text:
    Raymond DEBEY and Ginger DeBey, Appellees, v. James SCHLAEFLI, James F. Schlaefli Trust, Dated 7/1/2001, and Roberta A. Schlaefli Trust, Dated 7/1/2001, Appellants.
    No. 119,218
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Tish Morrical, of Hampton & Royce, L.C., of Salina, for appellants.
    Paul S. Gregory, of Gregory & Gregory, of Osborne, for appellees.
    Before Schroeder, P.J., Standridge, J., and Walker, S.J.
   Walker, J.:

James Schlaefli, the James F. Schlaefli Trust, and the Roberta A. Schlaefli Trust (Schlaeflis) appeal the district court's findings that Raymond DeBey and Ginger DeBey (DeBeys), who own property adjacent to Schlaeflis, have easements of various types needed to operate their seed business over Schlaeflis' adjoining land. Because we find that the district court properly applied the law and there is substantial competent evidence supporting the court's findings, we affirm.

FACTS

This case involves the disputed use of two tracts of property lying along U.S. Highway 24 just outside of and to the east of Downs in Osborne County, Kansas. The parties refer to them as the West tract (currently owned by Schlaeflis) and the East tract (currently owned by DeBeys). Twenty years before inheriting the land, James Schlaefli's father erected a building on the East tract. His father passed away in 2000. James and his brother inherited several pieces of property, including both the West and East tracts, with each owning an undivided one-half. The brothers traded property interests, and James acquired both the West and East tract. James and his wife transferred their ownership interests of the property into their trusts.

Immediately south of the West and East tracts is Highway 24. North of the two tracts of land is a large water diversion ditch. East of the East tract is additional land purchased by DeBeys from third parties who are not involved in this lawsuit. The West tract contains a house and several other buildings. At the eastern edge of the West tract is a building James used as his shop. Unless James was out of town, he was at his shop most days.

Highway 24 runs south of the two tracts of land, and there are two driveways. The first driveway is on the western part of the West tract and curves south of the house and James' shop. A dirt path runs from the north part of the tracts a few feet east of his shop. This dirt path then merges with the second driveway.

The second driveway is the primary source of this controversy. This driveway connects Highway 24 to the south and the dirt path. One branch of it curves west to the first driveway and the other branch curves east to the building James' father erected on the East tract. His father regularly used the second (eastern) driveway to travel from Highway 24 to his building on the East tract. When James inherited both tracts of land, he used the eastern driveway like his father did.

In 2006, Raymond DeBey rented the building on the East tract to run his bulk seed business close to Highway 24. James allowed Raymond to use the eastern driveway like James and his father had used it. James knew Raymond intended to run his seed business from the East tract. Raymond then bought the East tract from James in 2007 because he did not want to build seed bins on rented property. James also sold Raymond some farm equipment just east of the dirt path, on what both men believed to be the East tract owned by Raymond. Both men believed the two tracts of land were divided by the dirt path.

In 2007, Raymond built bulk seed tanks just to the east of the building built by James' father. Raymond also built a conveyor belt and other equipment to load seed for his customers. This equipment took considerable time and expertise to set up.

About three years later, Raymond's seed business was thriving, so he formed a limited liability company (LLC). The LLC purchased two pieces of property to the east of the East tract. Mid-Way Co-op owned one of the two properties. Mid-Way Co-op agreed to sell most of its property if it could keep its anhydrous plant, and Raymond agreed to provide water to it. East of the anhydrous plant is a field the LLC bought from a private land owner. The drainage ditch continues north across all of this land. To the east of the field is County Road 20th Avenue. By about 2010, Raymond owned the East tract purchased from James and the LLC owned all land east of that except for Mid-Way Co-op's anhydrous plant. The LLC paid annual rent to Raymond for using the East tract.

In 2012, the LLC expanded its seed business and erected a seed building to the east of the East tract but west of the anhydrous plant. Most of the LLC's seed business was operated in the seed building, but the East tract was still used to store seed in the building James' father built and in the seed tanks Raymond built.

The seed building is on land with a significantly higher elevation than Highway 24. There is not enough room for another driveway between the seed building and the anhydrous plant. Mid-Way Co-op is unwilling to share its driveway with the seed building traffic. The only other route for highway access is across the field to County Road 20th Avenue, which would require building an all-weather road to support heavy truck traffic. Currently, traffic to and from the seed building can only reach Highway 24 by traveling across the East tract and the eastern driveway connected to Highway 24.

Traffic to the seed building can be busy during seed time and includes local farm trucks and semi-trucks. Sometimes seed business traffic drives down the wrong driveway and drives close to the house owned by Schlaeflis on the West tract. After 2007, James watched Raymond's seed business grow over the next five years, but he did not complain to Raymond about the business or traffic.

In 2017, James hired a surveyor and discovered the property line between the West and East tracts was about 30 feet further east, making the entirety of the eastern driveway part of James' West tract and placing some of Raymond's equipment on James' property. James tried to build a fence to stop Raymond from using the driveway. Raymond sued James, and the district court granted a temporary restraining order.

After a bench trial, the district court found the property line was where the surveyor said it was. The district court found Raymond had an implied easement by reservation or grant on the use of the eastern driveway. The district court also ruled Raymond's continued use of the driveway for himself and his business was reasonably necessary. The district court authorized additional use of the easement for the expanded seed business because it was an easement by estoppel. Finally, the court ruled Raymond's easement by estoppel extended to filling the bulk seed tanks on the West tract, which required temporary placement of grain augers and other equipment.

Schlaeflis have timely appealed from the district court's decision.

ANALYSIS

Existence of an implied easement by reservation or grant

Schlaeflis first argues that the district court erred when it found that DeBeys had an easement by necessity or by implication across the West tract owned by Schlaeflis. On review, this presents us with a mixed question of fact and law.

When reviewing a mixed question of fact and law, we apply a bifurcated review standard. The district court's factual findings are generally reviewed under the substantial competent evidence standard. Its conclusions of law based on those facts are subject to unlimited review. See Gannon v. State , 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014). "Substantial competent evidence is ' " 'evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can be reasonably be resolved.' " ' [Citation omitted.]" Wiles v. American Family Life Assurance Co ., 302 Kan. 66, 73, 350 P.3d 1071 (2015).

There are several categories of easements, but the district court found Raymond had an implied easement by a reservation or grant. An implied easement by a reservation or grant requires several factors. Smith v. Harris , 181 Kan. 237, 248-49, 311 P.2d 325 (1957). First, a landowner must use his or her land in such a way that part of his or her land gives a benefit of a "continuous, permanent, and apparent nature" to another part of his or her land. 181 Kan. at 248, 311 P.2d 325. This is typically called a quasi-easement. The part of the land giving the benefit (such as the West tract) is known as the quasi-servient tenement, and the part of the land receiving the benefit (such as the East tract) is known as the quasi-dominant tenement. When the landowner sells the quasi-dominant tenement, the quasi-easement then becomes an implied easement and will be retained only if necessary for the reasonable enjoyment of the sold property. Van Sandt v. Royster , 148 Kan. 495, 502, 83 P.2d 698 (1938).

The Kansas Supreme Court has cautioned against confusing "necessary" in an implied easement by reservation or grant with another category of implied easement-an implied easement from a way of necessity. Harris , 181 Kan. at 249, 311 P.2d 325. An implied easement from a way of necessity is based on strict necessity, but strict necessity is not required in an implied easement by reservation or grant. Instead, an implied easement by reservation or grant is based on the intent of the parties and what expectations one party could reasonably foresee the other party had from the sale of the land. Generally, parties intend to continue using the land in the same way known to them to "a considerable degree necessary to the continued usefulness of the land." 181 Kan. at 249, 311 P.2d 325. Additionally, "[t]he parties will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation." 181 Kan. at 249, 311 P.2d 325.

Schlaeflis argue that DeBeys do not have an easement by necessity, but this misses the point made in Harris because the district court did not find DeBeys had an easement by necessity. Schlaeflis also argue DeBeys do not have an implied easement because DeBeys spent resources on expanding the seed business and purchasing adjacent land which made it "reasonably foreseeable" that increased business traffic would necessitate additional access to Raymond's expanded enterprise. Schlaeflis complain that DeBeys should have, but did not, explore whether they could access County Road 20th Avenue or Highway 24. In making this argument, Schlaeflis rely on Horner v. Heersche , 202 Kan. 250, 447 P.2d 811 (1968).

In Heersche , the Horner family appealed a district court order finding they did not have an easement by necessity because they had an exclusive remedy under K.S.A. 68-117, which allowed landlocked property owners to compel their county to create access to a public roadway. The Heersche court reviewed conflicting authority on implied easements by way of necessity. Ultimately, the Kansas Supreme Court found the Horner family was entitled to an implied easement by way of necessity and remanded the case to the trial court. 202 Kan. at 257-58, 447 P.2d 811.

Heersche is inapplicable because the two issues raised there are not issues in this case. No one is claiming K.S.A. 68-117 is a remedy available to Raymond. Additionally, as noted above, in our case the district court did not find Raymond had an implied easement by way of necessity.

Instead the district court followed precedent in Harris , 181 Kan. at 249, 311 P.2d 325. The district court found James and his father created and used a quasi-easement to access the East tract from the West tract and Highway 24. The East tract was the quasi-dominant tenement because it benefitted from access to the West tract. The West tract was the quasi-servient tenement because it was used to benefit the East tract. The district court found this quasi-easement was apparent and continuous because James' father built a building on the East tract and the easement was necessary to access the East tract.

Following up on this initial finding, the district court held James rented then sold the East tract to Raymond. With that sale, the court concluded Raymond gained an implied easement by grant of access from the East tract through the West tract. The court reasoned Raymond purchased the East tract to expand his bulk seed business and James knew of this when he sold Raymond the East tract. The district court concluded the easement was reasonably necessary for the continued usefulness of the East tract because there was not enough space between the east driveway and the anhydrous plant driveway for Raymond to build a new driveway. Additionally, building to the north of the plant and across the field to either Highway 24 or County Road 20th Avenue was not possible due to the elevation of the property and the requirement of a fairly lengthy all-weather road. Substantial competent evidence supports the district court's findings that DeBeys have an implied easement by reservation or grant. James and his father both created a quasi-easement when they owned the West and East tracts. See Royster , 148 Kan. at 502, 83 P.2d 698. Both men used the eastern driveway to access the building on the East tract. The eastern driveway gives a benefit of a "continuous, permanent, and apparent nature" to the East tract-accessibility to Highway 24. See Harris , 181 Kan. at 248, 311 P.2d 325. After James sold the East tract to Raymond, Raymond could use the implied easement to the eastern driveway only if it was necessary for his reasonable enjoyment of the East tract. See Royster , 148 Kan. at 502, 83 P.2d 698.

As our courts have observed, for something to be "necessary" does not mean that it is a "strict necessity." Instead, it is based on what expectations James could reasonably foresee Raymond had from the sale of the land. Additionally, "[t]he parties will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation." Harris , 181 Kan. at 249, 311 P.2d 325.

At trial, James testified he knew Raymond bought the land for his seed business. He also testified he was at his own shed every day he was not on vacation. James' shed is situated next to the East tract in such a way that the ingress to and egress from the East tract by business traffic via the eastern driveway would be easily visible. James testified he watched the LLC build the seed building to the east of the East tract. With reasonably prudent investigation, James contemplated Raymond's continued use of the East tract to support his successful seed business. See Harris , 181 Kan. at 249, 311 P.2d 325.

In summary, we find that the district court correctly applied the law in determining the standards for an implied easement by reservation or grant of access. Substantial competent evidence supports the district court's finding that DeBeys have an implied easement by reservation or grant to access the East tract from Highway 24 by using the eastern driveway.

Easement overburdening

As the second issue on appeal, Schlaeflis argue the district court erred because Raymond's seed building activity was not on the East tract itself but was constructed on the property even further east which Raymond's LLC later acquired from Mid-Way Co-op and another private owner. Because this significant expansion was not in existence at the time of the original conveyance from James to Raymond, Schlaeflis contend this increased activity overburdened any easement DeBeys arguably might be entitled to.

Neither party has cited any Kansas cases addressing whether an easement can be voided by overburdened activity, and we have likewise found none. Schlaeflis cite to the Restatement (First) of Property § 484, comment (b) (1944), and to Trattar v. Rausch , 154 Ohio St. 286, 292, 95 N.E.2d 685 (1950), to argue Raymond overburdened the easement. But after careful review we believe both citations support the district court's order. Section 484, comment (b) explains an easement by implication

"is to be measured ... by such uses as the parties might reasonably have expected from future uses of the dominant tenement. What the parties might reasonably have expected is to be ascertained from the circumstances existing at the time of the conveyance. It is to be assumed that they anticipated such uses as might reasonably be required by a normal development of the dominant tenement. It is not to be assumed, however, that they anticipated an abnormal development." (Emphasis added.) Restatement (First) of Property § 484 (1944).

Likewise, Rausch explains the "use to which one part of the property has been subjected for the benefit of another part will not be recognized as an implied easement on a severance of ownership unless the use is reasonably necessary to the enjoyment of the dominant estate." 154 Ohio St. at 292, 95 N.E.2d 685.

Like Harris , Rausch and Restatement (First) of Property § 484, comment (b) support the conclusion that an implied easement will be upheld when it is reasonably necessary for the enjoyment of the East tract and the development is reasonably ascertained by circumstances existing at the time of the conveyance. See Harris , 181 Kan. at 249, 311 P.2d 325.

Schlaeflis claim the use of the easement cannot be for development on land adjacent to the dominant tenement. But we believe this misses the point because the focus of maintaining an easement is on the use of the land, not just the development. See Restatement (First) of Property § 484. When Raymond bought the East tract, he intended to expand his seed business. James could reasonably foresee this use. James knew Raymond stopped renting the East tract and bought it in 2007 to expand his business. Raymond bought the East tract from James in 2007 because he did not want to build seed bins on rented property. Although the seed building was built on the LLC's adjacent land, James could reasonably foresee a successful seed business would have increased traffic to and from the East tract, regardless of any expansion on adjacent lands. Raymond's use of the easement to support his expanded seed business is what might be reasonably expected when James sold the East tract to Raymond for Raymond's seed business.

In summary, we believe that Raymond's expansion of his seed business constitutes the kind of "normal development of the dominant tenement" which is embraced with favor by Restatement (First) of Property § 484 and not the kind of "abnormal development" of an entirely different kind and character which might, in fact, overburden the easement. We believe substantial competent evidence supports the district court's rejection of Schlaeflis' claims.

Easement by estoppel

Schlaeflis raise two allegations of error based upon the district court's ruling that they were equitably estopped from denying DeBeys' claims of an implied easement over their property.

The first of the district court's rulings was that Schlaeflis were estopped from complaining about use of the easement to benefit the newest seed building constructed on property acquired from Mid-Way Co-op and the other private owner. The second ruling by the court they complain of was its order estopping them from denying an easement allowing Raymond to fill and otherwise utilize the bulk seed tanks and equipment which were erroneously built on Schlaeflis' West tract. Each of these claims will be dealt with in turn after a general discussion of equitable estoppel.

Under the doctrine of equitable estoppel, courts may prevent a person from asserting his or her rights against another when the other detrimentally relied upon the voluntary conduct of the person now asserting rights. A party claiming equitable estoppel must show another party, by his or her acts, representations, admissions, or silence when he or she had a duty to speak, induced the claimant to believe certain facts existed. The claimant must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other person were allowed to deny the existence of such facts. Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc. , 305 Kan. 761, 769, 388 P.3d 84 (2017).

Kansas courts have rarely ruled on an easement by estoppel. In Jobes v. Milburn Golf and Country Club , 121 Kan. 264, 246 P. 969 (1926), the Kansas Supreme Court upheld the trial court's findings in favor of Jobes. Milburn Golf and Country Club leased land with an option to buy from a family. The lease allowed the family to reserve a 30-foot easement-a road-on the leased land. The family maintained the easement for two years and then sold its property to Jobes. Jobes maintained the easement, and over the next five years he worked with the country club to restrict the easement's use to Jobes and golf club members. Sometime later, the country club attempted to stop Jobes' use of the easement. Jobes petitioned for a permanent injunction against the country club, and the trial court granted Jobes the injunction. The Kansas Supreme Court upheld the trial court under either "fair interpretation of the written instruments ... or under principles of equitable estoppel." 121 Kan. at 268, 246 P. 969.

In 2004, the Kansas Court of Appeals addressed an easement by estoppel. Irick v. Marshall , No. 90,688, 2004 WL 1489051 (Kan. App. 2004) (unpublished opinion). There, the Irick family conveyed a section of property to another family but did not convey the West 60 tract. Eventually the Marshalls purchased the conveyed land from a commercial lender, but the lender mistakenly added the West 60 tract into the property sold to the Marshalls in 1992. The Marshalls regularly used a road across the West 60 tract. They graded it, added materials to the road, mowed the area, cleaned the ditches, and installed culverts. The Marshalls also paid taxes on the West 60 tract since 1992. The Iricks argued the maintenance was insufficient but did nothing to discourage the Marshalls from maintaining the road or paying taxes. The Iricks also testified they made no road improvements since 1992. Based on those facts, and relying on Jobes , the Irick court found sufficient competent evidence to uphold the trial court's easement by estoppel. 2004 WL 1489051, at *2.

Schlaeflis first argue that an easement by estoppel is inappropriate and not supported by substantial competent evidence. They claim James did not have a duty to stop Raymond from developing the seed building because the development occurred on land James never owned. They also argue Raymond did not do enough to maintain the easement, alleging Raymond spent less than $1,000.

There is substantial competent evidence to support the district court's findings of equitable estoppel. Although James had no duty with regard to the construction of the seed building on property further to the east, James did have a duty with regard to the use of the easement. He knew the seed business was expanding and therefore the traffic across the easement was growing. James testified he was at his shop almost every day and watched Raymond's seed business develop. James made no objections to the use of the easement for 10 years. James knew of the ongoing traffic and, by his silence, he induced Raymond to believe the easement was available to his customers. Raymond has no other route to Highway 24 except through the eastern driveway. He would therefore be prejudiced but for an easement by estoppel.

Additionally, Raymond testified he maintained the road after he purchased the East tract in 2007. He used asphalt milling as needed and mowed the property. He also extended the culvert for the eastern driveway and maintained it after rain. A Kansas Department of Transportation employee testified Raymond extended the culvert. James testified he did see Raymond putting out rocks in the ditch but did not observe Raymond completing other maintenance. James also testified he last put millings down on the driveway in the 1990s. James' family member testified the cost of the culvert was likely $200. No one testified about the cost of the milling or mowing. Much like in Irick , Raymond maintained the easement and James acquiesced to Raymond's maintenance. See Irick , 2004 WL 1489051, at *2. Therefore, we find substantial competent evidence supports the district court's findings that Schlaeflis should be equitably estopped from contesting the easement for the benefit of Raymond's expanded seed business.

As noted above, Schlaeflis also argue that the district court erred in finding an easement by estoppel to allow Raymond to fill and service his bulk seed tanks. In 2007, Raymond installed the bulk seed tanks and equipment on what was believed to be the East tract but in fact was revealed to be on the West tract by the surveyor. Before the survey, both parties believed the property line was further west than it is in actuality. As the landowner, James had a duty to act if he wished to have Raymond remove his seed tanks or intended to deny access to them. See Irick , 2004 WL 1489051, at *2. But James remained silent until 2017. His silence induced Raymond to continue to complete bulk seed fills on part of James' land. DeBeys would now be prejudiced if they were required to move the tanks and equipment or if they lost access to them. Evidence at trial indicated these are not minor improvements which can be easily moved. In fact, it took considerable time and expertise to set these up.

Once again, substantial competent evidence supports the district court's findings of equitable estoppel of Schlaeflis from denying an easement to DeBeys for purposes of filling and otherwise utilizing the bulk seed tanks.

Attorney fees

Schlaeflis' next claim on appeal is that they should be awarded attorney fees since the case was wrongly decided by the district court. But under K.S.A. 60-905, attorney fees are only awarded when an injunction should not have been awarded. The injunction ordered by the district court was appropriate, and therefore Schlaeflis are not entitled to attorney fees.

Common-law right of access to Highway 24

In their brief, DeBeys allege they have a common-law right of access over Schlaeflis' property.

The Kansas Supreme Court explained the common-law right of access in Sebree v. Board of Shawnee County Comm'rs , 251 Kan. 776, 781, 840 P.2d 1125 (1992). This right exists when one's property abuts an existing street or highway. The landowner has two kinds of rights:

" 'a public right which he enjoys in common with all other citizens, and certain private rights which ... include certain easements, or appurtenant easements, such as the rights of access, of view, of light and air, and others. These rights are property of which he may not be deprived without his consent, except on full compensation and by due process of law.' " 251 Kan. at 781, 840 P.2d 1125.

The Sebree family filed a quiet title action to clear the access to Old Highway 40 because New Highway 40 would run diagonal across their land and they apparently wanted to reclaim the old land. The Dreashers' predecessors built a spur road to create a right of way to access Old Highway 40. The spur road encroached onto the Sebree property by about 20 feet. Ultimately, the Kansas Supreme Court found the Dreasher family did have a common-law right of access to Old Highway 40 because they were abutting landowners. 251 Kan. at 785, 840 P.2d 1125.

The district court in this case did not address the common-law right of access. In light of our ruling on the other issues, this point has become moot in the specific context of the case. However, we do note from the evidence that DeBeys appear to be correct on this issue and have a common-law right of access to Highway 24. The evidence clearly shows their property abuts Highway 24. As such, access to it cannot be removed without full compensation and except by due process of law. See Sebree , 251 Kan. at 781, 840 P.2d 1125.

Affirmed.


source: Caselaw Access Project

author: Schroeder, J.:

license: Public Domain

text:
    Tamah SCOTT, Appellant, v. Donald EWING, Dawn Ewing, Ronald Ewing, Dustin Ewing, James Basey, K.S., a Minor, By and Through His Father and Next Friend, Donald Smith, and Donald Smith, Appellees.
    No. 118,730
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Melinda G. Young, of Bretz & Young, of Hutchinson, for appellant.
    Kevin D. Weakley and Christopher M. Wolcott, of Wallace Saunders, Chtd., of Overland Park, for appellee Ronald Ewing.
    Robert C. Hutchison, of Thompson Warner, P.A., of Lawrence, for appellee Dustin Ewing.
    Kevin L. Bennett, of Bennett, Bodine & Waters, P.A., of Shawnee, for appellee Dawn Ewing.
    No appearance by appellees Donald Smith, K.S., and James Basey.
    Before Gardner, P.J., Hill and Schroeder, JJ.
   Schroeder, J.:

Tamah Scott appeals the district court's dismissal of her personal injury claims against the defendants. Although the statute of limitations on claims is two years, she argues she tolled the limitations period one day before the statute ran by moving to amend her petition to add additional defendants. For the first time on appeal, Scott also argues her petition against the defendants cannot be dismissed because her amended petition adding those defendants relates back to her first petition. For the reasons explained later, we agree Scott tolled the statute of limitations upon filing her motion to amend her petition. We also find Scott waived her relation-back issue below and cannot raise it for the first time on appeal. The district court is reversed and the case is remanded for further proceedings.

FACTS

Scott claims someone injured her by shooting fireworks in a trailer park during an Independence Day celebration on July 4, 2015. Scott sued Donald Ewing on June 30, 2016, alleging he hosted the event and set off the fireworks. Donald answered, denied the allegations, raised a defense of comparative fault, and asserted Scott failed to mitigate her damages. The two exchanged interrogatories and responses through January 2017.

On July 4, 2017, Scott electronically filed her motion to amend her petition and asked the district court for permission to add Dawn Ewing, Ronald Ewing, Dustin Ewing, James Basey, Donald Smith, and Smith's minor son, K.S. as other defendants (the defendants). Scott claimed Donald now denied shooting the fireworks and he blamed the other proposed defendants. Scott also claimed Donald alleged Scott's injuries arose on another person's property in the trailer park.

On August 17, 2017, the district court allowed Scott to amend her petition and add the additional defendants. Scott did so the same day. On August 23, 2017, Scott served her amended petition on Dawn, Donald, Ronald, Dustin, Smith, and K.S. On September 24, 2017, Scott served her amended petition on Basey. The defendants moved to dismiss the case, alleging the statute of limitations barred Scott from recovery because her amended petition was not granted until after the limitations period had expired on July 5, 2017.

At a motions hearing, Scott claimed she tolled the statute of limitations when she moved to amend her petition. She advised the district court she was not arguing her amended petition related back to her first petition. She also explained Donald Ewing, through discovery, raised an additional defense that he did not light the fireworks and he did not control the property where Scott sustained her injuries. According to Scott, Donald Ewing alleged K.S. was the party who injured Scott. Donald Ewing did not provide other details about K.S., so Scott had to conduct more investigation about the additional defendants before she moved to amend her petition.

The district court dismissed Scott's amended petition. It found the statute of limitations expired on July 4, 2017, but Scott's amended petition was not granted or filed until August 17, 2017. The district court also found the defendants did not receive notice of Scott's claims until after July 4, 2017, citing favorably to Hajda v. University of Kansas Hosp. Auth. , 51 Kan. App. 2d 761, 356 P.3d 1 (2015), rev. denied 303 Kan. 1077 (2016). The district court stayed the proceedings so the defendants could proceed on interlocutory appeal.

ANALYSIS

Scott's statute of limitations expired on July 5, 2017.

The district court erred in finding Scott's limitations ran on July 4, 2017. Both Scott and the defendants agree Scott's statute of limitations expired on July 5, 2017. This claim is subject to statutory interpretation, a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015).

Scott claims she suffered personal injuries on July 4, 2015. Under K.S.A. 60-513(a)(4), Scott's claims are subject to a two-year statute of limitations. Even so, K.S.A. 2017 Supp. 60-206 explains how to calculate time under Chapter 60 of the Kansas Statutes Annotated. If "the last day is a Saturday, Sunday or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday or legal holiday." K.S.A. 2017 Supp. 60-206(a)(1)(C). When a party files electronically, the last day ends at midnight in the court's time zone. K.S.A. 2017 Supp. 60-206(a)(4)(A). July 4, 2017, was a Tuesday and a legal holiday, so Scott's statute of limitations expired at the end of the next day, July 5, 2017. Scott electronically filed her motion to amend her petition on July 4, 2017. She timely filed before the statute of limitations expired.

The filing of Scott's amended petition tolled the statute of limitations from running.

Whether the district court erred by dismissing Scott's petition is a question of law subject to unlimited review. The appellate court will view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Cohen v. Battaglia , 296 Kan. 542, 545-46, 293 P.3d 752 (2013).

This issue also requires statutory interpretation, a question of law over which appellate courts have unlimited review. Neighbor , 301 Kan. at 918, 349 P.3d 469. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained.

State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction, legislative history, or other background considerations to construe the Legislature's intent. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).

Dustin argues Scott's timely motion to amend her petition does not toll the statute of limitations. He cites Read v. Miller , 247 Kan. 557, 802 P.2d 528 (1990), and Tharp v. Lee , 32 Kan. App. 2d 628, 87 P.3d 323 (2004), yet those cases are readily distinguishable. In Read , the Kansas Supreme Court addressed K.S.A. 60-203(a). One hundred fifteen days after suing, Read moved for additional time to serve the defendants and the district court granted Read's request. On appeal, the Kansas Supreme Court emphasized K.S.A. 60-203(a) relies on the word "extend" and a court cannot "extend" a deadline after it has passed because there is nothing left to extend. Read , 247 Kan. at 561, 802 P.2d 528. The Kansas Supreme Court held the statute of limitations barred Read's claims because the district court could not extend the 90-day timeframe after it had expired. 247 Kan. at 563, 802 P.2d 528.

Tharp extended Read 's rationale. There, the Kansas Court of Appeals affirmed the district court's dismissal of Tharp's claims. Under K.S.A. 60-203(a), Tharp moved for an extension to serve the defendant beyond the 90-day timeframe. Unlike Read, Tharp filed his request before 90 days expired, but the district court granted Tharp's request after the 90-day expiration. The Tharp court relied on Read , finding the district court could not grant an extension because there was nothing left to extend. 32 Kan. App. 2d at 631, 87 P.3d 323.

Unlike Read and Tharp , Scott relied on K.S.A. 2017 Supp. 60-215(a) to amend her petition. Under K.S.A. 2017 Supp. 60-215(a)(1), a party may amend his or her pleading once without court approval if the party does so within 21 days after serving the pleading or, if the pleading is one which requires a responsive pleading, 21 days after service of a responsive pleading. Under K.S.A. 2017 Supp. 60-215(a)(2), "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent, or the court's leave. The court should freely give leave when justice so requires." Neither of these subsections puts time limitations on the district court's authority.

Under the express provisions of K.S.A. 2017 Supp. 60-203(a), the district court cannot "extend" the time to execute service when 90 days has passed. Read , 247 Kan. at 561, 802 P.2d 528 ; Tharp , 32 Kan. App. 2d at 631, 87 P.3d 323. Yet the language of K.S.A. 2017 Supp. 60-215(a) creates no time limitation on the district court's authority to grant a party an amendment to a pleading. K.S.A. 2017 Supp. 60-215(a) is therefore ambiguous because it does not address how the district court should address a timely filed motion still pending after the expiration of the statute of limitations.

In similar situations, the Kansas Supreme Court has found it appropriate to toll the statute of limitations when a party cannot exercise his or her legal remedy because the party awaits a judicial determination. See Pizel v. Zuspann , 247 Kan. 54, 795 P.2d 42 (1990), modified on other grounds 247 Kan. 699, 803 P.2d 205 (1990) ; Price v. Holmes , 198 Kan. 100, 422 P.2d 976 (1967).

In Pizel , the Kansas Supreme Court applied the same rule as in Price . The Pizel court found the plaintiffs could not proceed with their claims against two attorneys who prepared an invalid trust until after the district court ruled the trust invalid and the appellate court denied a petition for appellate review. 247 Kan. at 76-77, 795 P.2d 42. The Pizel court determined the plaintiff's cause of action accrued against the attorneys when the district court ruled the trust invalid, but the limitations period remained tolled until the appellate court denied review. 247 Kan. at 76-77, 795 P.2d 42.

In Price , Henry Weber asked Harold Holmes to prepare his will and to leave one-half of his estate to his wife, with the other one-half to his niece, Lillian Price. Holmes, a banker, prepared Weber's will and Weber died five days later. An interested party sought to probate Weber's will, but his widow contested it, claiming Holmes improperly executed the will. The district court found Holmes duly executed the will, and Weber's widow appealed the decision. Price died three years after the will was submitted for probate. Twelve days later, the Kansas Supreme Court found Weber's will void. Two months later, the probate court appointed Price's administrator and he sued Holmes, alleging negligence and breach of warranty claims for preparing Weber's void will. Holmes moved for summary judgment, arguing the statute of limitations barred Price's claims. The district court granted summary judgment, and Price's administrator appealed to the Kansas Supreme Court. The Price court found Price's negligence claims accrued when the appellate court declared Weber's will void because Holmes did not damage Price until the appellate court declared the will void. 198 Kan. at 105, 422 P.2d 976. It also found the statute of limitations did not prohibit Price's breach of warranty claims. The Kansas Supreme Court noted Price could not sue Holmes for breach of warranty until a court ruled Weber's will invalid. 198 Kan. at 107, 422 P.2d 976. The Price court explained:

" 'The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues.' " Price , 198 Kan. at 107, 422 P.2d 976 (quoting In re Estate of Brasfield , 168 Kan. 376, Syl. ¶ 7, 214 P.2d 305 [1950] ).

The facts in Pizel , Price , and Scott's case are distinguishable, but the reasoning is not. In both Pizel and Price , the plaintiffs could not proceed without a ruling from the court. Pizel , 247 Kan. at 76-77, 795 P.2d 42 ; Price , 198 Kan. at 107, 422 P.2d 976. Scott faced the same issue-she could not amend her pleading without court approval because Donald had already filed his responsive pleading. See K.S.A. 2017 Supp. 60-215(a). Scott's circumstances were like those in Drake v. Phelps , No. 65,155, unpublished opinion filed March 8, 1991 (Kan. App.) ; Farmers Ins. Co. v. Tucker , No. 59,242, unpublished opinion filed December 24, 1986 (Kan. App.) ; and Farm Credit Bank of Wichita v. FCB Ltd. Partnership , 825 F.Supp. 932 (D. Kan. 1993).

In Drake , Ola Drake hired attorney Fred Phelps and sued her employer for discrimination. With the civil suit pending, Phelps referred Drake to two other attorneys who filed her bankruptcy. The bankruptcy trustee settled Drake's civil suit because the settlement became part of the bankruptcy estate. Drake then sued Phelps and her bankruptcy attorneys, alleging Phelps was negligent for recommending settlement of her discrimination suit and the bankruptcy attorneys failed to advise her the settlement would be part of the bankruptcy estate. Drake moved to amend her petition against the attorneys on November 15, 1989. Based on facts not relevant here, Drake's statute of limitations likely expired on November 16, 1989. The Drake court found she timely moved to amend but filed her first and second amended petitions after the limitations period. No. 65,155, slip op. at 5. Even so, the appellate court noted if Drake "were required to file a motion seeking permission of the court prior to filing her amended petition, this procedural step could be considered a legal proceeding which would toll the statute of limitations." No. 65,155, slip op. at 6 (citing Price , 198 Kan. at 107-10, 422 P.2d 976 ). That said, the Drake court held the statute of limitations barred her claims because she did not need the court's permission to amend her pleading-Drake could have, but did not, amend her pleading without the court's permission under K.S.A. 60-215(a) (Ensley 1983) since the defendants had not filed a responsive pleading. No. 65,155, slip op. at 6-7.

In Tucker , Oletta Mott sought to overturn the district court's dismissal of her intervening petition. Two days before the two-year statute of limitations expired, Mott moved for a petition as an intervening party under K.S.A. 60-224 (Ensley 1983). The Tucker court noted K.S.A. 60-224 (Ensley 1983) was uniformly the same as Rule 24 of the Federal Rules of Civil Procedure. No. 59,242, slip op. at 2 (citing 1 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-224 [1979] ). The Tucker court favorably noted that in federal court an intervening party who moved for a petition before the statute of limitations expired and completed service of process will not have his or her petition dismissed even if the district court granted the motion to intervene after the statute of limitations expired. No. 59,242, slip op. at 2. Even so, the Tucker court found Mott was not entitled to this relief because she failed to show she properly served the defendants. No. 59,242, slip op. at 3-4.

Although Drake and Tucker are not controlling decisions, their reasoning provides a better rule for the same reason discussed in the federal district courts for the District of Kansas. See Farm Credit Bank of Wichita , 825 F.Supp. at 935 ; Wallace v. Sherwin Williams Co. , 720 F.Supp. 158, 159 (D. Kan. 1988). As Wallace noted, Kansas statutes and federal rules do not address whether an amended complaint is considered filed when the plaintiff files his or her motion to amend, when the court grants the plaintiff permission to amend the complaint, or when the plaintiff files the amended complaint. 720 F.Supp. at 159. This puts the plaintiff who timely files his or her motion at the mercy of the judiciary and reliant on the courts to move faster than their resources may allow. According to Wallace :

" 'The Court has need for researching and deliberating upon the law as applied to the facts of the case, and this had to be done while applying time and energy to the many other matters in a busy court. The necessary time so consumed ... should not and cannot be permitted as an obstacle to justice. Such is the intendment and spirit of the Federal Rules of Civil Procedure.' " 720 F.Supp. at 159 (quoting Gloster v. Pennsylvania Railroad Co. , 214 F.Supp. 207, 208 [W.D. Pa. 1963] ).

Here, K.S.A. 2017 Supp. 60-215(a) does not address whether an amended pleading is considered filed when the movant presents it. As the statute is ambiguous, this court may turn to canons of statutory construction and other considerations. See Ullery , 304 Kan. at 409, 372 P.3d 1135. One consideration is federal caselaw where the language of our statute is identical to federal law. See In re Adoption of A.T.T. , 287 Kan. 590, 628, 196 P.3d 1180 (2008) ; Neagle v. Brooks , 203 Kan. 323, 327, 454 P.2d 544 (1969). The Legislature amended K.S.A. 60-215(a) in 2010 to conform with its federal counterpart, Federal Rule of Civil Procedure 15. 4 Gard, Casad & Mulligan, Kansas Law and Practice: Kansas C. of Civ. Proc. Annot. § 60-215 (5th ed. 2012). The reasoning espoused by Wallace is persuasive. See Stock v. Nordhus , 216 Kan. 779, 782, 533 P.2d 1324 (1975) (federal interpretations are persuasive). Courts are busy and the time needed for a court to decide matters should not impede a party's legal proceedings. See Price , 198 Kan. at 107-10, 422 P.2d 976 ; Wallace , 720 F. Supp. at 159. When a plaintiff timely moves the court for an amended petition, the plaintiff's claims should not be barred because the court must apply its time and energy elsewhere before turning to the plaintiff's request. Scott timely moved for her amended petition because she filed the day before the last day of her limitations period. The district court took more than 30 days before it allowed Scott to amend her petition. Scott's claims were timely filed, and we cannot penalize her for waiting on the court. See Price , 198 Kan. at 107-10, 422 P.2d 976 ; Wallace , 720 F.Supp. at 159. Scott's amended petition was filed the same day the district court authorized her to do so. As such, her amended petition was timely filed and she obtained service on all of the defendants in a timely manner. The district court erred in dismissing her amended petition.

Scott waived her relation-back argument at the district court.

Scott, for the first time on appeal, claims her amended petition relates back to her first petition, so adding the additional defendants is authorized under Kansas' relation-back statute, K.S.A. 2017 Supp. 60-215(c).

The record reflects Scott expressly waived this argument before the district court at the motions hearing. Dustin's counsel argued to the district court there could be no relation back under K.S.A. 2017 Supp. 60-215(c) because he claimed Scott added the additional defendants as new parties when she filed her amended petition. In response, Scott's counsel told the district court she was "not arguing that this is a relation back issue, so I agree that we don't get into that analysis." Scott cannot now raise her claim of relation back in this appeal when she specifically told the district court she was not making a relation-back claim under K.S.A. 2017 Supp. 60-215(c). We decline to address it. See Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34); see also Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 403, 266 P.3d 516 (2011) (issues not raised before the trial court cannot be raised on appeal).

Reversed and remanded.


text:
    STATE of Kansas, Appellee, v. James Henry GRAHAM Jr., Appellant.
    No. 118,691
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Dismissed.


text:
    STATE of Kansas, Appellee, v. Larry Jay COMSTOCK, Appellant.
    No. 119,675
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Vacated. Remanded.


text:
    STATE of Kansas, Appellee, v. Daryl C. BAGBY Jr., Appellant.
    No. 119,382
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed.


text:
    In the INTEREST OF D.E., a Minor Child.
    No. 120,244
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Juan D. GARZA, Appellant.
    No. 118,840
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019
    Affirmed in part. Reversed in part. Case remanded for further proceedings.


text:
    Joshua P. OLGA, Appellant, v. State of KANSAS, Appellee.
    No. 115,334
    Court of Appeals of Kansas.
    Opinion on remand filed March 29, 2019
    Affirmed.


text:
    Jason W. SCHAEFFER, Appellant, v. STATE of Kansas, Appellee.
    No. 119,345
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019
    Affirmed.


text:
    Rasmus Rodney EDDY, Appellant, v. STATE of Kansas, Appellee.
    No. 119,365
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Fernando MUNOZ-BENITEZ, Appellant.
    No. 118,229
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019
    Affirmed.


text:
    Roberto Simon RINCON, Appellant, v. STATE of Kansas, Appellee.
    No. 119,391
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jacob Coleman EWING, Appellant.
    No. 118,343
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Reversed. Remanded.


text:
    Saul Arthur MILLER, Appellant, v. STATE of Kansas, Appellee.
    No. 119,292
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirm.


text:
    In the INTEREST OF D.H. Jr., a Minor Child.
    No. 119,156
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Reversed. Remanded with directions.


text:
    In the INTERESTS OF H.E. and E.E., Minor Children.
    120,107 120,108
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Dakota Nicholas JACOBS, Appellant.
    No. 118,863
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Zachary J. FARNER, Appellant.
    No. 118,839
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brent O. ANNO, Appellant.
    No. 116,350
    Court of Appeals of Kansas.
    Opinion on remand filed April 5, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Derek A. HAYES, Appellant.
    No. 119,165
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Antonio COOPER, Appellant.
    No. 119,036
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirm.


text:
    STATE of Kansas, Appellee, v. Jesus Alexander HOLGUIN-LOREDO, Appellant.
    No. 118,740
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirmed.


text:
    Miguel Jerome LOPEZ, Appellant, v. SEDGWICK COUNTY D.A., et al., Appellees.
    No. 119,197
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    Bennie R. MURDOCK, Appellant, v. STATE of Kansas, Appellee.
    No. 119,038
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    Jean Katherine CASSITY-HAUCK, as Executrix of David Lee Hauck, Appellee, v. Frank C. HAUCK II, Individually and as Successor Trustee of the Jo Ann Hauck Revocable Trust, and Nathan Hauck, Appellants.
    No. 120,022
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    Kevin W. GINN Jr., Appellant, v. D.H.O. HUNT, Appellee.
    No. 120,004
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.
    [SLIPOP


text:
    Rodolfo GAONA, Appellant, v. STATE of Kansas, Appellee.
    No. 119,244
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Affirmed.


author: Per Curiam:

text:
    Kenneth E. FROST, Appellant, v. Joe NORWOOD, et al. Appellees.
    No. 119,975
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.
    Robert E. Wasinger, legal counsel, of Ellsworth Correctional Facility, for appellees.
    Before Bruns, P.J., Malone and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Kenneth E. Frost, an inmate at the Ellsworth Correctional Facility, appeals the district court's dismissal of his petition for writ of mandamus. Frost argues that the district court should not have summarily dismissed the petition and that he is entitled to mandamus relief on the computation of his sentence. We conclude the district court reached the correct result in dismissing Frost's petition for writ of mandamus, and we affirm the district court's judgment.

FACTS

In 1990, the district court sentenced Frost to an indeterminate prison term of 3 to 10 years in Jefferson County case 90CR118. A few years later, the district court sentenced Frost to an indeterminate prison sentence of 5 to 20 years in Pawnee County case 92CR111. The Kansas Department of Corrections (KDOC) aggregated both sentences to an indeterminate term of 8 to 30 years.

Frost was initially paroled in February 2001. He violated his parole conditions many times, was returned to custody, and was later released. Ultimately, the State filed new charges against Frost in Johnson County case 05CR597. In that case, the district court sentenced Frost to a determinate sentence of 204 months and ordered the sentence to be served consecutive to his Jefferson County and Pawnee County cases.

On April 27, 2008, Frost was "paroled to his determinate sentence" by the KDOC. While serving that sentence, Frost filed a K.S.A. 60-1507 motion challenging his Johnson County conviction. The record does not reflect the status or the outcome of that case.

In March 2018, the KDOC notified Frost that if his determinate sentence was overturned in the K.S.A. 60-1507 proceeding, his indeterminate sentence "will need to be reviewed prior to release." He was also informed in a letter that cases 90CR118 and 92CR111 would remain inactive "unless Johnson County Case 05CR597 is overturned prior to the original controlling max date associated with the 8-30 year sentence, April 27, 2023. If the Johnson County Case is overturned prior to April 27, 2023, the status of the indeterminate sentences will need reviewed and may change."

Frost disagreed with the KDOC notice about the status of his indeterminate sentence. He initiated the prison grievance process, asking for a declaration that his indeterminate sentence had terminated and could not be reinstated. He argued that holding him on the indeterminate sentence would amount to illegal incarceration. Frost's unit team supervisor responded to Frost's grievance by stating:

"When you paroled to your determinate sentence your prior indeterminate sentences were made inactive and you are now serving 204 months on case # 05CR597. Comments only stated that the old sentence would be reviewed if the new was overturned. As long as there are no changes to your new term your status of only serving on the determinate sentence remains in effect. Your projected release date is 12-03-2022."

Frost again submitted a grievance stating that his indeterminate sentence could not be reviewed in the future because it had legally terminated. Frost's unit team supervisor responded that his grievance "pertains to a classification decision-making process and as such is not grievable." Frost appealed to the warden. The warden agreed with the unit team supervisor but added that "it is impossible for you to receive any relief for something that has not occurred." Frost appealed to the secretary of corrections (the Secretary), who upheld the decisions made by the prison staff.

On May 21, 2018, Frost filed a pro se petition for writ of mandamus under K.S.A. 60-801 in the district court of Ellsworth County, naming the Secretary as the respondent. In the petition, Frost asked the district court to order the Secretary to terminate his indeterminate sentence. Noting that "a consecutive sentence is one which commences at the termination of another term of imprisonment to which an accused has been sentenced," he argued that his indeterminate sentence terminated on April 27, 2008, when he was conditionally released to begin serving his determinate sentence. Frost also filed a motion for appointment of counsel.

On August 8, 2018, the district court summarily dismissed Frost's petition, finding that it failed to state a claim for which he was entitled to relief. The district court ruled:

"Frost argues that when he was paroled from his indeterminate sentences, Jefferson County case 1990-CR-118 and Pawnee County case 1992-CR-111, to his determinate sentence in Johnson County case 2005-CR-597, KDOC must declare his indeterminate sentences terminated. He asserts that to not do so amounts to KDOC illegally detaining him. In response, KDOC states that Frost's grievance is a 'non-grievable issue' per K.A.R. 44-15-105(a)(2). Additionally, Warden Dan Schnurr correctly points out that Frost is not currently being held on his indeterminate sentences and that he cannot be given relief from something that has not occurred. The court agrees, and for these reasons orders that Frost's Petition is dismissed."

Frost timely appealed the district court's judgment. The district court appointed counsel for this appeal.

ANALYSIS

As a preliminary matter, we will address whether Frost's grievance is ripe even though the KDOC will only review Frost's indeterminate sentence if his determinate sentence is overturned in the future. The justiciability doctrine requires that issues be ripe for decision. In other words, "issues must have taken shape and be concrete rather than hypothetical and abstract." State ex rel. Morrison v. Sebelius , 285 Kan. 875, 892, 179 P.3d 366 (2008). Kansas courts do not have the power to give advisory opinions. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016).

Frost complains that holding him on his indeterminate sentence would amount to illegal incarceration because he has already served that sentence. The Secretary notes that Frost is not currently serving his indeterminate sentence and will only be held on the indeterminate sentence in the future if his Johnson County conviction is overturned. If Frost's Johnson County conviction is never overturned, then the KDOC will never review his indeterminate sentence. In that sense, Frost's grievance raises a hypothetical question.

But Frost's appeal raises the question of whether the KDOC had a duty to declare Frost's indeterminate sentence "terminated" when Frost was paroled to his consecutive determinate sentence on April 27, 2008. The KDOC gave Frost notice that his indeterminate sentence may be revived in the future. This issue presents a concrete legal question that can be resolved by interpreting the sentencing statutes. As a result, we conclude that Frost's grievance is ripe for review.

Turning to the merits, Frost argues that the district court should not have summarily dismissed his petition and that he is entitled to mandamus relief on the computation of his sentence. The Secretary no longer argues that this issue is "non-grievable." Instead, the Secretary argues that mandamus relief is inappropriate because Frost had no clear right to relief under K.S.A. 2018 Supp. 22-3717(f), the KDOC had no clear duty to act in the manner Frost demanded, and Frost had an alternative remedy.

"Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law." K.S.A. 60-801. In other words, mandamus is a remedy to compel a public official to perform a clearly defined duty imposed by law and not involving the exercise of discretion. State ex rel. Morrison , 285 Kan. at 907. Mandamus does not lie to enforce a right in substantial dispute. Ambrosier v. Brownback , 304 Kan. 907, 911-12, 375 P.3d 1007 (2016).

"The only acts of public officials that the courts can control by mandamus are those strictly ministerial, meaning the public officer or agent is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety or impropriety of the act to be performed." State ex rel. Stephan v. Kansas Racing Comm'n , 246 Kan. 708, 717, 792 P.2d 971 (1990).

"Mandamus is not a common means of obtaining redress but is available only in rare cases, and as a last resort, for causes which are really extraordinary. Mandamus is not the correct action where a plain and adequate remedy at law exists." Bohanon v. Werholtz , 46 Kan. App. 2d 9, Syl. ¶ 3, 257 P.3d 1239 (2011). Whether mandamus is an appropriate form of relief requires the interpretation of statutes, over which this court has unlimited review. State ex rel. Slusher v. City of Leavenworth , 285 Kan. 438, 443, 172 P.3d 1154 (2007).

Based on these principles, Frost would be entitled to mandamus relief only if he can establish: (1) he has a clear right to relief; (2) the KDOC's duty is clearly defined; and (3) he has no other adequate remedy. Sperry v. Lansing Correctional Facility , No. 116,269, 2017 WL 1534852, at *3 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 988 (2018). Frost contends that K.S.A. 21-4608(c) (now K.S.A. 2018 Supp. 21-6606 [c] ) and K.S.A. 2018 Supp. 22-3717(f) create a duty on the KDOC to declare his indeterminate sentence terminated and release him if and when his determinate sentence is overturned. We will address these statutes in turn.

K.S.A. 2018 Supp. 21-6606(c)

Frost committed his Johnson County crime in 2001 while on parole from his indeterminate sentence. It was mandatory that his Johnson County sentence be served consecutive to his prior sentences under K.S.A. 21-4608(c) (now K.S.A. 2018 Supp. 21-6606 [c] ), which reads:

"Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release."

A "consecutive sentence" is

"a series of two or more sentences imposed by the court in which the minimum terms and the maximum terms, respectively, are to be aggregated, or a series of two or more sentencing guidelines sentences in which the prison terms are to be aggregated pursuant to K.S.A. 2011 Supp. 21-6819 and amendments thereto." K.A.R. 44-6-101(b)(3).

In other words, a consecutive sentence is a series of two or more sentences that are aggregated; and the rules of aggregation vary depending on whether the sentences being aggregated are indeterminate or determinate sentences.

K.S.A. 2018 Supp. 22-3717(f)

The parties agree that K.S.A. 2018 Supp. 22-3717(f) applies (which has not substantially changed since Frost committed his crime). This subsection reads:

"(f) If a person is sentenced to prison for a crime committed on or after July 1, 1993, while on probation, parole, conditional release or in a community corrections program, for a crime committed prior to July 1, 1993, and the person is not eligible for retroactive application of the sentencing guidelines and amendments thereto pursuant to K.S.A. 21-4724, prior to its repeal, the new sentence shall not be aggregated with the old sentence, but shall begin when the person is paroled or reaches the conditional release date on the old sentence. If the offender was past the offender's conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when the person is ordered released by the prisoner review board or reaches the maximum sentence expiration date on the old sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law. The period of postrelease supervision shall be based on the new sentence, except that those offenders whose old sentence is a term of imprisonment for life, imposed pursuant to K.S.A. 21-4628, prior to its repeal, or an indeterminate sentence with a maximum term of life imprisonment, for which there is no conditional release or maximum sentence expiration date, shall remain on postrelease supervision for life or until discharged from supervision by the prisoner review board." (Emphasis added.)

In other words, K.S.A. 2018 Supp. 22-3717(f) coordinates the old indeterminate sentence with the new determinate sentence, but "the old and new sentences are not aggregated, or run consecutively." Turner v. Kansas Department of Corrections , No. 102,954, 2010 WL 3063172, at *5 (Kan. App. 2010) (unpublished opinion). The Turner court cautioned that the statute

"determines only the start of the new sentence , leaving the term of the old indeterminate sentence untouched and unaffected. To hold otherwise would read into the statute something not readily found therein. [Citation omitted.] The current provision delays the running of a new sentence while an inmate is incarcerated on an old indeterminate sentence. Upon parole or conditional release, or upon reaching the maximum sentence expiration date for the old indeterminate sentence, the new sentence begins." 2010 WL 3063172, at *5.

In Turner , the defendant remained subject to his old indeterminate sentence though serving time on a new Missouri sentence. The court held that the Kansas parole board retained authority to act on parole violations. 2010 WL 3063172, at *5-6. Here, Frost was paroled to his determinate sentence. If Frost's determinate sentence is eventually overturned, it does not follow that he would necessarily be free from supervision. And a parolee "is subject to serving out the remainder of his or her prison sentence upon a violation and subsequent revocation of parole status." McGann v. McKune , 21 Kan. App. 2d 798, 801, 911 P.2d 811 (1995).

K.S.A. 2018 Supp. 22-3717(f) does not create a clearly defined duty on the KDOC to declare Frost's indeterminate sentence terminated. And the provision does not say what happens if the determinate sentence is overturned on appeal. Instead, it determines only the start of the new sentence. Thus, the law Frost has cited does not require the KDOC to do what he asks. Mandamus is an extraordinary remedy. Without a clearly defined duty, courts will not issue a writ of mandamus. See Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 620, 244 P.3d 642 (2010). Mandamus relief is not appropriate here. If Frost believes the KDOC has not accurately calculated his sentence, he can challenge the sentence calculation under K.S.A. 2018 Supp. 60-1501. State v. Smith , No. 116,063, 2018 WL 1247181, at *2 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1600 (2018).

Frost cites Price v. Simmons , 31 Kan. App. 2d 631, 632, 71 P.3d 1164 (2002) (Price II) , for the contention that "a consecutive sentence 'is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced.' " He argues this statement supports his view that his indeterminate sentence "terminated" when he was paroled to serve his determinate sentence.

Some background is useful. In Price v. State , 28 Kan. App. 2d 854, 855, 21 P.3d 1021 (2001) (Price I ), Price argued that he was eligible for conversion of his indeterminate sentence because he had served the maximum 20-year sentence for rape and so the rape conviction should not count against him in determining eligibility for the conversion of his aggravated burglary sentence. The KDOC treated Price's convictions as aggregated and, because he had not exhausted the aggregated time, the KDOC said Price was still serving time on the rape charge and his sentence was ineligible for conversion. 28 Kan. App. 2d at 855-56. This court held that the aggregation rules in K.S.A. 21-4608(f) were used to determine the time served on multiple sentences, the sentence begin date, and parole eligibility and conditional release dates, but the aggregation rules were not applicable to determining whether Price's sentence was eligible for conversion. 28 Kan. App. 2d at 858. The court then added:

"Moreover, the State's suggestion that Price is simultaneously serving his sentences for aggravated burglary and rape is erroneous. 'Consecutive sentences may not be treated collectively as one for the aggregate term of all, and the identity of the punishment for each must be preserved.' 24 C.J.S., Criminal Law § 1582. In other words, a consecutive sentence 'is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced. A prisoner serving the first of several consecutive sentences is not serving the other sentences ... the prisoner serves only one sentence at a time.' 24 C.J.S., Criminal Law § 1582. See State v. Bell, 6 Kan. App. 2d 573, 574, 631 P.2d 254 (1981) (defining 'consecutive sentences' as sentences 'following in a train, succeeding one another in a regular order'). As a result, on July 1, 1993, Price was either on conditional release for aggravated burglary or for rape, but not for both offenses." 28 Kan. App. 2d at 858.

In Price II , using "selected terms taken from the text of [Price I ]," Price claimed that, because this court had said consecutive sentences may not be treated collectively, the KDOC had miscalculated his maximum discharge date. 31 Kan. App. 2d at 633. But the court held that for the purpose of establishing Price's maximum discharge date, the two convictions remained aggregated. 31 Kan. App. 2d at 634. Thus, which rules apply depends on the issue. The Price I analysis is limited to conversion determinations. See Anderson v. Bruce , 274 Kan. 37, 50, 50 P.3d 1 (2002) (holding that the fact that an inmate's sentences retained their individual identities for conversion purposes did not entitle the inmate to have his sentences unaggregated to determine parole eligibility, conditional release dates, and time served on multiple sentences).

To sum up, K.S.A. 2018 Supp. 22-3717(f) states that "the new sentence ... shall begin when the person is paroled." That provision does not say the old sentence is "terminated." Frost has not shown that the KDOC has a clearly defined duty to say so. As a result, we conclude the district court did not err in summarily dismissing Frost's petition for writ of mandamus. See Gannon v. State , 302 Kan. 739, 744, 357 P.3d 873 (2015) (finding that if a district court reaches the correct result, its decision will be upheld even though it relied on the wrong ground or assigned erroneous reasons for its decision).

Affirmed.


text:
    STATE of Kansas, Appellee, v. David J. CAMPBELL, Appellant.
    119,077 119,078
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. Leo Robert HILL, Appellant.
    No. 119,602
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019
    Affirmed.


text:
    TCH BUILDERS AND REMODELING and Phil Thelen, Plaintiff and Appellee, v. ELEMENTS OF CONSTRUCTIONS, INC., Jim Ham, and Homes for Our Troops, Inc., Does 1-50; John Does 51-100, Defendants and Appellants.
    DA 18-0324
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: March 26, 2019
    For Appellants: Brian J. West, West Law Firm, PC, Missoula, Montana, J. Andrew Person, Stephen R. Brown, Garlington, Lohn & Robinson, PLLP, Missoula, Montana, Brian Donnelly, Nixon Peabody LLP, Washington, District of Columbia
    For Appellee: Nathan G. Wagner, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 Homes For Our Troops (HFOT) appeals the order entered by the Twentieth Judicial District Court, Lake County, awarding attorney's fees to TCH Builders and Remodeling (TCH). The District Court determined that all fees incurred by TCH for the entire action were recoverable from the construction lien bond posted by HFOT. We consider the following issue, and reverse and remand for further proceedings:

Did the District Court abuse its discretion by assessing all of TCH's attorney fees against the construction lien bond posted by HFOT?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 HFOT is a Massachusetts-based nonprofit corporation that builds custom homes throughout the country and donates them to disabled veterans. In a typical project, HFOT purchases a plot of land, hires a construction company to build a customized home on the plot, and then donates the property free of charge to the veteran and his or her family. In October 2013, HFOT purchased a plot of land in Polson, Montana, planning to build a customized home and donate it to Thomas Parker, a combat Marine veteran who was severely injured in Afghanistan. Pursuant to a written agreement, HFOT hired Elements of Construction, Inc. (EOC), a Georgia company, to serve as general contractor for the project. In December 2013, EOC subcontracted with TCH, a Montana construction company owned and operated by Phil Thelen, to construct the house. The written contract between them stated a contract price of $342,000. HFOT was not party to the contract between EOC and TCH, which included a clause providing attorney fees to the prevailing party in the event of a dispute between them.

¶3 TCH began construction, but difficulties arose between TCH and EOC. In April 2014, EOC became concerned TCH was falling behind the construction schedule and faltering in its management of the project. To address these concerns, EOC sent employee Jim Ham from Georgia to supervise the project's completion. In correspondence, EOC indicated to TCH that "[a]ll costs incurred" in Ham's efforts to "execute this project appropriately ... will be charged to TCH." Tensions continued to rise between EOC and TCH over the next several months, and EOC alleged defects in TCH's work. On November 7, 2014, EOC changed the locks on the doors of the house and locked out TCH. In his testimony, Thelen estimated that only ten percent of the project then remained uncompleted. Following a physical altercation between Ham and Thelen in the driveway to the house, EOC fired TCH, hired new subcontractors to complete the house, and refused to pay the balance that remained under the EOC-TCH contract for TCH's finished work. At this point, TCH had been paid $130,757.06 by EOC.

¶4 TCH filed a construction lien against HFOT's property for $183,242.94, the amount in labor and materials it claimed to have provided to the project that had not been compensated, and initiated this action against EOC and HFOT, claiming breach of contract, foreclosure of the construction lien bond, breach of covenant of good faith and fair dealing, fraud, assault and battery against Ham, and seeking punitive damages. HFOT substituted a bond in place of the lien so that title to the home could be transferred to Thomas Parker while the litigation pended. The bond amount was $274,864.41, or "1 1//2 times the amount of the construction lien," pursuant to § 71-3-551(2), MCA. In its complaint, TCH demanded $183,242.94 under the lien and, alternatively, $211,242.94 in damages for breach of contract, the unpaid amount of the price in the EOC-TCH contract. EOC counterclaimed, alleging breach of contract by TCH.

¶5 After discovery and pre-trial motions, the District Court dismissed all claims against HFOT except for TCH's lien claim against HFOT's bond. A pretrial order was entered by the District Court that contained no factual allegations specific to TCH's lien, and no contentions specific to HFOT, but instead was focused exclusively upon issues specific to TCH's claims against EOC.

¶6 A five-day jury trial was conducted, involving numerous witnesses called by TCH and EOC. HFOT called no witnesses. By special verdict, the jury found in favor of TCH and awarded damages on all of its claims against EOC, except assault and battery, and by supplemental verdict, awarded punitive damages, in the following amounts:

Breach of contract: $ 206,000 Breach of the implied covenant: $ 715,000 Fraud: $ 168,000 Punitive damages: $ 749,000 Total: $ 1,838,000

TCH's lien claim was not included on the verdict form, and the jury made no findings of liability specific to HFOT.

¶7 Post-trial, TCH moved the District Court for foreclosure of the construction lien bond to compensate for "the value of the services and materials provided," as well as prejudgment interest and attorney fees. Entering the $1.838 million judgment against EOC, the District Court noted that "[t]his Judgment shall be subject to a dollar-for-dollar offset in the amount of any monies recovered by Plaintiff TCH against the Cash Bond filed with the Court by Defendant HFOT." The District Court then scheduled a hearing on TCH's attorney fee claims.

¶8 During the hearing, TCH's attorney, Nathan Wagner, called Del Post, a local attorney, as an expert witness regarding attorney fees. Based on an itemized billing statement prepared by Wagner, Post testified TCH had incurred $115,929.80 in attorney fees over the course of the litigation, and opined that these fees were reasonable. Wagner asked Post whether the claims in the case were "so intertwined as to render it impossible to segregate the claims from each other?" Post agreed, stating, "It's my opinion that really the claims of breach of contract, fraud, covenant of good faith and fair dealing, foreclosure of the construction lien and the civil claim for assault and battery-they all involve the identical set of facts, the same set of core facts." Post stated, "there appeared to be a substantial overlapping" in the legal preparation involved for these claims, and that "it is my opinion that it would be impractical-impossible to segregate the attorney time spent on all of the individual claims." Post reasoned that "in order for [TCH] to prevail on a construction lien for Homes For Our Troops, the plaintiff must have prevailed on the contract claim," and that "the plaintiff had to address these claims" to "be entitled to a claim lien on property owned by Homes For Our Troops."

¶9 Following Post's direct examination, the District Court engaged in a colloquy with Wagner and Andrew Person, counsel for HFOT, to clarify the basis for TCH's attorney fees claim, as follows:

THE COURT: Are you pursuing the attorney fees only pursuant to the construction lien statute or also pursuant to the provision in the contract for attorney fees?
MR. WAGNER: Both, your Honor. So there is a construction lien statute that applies for the fee claim against Homes For Our Troops. There is a contract provision that applies to the claim against Elements of Construction. And, as we indicated in our briefing on these issues, obviously we don't intend to pursue double recovery and if fees are recovered from one party, there would be an offset for any fee award against another party.
THE COURT: All right.
MR. PERSON: May I be heard on this, your Honor?
THE COURT: You may. I understand your position is that some of the fees-some of the time spent shouldn't be charged to the construction lien.
MR. PERSON: That's right, your Honor. And also that the-TCH is claiming the entirety of their attorney fees against our bond based on the lien claim and there is no contractual basis that they've argued for that claim; it's purely based on the statute. That's an important distinction.
THE COURT: Right, that's correct.

Later, the District Court again sought to clarify the basis of TCH's attorney fee claim, stating, "Am I misunderstanding? I thought you were also seeking attorney fees pursuant to the contract against Elements of Construction." In response, Wagner said, "That's correct. We're seeking claims arising under both standards; one standard applies to one party and one to the other."

¶10 Person called Wagner to testify and challenged Wagner and Post's assertion that the fees incurred throughout the entire case were inseparable. Person asked Wagner, "Is it your understanding that you could have brought a separate claim to foreclose on the lien?" After an initial denial, Wagner clarified, "is it conceivable that I could have filed two separate lawsuits that could have pursued parallel tracks? That's conceivable." Wagner opined that filing two lawsuits would not have been in his client's best interest, but admitted he "could probably have done that."

¶11 At the close of testimony, Person began objecting to entries in TCH's itemized billing statement that he argued were not attributable to the lien foreclosure, but rather to the claims TCH had brought directly against EOC. Person argued "the majority" of the entries on the statement "involved the breach of contract claim against the party that the jury found numerous claims against" and that "the occasional reference to a lien" in the statements was "incidental" to the primary purpose of the litigation. Person objected to 64 individual entries before the District Court interrupted, asked him to discontinue his oral objection, and instead to mark the billing entries to which he objected upon TCH's itemized billing statement. The District Court admitted into evidence the itemized statement with HFOT's objections as Exhibit 1. ¶12 During post-testimony argument, the District Court stated several times that "the only evidence" offered at the hearing indicated that the fees associated with the lien foreclosure were inseparable from the fees incurred in litigating the claims against EOC. The District Court stated, "the only testimony I have here, the only evidence I have here" was that "all of this work was necessary in order to foreclose the lien and also necessary in order to prove the breach of contract." In response, Person urged the District Court to look more broadly to the entire proceeding, arguing the "jury trial involve[d] extensive questions unrelated to the lien claim" and "the Court has before it extensive legal briefing on the question of whether ... the plaintiff is entitled to recover the entirety of the fees associated with the jury trial [against] an innocent property owner's bond." Person stated, "You have the fees' list in front of you, your Honor.... This Court can look at these records. And this Court, your Honor, also sat through the entire jury trial...."

¶13 The District Court entered an order holding that all attorney fees incurred by TCH throughout the course of the proceeding, in the amount of $120,981.05, were payable from the bond posted by HFOT. The District Court examined the factors set forth in Plath v. Schonrock , 2003 MT 21, ¶ 36, 314 Mont. 101, 64 P.3d 984, in determining a reasonable amount of fees to be awarded, but provided no analysis regarding HFOT's arguments, stating only that "the attorney's fees incurred by TCH in this action all arose from a common set of facts, and cannot be segregated into separate categories." The District Court did not grant or discuss HFOT's objections to entries in the itemized billing statement as not attributable to the foreclosure of the lien.

¶14 HFOT appeals.

STANDARD OF REVIEW

¶15 We review a district court's decision to grant or deny attorney fees for abuse of discretion. Wohl v. City of Missoula , 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119. We have repeatedly held that a district court's determination of what constitutes reasonable attorney fees is a discretionary task, which this Court will not disturb in the absence of an abuse of that discretion. Plath , ¶ 39 (citing Morning Star Enters. v. R. H. Grover, Inc. , 247 Mont. 105, 114, 805 P.2d 553, 559 (1991) ). "In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice." Morning Star Enters. , 247 Mont. at 114, 805 P.2d at 559 (quoting Carkeek v. Ayer , 188 Mont. 345, 348, 613 P.2d 1013, 1015 (1980) ).

DISCUSSION

¶16 Did the District Court abuse its discretion by assessing all of TCH's attorney fees against the construction lien bond posted by HFOT?

¶17 EOC has not appeared in this appeal, and no part of the jury verdict is here challenged. Neither has HFOT challenged the District Court's determination, pursuant to the Plath reasonableness factors, of the total attorney fees awarded to TCH in the action, in the amount of $120,981.05. Thus, these determinations will not be disturbed on appeal. Further, HFOT concedes that TCH is entitled to an award of attorney fees against HFOT-but one properly related to the lien foreclosure issue litigated between the parties.

¶18 Attorney fees may be awarded only when a contract or statute provides for their recovery. Blue Ridge Homes, Inc. v. Thein , 2008 MT 264, ¶ 78, 345 Mont. 125, 191 P.3d 374. Because the jury found EOC breached its contract with TCH, a contract that provided attorney fees to the prevailing party in a dispute, TCH was entitled to a contractual award of fees against EOC. Then, § 71-3-124, MCA, authorizes an award of fees when foreclosing a construction lien, which was successfully prosecuted here against HFOT. Thus, the statement made by TCH's counsel during the colloquy between the District Court and the parties in the fee hearing, quoted above, was right-"there is a construction lien statute that applies for the fee claim against Homes For Our Troops. There is a contract provision that applies to the claim against Elements of Construction."

¶19 Likewise, the statement made by HFOT's counsel was right, that "TCH is claiming the entirety of their attorney fees against our bond based on the lien claim and there is no contractual basis.... That's an important distinction." HFOT argues that "by refusing to segregate fees between those awardable against EOC under its contract with TCH and those awardable against HFOT pursuant to TCH's lien claim," the District Court erred in the application of § 71-3-124(1), MCA, and the statute's award of "reasonable" attorney fees for a lien foreclosure. TCH disagrees, arguing, "The District Court correctly determined that TCH, as the prevailing party in an action on a construction lien bond, is entitled to receive the full amount of its attorney's fees because the uncontested evidence established that the attorney's fees were reasonably incurred and inextricably intertwined."

¶20 We start with the general rule that, in actions involving multiple claims or theories, attorney fee awards "must be based on the time spent by the prevailing party's attorney on the claim or theory under which attorney fees are allowable." Nw. Nat'l Bank v. Weaver-Maxwell, Inc. , 224 Mont. 33, 44, 729 P.2d 1258, 1264-65 (1986) (emphasis added); Thein , ¶ 78. Thus, courts are charged with evaluating attorney effort expended on multiple claims to allocate the fees applicable to each claim, and to award fees based upon that allocation.

¶21 It is correct, as TCH argues, that we have recognized an exception to the general rule for "intertwined" claims. Thein , ¶ 78. However, courts must be careful in applying the exception, for it could result in statutory fee awards for claims not encompassed by the statute, and overbroad application of fee statutes. As we explained in Thein , the exception is to be applied in cases "where it is impossible to segregate the attorney's time between claims entitling the party to attorney fees and other claims." Thein , ¶ 79 (citation omitted) (emphasis added). We approved intertwined fees in Thein after concluding, among other factors, that the claims at issue "involved identical facts and theories." Thein , ¶ 79. In contrast, fees for a defamation claim were separated out as not "inextricably intertwined." Thein , ¶ 77. Importantly, we noted the extensive inquiry made by the district court to analyze the claims, Thein , ¶ 79, underscoring the sincere effort courts must undertake to sort through the claims and assess attorney effort in determining statutory fees, so that the exception does not swallow the rule. Many cases will involve claims in addition to a claim for which statutory fees are eligible.

¶22 One tool for courts assessing these issues is an overview of the proceeding or record as a whole, which we have repeatedly approved. In Mandell v. Ward , 2016 MT 205, ¶ 29, 384 Mont. 377, 377 P.3d 1228, the district court relied on expert testimony offered at the fee hearing in a lien case to the effect that fees were inseparable between the multiple claims. However, we rejected that finding as clearly erroneous after reviewing the record as a whole, concluding the lien issue was "largely" settled in a summary judgment order prior to trial, and thus, the attorney fees incurred for the lien claim could be separated from fees incurred litigating other claims. Mandell , ¶ 29. See also Kenyon-Noble Lumber Co. v. Dependant Founds., Inc. , 2018 MT 308, ¶ 32, 393 Mont. 518, 432 P.3d 133 (upholding the district court's award of attorney fees "[a]fter a review of the full record"); Morning Star Enters. , 247 Mont. at 114, 805 P.2d at 558 (affirming the district court's award of attorney fees due to its reliance on the factors of reasonableness, expert testimony, and the length and scope of litigation, including specific reference to "five days of trial, seven witnesses, 169 exhibits, and numerous issues");

DeVoe v. Gust. Lagerquist & Sons , 244 Mont. 141, 146, 796 P.2d 579, 582 (1990) ("We have reviewed the record and conclude that the lower court did not abuse its discretion in awarding attorney fees.").

¶23 Here, despite HFOT's urgings that the District Court had "sat through the entire jury trial" and should consider those proceedings, the court, according to its statements quoted above, felt confined in its review to the testimony offered at the fee hearing. While expert testimony is very appropriate and can be helpful to the fee determination, courts are not restricted to that testimony, but are free to also consider the record of the proceeding as a whole. Mandell , ¶ 29.

¶24 An overview of the proceeding here readily reveals that the trial, as framed by the pre-trial order and as litigated, was about much more than TCH's lien claim against HFOT. Starting with the lien issue, we note that, unlike the bases for TCH's other claims, a construction lien is "a creature of statute, remedial in nature, with its foundation in equity and natural justice." dck Worldwide Holdings v. CH SP Acquisition LLC , 2015 MT 225, ¶ 17, 380 Mont. 215, 355 P.3d 724 (citation omitted). It is designed to secure for "[a] person who has furnished services or materials pursuant to a real estate improvement contract" payment for the "unpaid part of the person's contract price." Section 71-3-526, MCA. "[I]t is not the contract for erecting or repairing the building which creates the lien, but it is the use of the materials furnished and the work and labor expended by the contractor" that serves as the basis for the lien. dck Worldwide Holdings , ¶ 17 (quoting Smith v. Gunniss , 115 Mont. 362, 376, 144 P.2d 186, 189 (1943) ).

¶25 Despite the equitable nature of lien foreclosure, TCH argues its breach of contract claim against EOC was related to the lien claim against HFOT, because the outcome would determine the amount, if any, HFOT had to pay. This is correct, as the "contract price" a lienholder may recover in a lien foreclosure proceeding is "increased or diminished by: (i) the price of change orders or extras; (ii) any amounts attributable to altered specifications; or (iii) a breach of contract, including but not limited to defects in workmanship or materials." Section 71-3-522(3), MCA. HFOT's argument that "[n]othing in the trial involved any foreclosure issue," while technically correct, fails to account for the impact of the jury's determination of the contract issues on the ultimate resolution of the lien claim. Despite playing a passive role in the proceeding, HFOT had "skin in the game" at the trial.

¶26 However, even recognizing that the breach of contract issues affected HFOT's lien obligation, much of the trial did not. HFOT was not alleged to have committed fraud, failed to act in good faith and fair dealing, committed assault, engaged in conduct warranting punitive damages, or even otherwise acted to breach the contract-claims for which the jury awarded 90% of the damages. These claims did not generally "involve[ ] identical facts and theories" with the lien claim against HFOT. Thein , ¶ 79. While it is proper to recognize that TCH's counsel's trial effort overlapped in some degree to all claims, the trial's substance and verdict demonstrate that the assessment of the entirety of TCH's attorney fees against HFOT's bond was inequitable, arbitrary, and not "reasonable." Section 71-3-124(1), MCA. This reality is illustrated by the numerous entries in TCH's itemized billing statement that HFOT objected to during the fee hearing as unrelated, but which were summarily dismissed without apparent consideration by the court. While a court need not approve or reject claimed fees in entry-by-entry detail, the large number of objectionable entries here underscore HFOT's supportable position that significant trial effort was unrelated to the lien issue.

¶27 "[T]he proper determination of a legal fee is central to the efficient administration of justice and the maintenance of public confidence in the bench and bar." Plath, ¶ 39 (quoting Crncevich v. Georgetown Recreation Corp ., 168 Mont. 113, 120, 541 P.2d 56, 59 (1975) ). "[R]easonableness of attorney's fees must be ascertained under the facts of each case." Morning Star Enters. , 247 Mont. at 114, 805 P.2d at 558.

¶28 We reverse and remand for redetermination of the amount of fees to be assessed against HFOT's bond, in light of this opinion. The District Court may employ such further proceedings or filings from the parties as it deems necessary, in its discretion, to redetermine the issue on remand.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

BETH BAKER, J.

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

      This amount is used for purposes of this Opinion, but testimony was offered at trial to adjust the exact calculations.

      TCH originally named Parker as a defendant, but he was dismissed from the action by the District Court.

      Exhibit 1 has not been included with the hearing transcript in the record on appeal, which prevents a complete review of the billing entries to which HFOT objected. Person had objected to 64 entries at the time the District Court asked that he discontinue his oral objections and submit them by indication on the itemized statement. Thus, while there were at least 64 entries objected to, there may well have been more.

      More specifically, the statute grants "attorney fees incurred for filing and recording the lien and reasonable attorney fees in the district and supreme courts." Section 71-3-124(1), MCA.