t want to disturb those in

any way. I don’t intend to disturb them in any way. (R. XV, 3:20-22).

00287344-6 64

However, Judge Burr erred by following Oborny’s suggestion to judge “good faith” and

“just cause” by the acts of Oborny’s counsel instead of Oborny. Viewing the matter from

the right perspective and deferring to the trial court’s findings leads to the inescapable

conclusion that there is simply no legal or factual authority to award Oborny attorneys’

fees under K.S.A. § 59-1504.

CONCLUSION

Years of intense litigation, weeks of trial, and thousands of pages of documentary

evidence later, Oborny essentially pursues retrial of the issues by the Kansas Court of

Appeals. Having left behind an expensive and tortured trail of dishonesty, Oborny claims

that FHSU Foundation, the Burgharts, and the Brecheisens opposed her quest for over $10

million plus almost $1 million in attorneys’ fees from Earl’s estate, not because Oborny

promoted a false and unjust cause, but because of “the troubled economic times Kansas

public higher education institutions are experiencing as the State of Kansas addresses its

well-known budget crisis… .” (Petitioner’s Brief, p. 50). Oborny’s perspective is

consistently distorted. The trial court’s findings against Oborny are supported by

substantial competent evidence that clearly and convincingly supports its conclusions.

Oborny has established no basis for reversal, and Judge Lyle’s ruling should be affirmed

in all respects.

Judge Burr did not have the benefit of the evidence or intimate exposure to the

witnesses, exhibits, and the issues when he replaced Judge Lyle and conditionally granted

Oborny’s request for attorneys’ fees. As a matter of fact and as a matter of law, Judge Burr

00287344-6 65

erred in awarding Oborny’s fees and expenses under K.S.A. § 59-1504, and Judge Burr’s

conditional approval of Oborny’s fees and expense claim should be reversed.

Respectfully submitted,

/s/Coy M. Martin

Coy M. Martin, S.C. No. 17104

BEVER DYE, LC

301 N. Main, Suite 600

Wichita, KS 67202-4806

Telephone: (316) 263-8294

Facsimile: (316) 263-3142

Email: cmartin@beverdye.com

John Terry Moore, S.C. No. 07424

JOHN TERRY MOORE L.C.

8080 E. Central, Suite 300

Wichita, KS 67206-2366

Telephone: (316) 267-6000

Facsimile: (316) 267-6001

Email: terry@johnterrymoorelaw.com

Counsel for Respondent Fort Hays State

University Foundation

00287344-6 66

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing was filed using the eFlex System and

that a true and correct copy of the foregoing was served this 7th day of June, 2017, via email

upon:

Donald F. Hoffman

Melvin J. Sauer, Jr.

Dreiling, Bieker & Hoffman LLP

111 W. 13th Str.

P.O. Box 579

Hays, KS 67601

Email: donhoff@eaglecom.net

Email: melsauer@eaglecom.net

Counsel for Wanda Oborny

Ronald S. Shalz

1480 West Fourth

P.O. Box 509

Colby, KS 67701

Email: rshalz@st-tel.net

Counsel for Joseph W. Jeter and

William W. Jeter

Dan W. Forker

Forker Suter, LLC

29 W. 2nd St., Suite 2000

P.O. Box 1868

Hutchinson, Kansas 67504-1868

Email: dforker@forkersuter.com

Counsel for First National Bank in

Hutchinson, Special Administrator

Rachael K. Pirner

Shane A. Rosson

TRIPLETT, WOOLF & GARRESTON, LLC

2959 N. Rock Rd., Suite 300

Wichita, KS 67226

Email: rkpirner@twgfirm.com

Email: sarosson@twgfirm.com

Counsel for Timothy Burghart, Vincent

Burghart, Steven Brecheisen, Brian

Brecheisen, Scott Brecheisen, and the Estate

of Carl Brecheisen

/s/Coy M. Martin

Coy M. Martin, S.C. No. 17104

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