text:
    Don and Reba COX, and Robert E. Cox, Appellants, v. COMMUNITY STATE BANK, Appellee.
    No. 119,375
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Stephen P. Weir, of Stephen P. Weir, P.A., of Topeka, for appellants.
    M. Doug Bell, of Hall, Levy, DeVore, Bell, Ott & Kritz, of Coffeyville, for appellee.
    Before Malone, P.J., Schroeder, J., and McAnany, S.J.
    MEMORANDUM OPINION
   Per Curiam:

Banks expect to be repaid on their loans. Robert Cox, Don Cox, and Reba Cox each obtained multiple commercial loans from the Community State Bank (formerly Condon Bank) (Bank). Don and Reba are Robert's parents. Robert, Don, and Reba initiated this litigation claiming, among other things, Bank acted negligently because it misapplied payments to their various commercial loan accounts. Bank filed a counterclaim against Robert, Don, and Reba claiming each failed to timely pay or otherwise comply with the terms of their notes, mortgages, and security agreements with Bank. Bank moved for summary judgment on its counterclaims, but Robert, Don, and Reba failed to respond. The district court granted Bank's summary judgment motion on its counterclaims for judgment on the various commercial notes and for foreclosure of the mortgages and security agreements. Robert, Don, and Reba moved to alter or amend the summary judgment order, alleging excusable neglect in their failure to timely respond. The district court denied their request, finding no excusable neglect. Bank then moved for summary judgment on the claims Robert, Don, and Reba raised against Bank. Although Robert, Don, and Reba timely opposed the motions, the district court granted summary judgment in favor of Bank, finding no genuine issues remained. Robert, Don, and Reba now argue the district court erred in granting the first summary judgment, denying their request to amend that judgment, and granting the second summary judgment. Robert, Don, and Reba's cases have been consolidated on appeal.

FACTS

Robert's loans

Robert's relationship with Bank was extensive, and he entered into the following commercial notes, mortgages, and security agreements:

• A 2008 commercial note and mortgage for $21,920 on Robert's property in Coffeyville, Kansas. The mortgage contained a cross-collateralization clause securing any previous and future obligations.
• A 2010 security agreement granting Bank a security interest in all of Robert's inventory, equipment, and accounts, including any property he acquired after the agreement.
• A 2010 commercial note to buy a 2010 Dodge pickup listing the pickup as collateral.
• A 2011 commercial note for $12,987.18, with Robert's pickup, 2010 security agreement, and mortgage as collateral.
• Another 2011 commercial note for $8,117.75, with Robert's 2011 PJ 40-foot flat deck trailer as collateral.
• A 2011 security agreement granting Bank a security interest in the trailer and a cross-collateralization clause securing all previous and future obligations.

All of Robert's agreements contain similar language. Under the four promissory notes and cross-collateralization agreements, default by Robert on one loan allowed Bank to call all the notes due and payable. In the event of Robert's default, the notes, mortgage, and security agreements provided Bank with several remedies. First, Bank could declare the entire unpaid balance immediately due. Next, Bank could request judicial foreclosure of the mortgaged property and sell it. Third, Bank could repossess the collateral listed in the security agreements and sell it. Finally, Bank could set-off any of Robert's loans or his security agreements with other payments Bank received from him.

In 2011, Robert fell behind on paying Bank, missing multiple payments. In 2013, Bank repossessed the pickup and trailer. Bank eventually sold the pickup to pay off the first 2010 commercial note.

Don and Reba's loans

Don and Reba agreed to at least seven commercial loans with Bank, but the parties did not include all of those agreements in the record on appeal. The appellate record includes the following notes and security interests Don and Reba made with Bank:

• A 2009 commercial loan to Don for livestock and a signed security agreement providing Bank with a security interest in Don's inventory, equipment, and livestock.
• An April 2010 loan to Don for $55,029.63 with Don's 2009 security agreement as collateral.
• An April 2010 loan to Don for $13,610.43 to purchase a car listing the car as collateral.
• An August 2010 loan to Don and Reba for $115,946.68. Don and Reba gave Bank a mortgage on their property and a security agreement granting Bank a security interest in a 2010 Dodge 3500 diesel pickup, farm products, livestock, farm equipment, and all after-acquired property. The loan was also secured by Don's 2009 security agreement.
• A 2014 workout agreement between Don and Bank to resolve several outstanding loan-related issues. The specifics of the agreement are not necessary for us to resolve the issues of this appeal. However, the parties specifically agreed their other notes and security agreements would take precedence if they conflicted with their new agreement.

The security agreements, commercial loans, and mortgage all contained similar language. Under those agreements, default by Don and Reba on one loan allowed Bank to call all the notes due and payable. The mortgage required Don and Reba to maintain insurance and pay their property taxes when due. The agreements also gave Bank the same default remedies against Don and Reba that Bank had against Robert. All of Don and Reba's security agreements and the mortgage contained cross-collateralization clauses securing any after-acquired property and all other amounts now or in the future owed by Don and Reba to Bank.

Bank repossessed the 2011 PJ trailer and in the process damaged Don and Reba's gate, so they sued Bank.

Robert's suit

Robert filed a pro se lawsuit against Bank, but the district court ordered Robert to make a more definite statement. Robert hired counsel, who filed an amended petition. Robert alleged he made multiple payments and Bank misapplied those payments to real estate taxes, his "operating loan," or even the wrong note. According to Robert, Bank's actions resulted in Robert's default and Bank repossessed his pickup without proper notice. Robert claimed Bank was liable for negligence and for failing to provide a notice of consumer right to cure under K.S.A. 16a-5-110.

Bank filed an answer denying Robert's claims and alleging counterclaims against him. According to Bank, Robert defaulted on his 2011 loans listing his pickup and trailer as collateral because he did not timely pay. His default on his 2011 loans caused Robert to default on the 2008 mortgage loan. Based on Robert's alleged defaults, Bank claimed it was entitled to collect all balances owed, foreclose on the 2008 mortgage, and seize the collateral in the security agreements. Bank also argued it was entitled to costs and attorney fees as described in the agreements.

Robert's counsel withdrew, so Don filed an answer to Bank's counterclaims on Robert's behalf, but Robert did not sign it. Robert's answer denied he made late payments on the 2011 loan secured by his pickup and again claimed Bank misapplied his payments to the wrong note. Robert also alleged he was current on the 2008 mortgage and promissory note, but those agreements were not connected to any other obligation with Bank. Robert claimed he paid his 2010 pickup loan in full. He failed to mention the 2011 security agreement listing the trailer as collateral.

Don and Reba's suit

Don and Reba first filed a pro se petition for conversion against Bank, but the district court ordered Don and Reba to provide a more definite statement. They hired an attorney who prepared their first amended petition.

According to their petition, Don and Reba had a right to recover against Bank for negligence, breach of contract, two violations of Kansas consumer notice requirements under K.S.A. 16a-5-110, and trespass to chattel.

They alleged Bank committed negligence in two respects. First, Don and Reba alleged in 2012 Don delivered a check for $38,010.29 from the proceeds of the sale of the livestock secured in their 2010 security agreement. Don also delivered $10,000 in cash for Bank to apply to other loans. They claimed they owed $27,000 for their livestock loan, but Bank failed to apply the check to the proper loan. Next, Don and Reba alleged Bank took several of their payments and applied those to Robert's loans. Based on Bank's misapplication of these payments, Don and Reba claimed they became delinquent in their own loans.

For their breach of contract claim, Don and Reba alleged Bank forced them to purchase insurance on their mortgaged property. They claimed the mortgage and promissory note did not require they purchase insurance to cover the house.

Don and Reba also claimed in June 2013 bank employees repossessed a 2011 PJ trailer and a Lincoln car without providing a consumer notice under K.S.A. 16a-5-110. During the repossession, Don and Reba alleged bank employees entered their land, broke the gate, and had no security interest in the 2011 PJ trailer. Accordingly, they raised a claim against Bank for trespass to chattel.

As a result of repossessing the trailer, Don and Reba alleged Reba was unable to operate her business. Don and Reba also claimed they paid all of their loans in full, but Bank refused to release its lien on their Kenworth truck and trailer.

It would appear Bank filed an answer and counterclaims, but the parties did not include those documents in the appellate record. However, the record reflects Don filed a pro se answer to Bank's counterclaims. Don's answer alleged Bank never applied the $38,010.29 from the proceeds of the sale of the livestock or the $10,000 in cash to his mortgage or to the payment "that was due on the day [he] presented the check to the bank." He admitted he signed an agreement with Bank in September 2014 but claimed he signed it under "extreme duress." He also claimed he did not represent Reba or her company, C&C Transports, when he signed the 2014 agreement. He claimed Bank had no claim to the 2011 PJ trailer. He claimed his 2011 loan was to purchase a 2005 Kenworth truck and a 2006 Fontaine trailer. Don believed he paid off the vehicle loans and claimed Bank would not release the lien or sign an insurance check after the Kenworth truck was involved in a wreck. Accordingly, Don argued Bank shut down his business. Don argued his mortgage was current and Bank had misapplied over $11,000 in principal payments.

Motions for summary judgment

First summary judgment against Robert, Don, and Reba

In April 2016, Bank moved for summary judgment on its counterclaims against Robert. Bank included a supporting affidavit and other documents. Bank argued Robert's answer was procedurally defective because neither Robert nor an attorney of record had signed it. Next, Bank argued it was entitled to summary judgment because Robert failed to controvert Bank's claims in his answer.

Bank also moved for summary judgment on its counterclaims against Don and Reba. Bank explained it applied Don's check for the sale of livestock to seven of his past due accounts. Bank argued it had a right to do so because the security interest securing the livestock also secured Bank's future advances to Don. Bank alleged Don and Reba defaulted on their mortgage because they failed to insure the property and pay real estate taxes. Bank also claimed Don and Reba defaulted on their August 2010 loan because they still owed for that loan and a default on the mortgage was a default on all agreements.

Bank timely served Robert, Don, and Reba, but they failed to respond to Bank's motions for summary judgment. Thirty days after Bank moved for summary judgment, the district court granted it. The district court adopted all the uncontroverted facts set out by Bank and allowed foreclosure of the mortgages, trailer, and all inventory, equipment, and accounts under the mortgages and security agreements.

Nearly two weeks later, Don filed motions in each case for an extension of time in both cases "while we acquire an attorney for the purpose of agreeing on a case management order with the [defendants'] attorney."

After hiring counsel, Robert, Don, and Reba moved to alter or amend the summary judgments. Robert claims he had been out of town working and never received a copy of the motion. Don and Reba also explained they were out of state working when Bank moved for summary judgment and the court granted the motion. They each argued they were entitled to an extension for time to respond under K.S.A. 2018 Supp. 60-256(f) and K.S.A. 2018 Supp. 60-260(b) for excusable neglect. They also claimed the court's order was defective for failing to state findings of facts and conclusions of law.

The district court denied Robert, Don, and Reba's request, finding they were pro se litigants when each was properly served with Bank's motions for summary judgment. The district court also found Robert, Don, and Reba failed to respond because they were traveling for work and failed to monitor their mail. The district court noted it was foreseeable they would receive correspondence about the case while traveling. The court found it had incorporated all the uncontroverted facts in Bank's summary judgment motions and its conclusions of law were adequate.

Second summary judgment against Robert

Bank moved for summary judgment against Robert's claims, alleging there were no genuine issue of material facts. Bank attached copies of Robert's financial agreements. Bank argued Robert could not recover on his negligence claim because the court had found Robert in default in its previous summary judgment order. Bank restated the following uncontroverted facts from that order:

• Robert defaulted on the 2011 loans for the pickup and trailer because he did not timely pay them;
• Robert defaulted on the 2008 loan for failing to timely pay his 2011 loans; and
• Robert gave Bank a mortgage and security interest in his business inventory, equipment, accounts, and trailer.

Bank argued it could apply the proceeds from the sale of the pickup to any loan it chose based on Robert's signed agreements and Ram Co. v. Estate of Kobbeman , 236 Kan. 751, 756, 696 P.2d 936 (1985).

Bank also argued Robert could not recover for his claim of a consumer notice violation under K.S.A. 16a-5-110 since the pickup loan was for Robert's business, not his personal use. Bank attached a copy of the disbursement request Robert signed which acknowledged Robert's 2010 promissory note was for a business purchase.

Robert filed a pro se "motion to deny summary judgment." In it, Robert argued he had no previous opportunity to present his claims to the court. He claimed the court could resolve his claims with witnesses and documents he would provide later, and there were "many reasons" Bank's motion for summary judgment should be denied.

Robert then tried to challenge the uncontroverted facts the district court adopted in its previous summary judgment order. He admitted the copies of the agreements Bank submitted to the court were correct, but Robert denied the underlying circumstances about the alleged defaults.

To support his facts, Robert attached Bank transactions for the 2008 loan, the 2010 pickup loan, and the 2011 loans secured by the pickup and trailer loan. These documents showed Robert made late payments for nearly two years on his 2010 and 2011 loans. By the end of June 2013, Robert owed two payments on the 2010 pickup loan, over three payments on one of his 2011 loans, and one payment on his other 2011 loan.

The district court granted Bank summary judgment against Robert's negligence and consumer notice claims. The district court found Robert was not entitled to recover for his negligence claim against Bank. The district court noted proceeds from the sale of the pickup were applied to more than one loan. Upon sale of collateral, the district court determined Bank had authority to apply those payments to any of the loans. Additionally, the district court noted the previous uncontroverted facts established Robert's loans were in default and default on one note established default on all of Robert's loans.

The district court also found Robert could not recover under K.S.A. 16a-5-110 because the statute controls consumer loans and Robert's loans were for his business. Given these facts, the court found there was no genuine issue remaining and summary judgment against Robert was appropriate.

Second summary judgment against Don and Reba

Bank moved for summary judgment against Don and Reba. However, the parties failed to submit a full copy of Bank's motion, memorandum, and exhibits in the appellate record. Instead, the parties included only some of Don and Reba's loan agreements in the record.

Don and Reba responded to Bank's motion, raising the same arguments lodged in their petition and answer to Bank's counterclaims. They also claimed the 2011 PJ trailer belonged to Reba and was not secured by any agreement signed by her. They agreed Bank provided a replacement gate for the gate damaged at the time of repossession, but Don and Reba claimed the gate was "cheap" and never installed it. Don and Reba claimed Bank recently generated a consumer right to cure letter under K.S.A. 16a-5-110, but the letter was not timely and did not comply with the statutory requirements.

The district court granted Bank summary judgment against Don and Reba's claims. The district court applied the uncontroverted facts from the first summary judgment order to support this summary judgment order.

The district court also found there were no facts to support Don and Reba's claims of negligence because it had ruled Bank properly applied Don and Reba's payments to their loans. The district court did not address whether Bank misapplied some of Don and Reba's payments to Robert's accounts. The district court found no breach of contract because Bank did not improperly force Don and Reba to purchase insurance on real estate or misapply mortgage payments. The district court noted they agreed in the 2010 mortgage to provide insurance for the real estate, but Don and Reba failed to keep the property insured and timely pay their real estate taxes. Based on their agreement, the district court found either event resulted in default. Accepting the affidavit from Bank's vice president, the district court found Bank had already resolved Don and Reba's trespass to chattels claim by paying to replace Don and Reba's gate.

The district court also ruled Don and Reba were not entitled to recover under K.S.A. 16a-5-110 because they purchased their 2011 trailer with a business loan, not a consumer loan. The district court also found Bank sent a consumer right to cure notice to Don and Reba for the 2006 Lincoln Towncar. Finally, the district court found Bank had the right to repossess the 2011 PJ trailer because Don and Reba agreed to provide it as collateral in the August 2010 security agreement. The agreement provided all future acquired property became secured collateral for their loans.

ANALYSIS

Bank claims Don, Reba, and Robert are barred from appealing the district court's first summary judgment order because their notice of appeal includes no reference for that order.

The right to appeal is entirely statutory and is not a right contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Wiechman v. Huddleston , 304 Kan. 80, Syl. ¶ 1, 370 P.3d 1194 (2016).

The notice of appeal must specify the parties taking the appeal, designate the judgment or part thereof appealed from, and name of the appellate court to which the appeal is taken. K.S.A. 2018 Supp. 60-2103(b). See Walker v. Regehr , 41 Kan. App. 2d 352, 354, 202 P.3d 712 (2009). The appellate courts should liberally construe K.S.A. 2018 Supp. 60-2103(b) to assure justice in every proceeding. 41 Kan. App. 2d at 355-56.

Here, the notices of appeal were filed pro se by Robert, Don, and Reba. Their notices explain they are appealing the judgment entered on April 2, 2018, when the district court granted the second summary judgment for Bank. When the district court issued this summary judgment, it primarily relied on the first summary judgment. Liberally construing K.S.A. 2018 Supp. 60-2103(b) to assure justice in this proceeding, we find the notice of appeal is sufficient. See Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015).

The district court did not err in granting Bank summary judgment on its counterclaims against Robert, Don, and Reba.

Robert alleges the district court erred in granting the first summary judgment against him. Robert claims Bank's uncontroverted facts could not support its counterclaims against him and his answer controverted Bank's facts. His arguments lack merit.

Don and Reba also argue the district court erred in granting Bank summary judgment on its counterclaims. Much like Robert, Don and Reba argue Bank's uncontroverted facts could not support its counterclaims. They also argue Don's answer controverted Bank's facts. These arguments also lack merit.

" ' "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." ' [Citation omitted.]" Patterson v. Cowley County, Kansas , 307 Kan. 616, 621, 413 P.3d 432 (2018).
" '[T]he only effect of a non-movant's failure to respond to a motion for summary judgment is that it constitutes an admission ... that there are no disputed issues of genuine fact warranting a trial; it does not constitute a waiver by the non-moving party of all legal arguments based upon those undisputed facts.' [Citations omitted.]" Lumry v. State , 305 Kan. 545, 566, 385 P.3d 479 (2016).

When Bank moved for summary judgment on its counterclaims, it relied on two forms of evidence-the affidavit from its vice president and copies of Robert, Don, and Reba's agreements with Bank. Bank's vice president confirmed Robert, Don, and Reba still owed a balance on their various loans. The vice president explained Bank disposed of some of Robert's collateral and after Bank applied the proceeds, Robert still owed on his remaining loans. Bank could demand full payment of Robert's loans at any time under the terms of the commercial loans and security agreements because Robert defaulted on his loans. As to Don and Reba's loans, the affidavit from the vice president and loan documents showed Don and Reba were in default on some, if not all, of their notes for missed payments.

The commercial loan documents, including the security agreements, provided a default on one loan could be considered a default on all loans allowing Bank to foreclose all notes, security agreements, and mortgages, seize the collateral, and sell it.

There was no genuine issue of material facts, and the district court did not err in granting Bank summary judgment on its counterclaims against Robert, Don, and Reba. Robert, Don, and Reba had the burden to present evidence to the district court to dispute Bank's facts. See Patterson , 307 Kan. at 621. Robert, Don, and Reba provided no evidence to dispute Bank's material facts. They did not respond to Bank's summary judgment motion, and their initial answers to the counterclaims failed to controvert the motion for summary judgment. Additionally, Robert did not sign his answer. By failing to respond to Bank's material facts, Robert, Don, and Reba admitted to them. There was no genuine issue to preclude summary judgment. See Lumry , 305 Kan. at 566.

The district court did not err in denying Robert, Don, and Reba's motion to alter or amend the first summary judgment.

Robert, Don, and Reba contend the district court erred in denying their motion to alter or amend the first summary judgment against them. They argue they were entitled to relief either under K.S.A. 2018 Supp. 60-256(f), K.S.A. 2018 Supp. 60-260(b), or because the district court's summary judgment order was allegedly insufficient. Although it is less than clear from their appellate brief, it appears Robert, Don, and Reba intend to argue the district court erred as an abuse of discretion. See First Nat'l Bank in Belleville v. Sankey Motors, Inc. , 41 Kan. App. 2d 629, 634, 204 P.3d 1167 (2009) (the district court's decision whether to set aside a default judgment will be disturbed only on appeal upon a showing of abuse of discretion); see also Morton County Hospital v. Howell , 51 Kan. App. 2d 1103, 1112, 361 P.3d 515 (2015) (a district court's denial of a K.S.A. 2014 Supp. 60-260(b) motion is reviewed for abuse of discretion). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015).

No relief under K.S.A. 2018 Supp. 60-256(f)

Robert, Don, and Reba appear to argue the district court erred as a matter of law when it denied their request to alter or amend the first summary judgment under K.S.A. 2018 Supp. 60-256(f). Their argument raises a question of 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). 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. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).

K.S.A. 2018 Supp. 60-256(a) allows a party claiming relief to move for summary judgment. To oppose this motion, the nonmovant must respond within 21 days after the motion is served. K.S.A. 2018 Supp. 60-256(c)(1)(B). If a party opposing a motion shows by affidavit that it cannot present facts essential to justify the motion's opposition, the district court may deny the motion for summary judgment; order a continuance to enable affidavits or declarations to be obtained, depositions to be taken or other discovery to be undertaken; or issue any other just order. K.S.A. 2018 Supp. 60-256(f)(1)-(3).

Applying the record to the plain language of K.S.A. 2018 Supp. 60-256(f) shows Robert, Don, and Reba are not entitled to relief because they never opposed Bank's motions for summary judgment before the district court granted them. Under K.S.A. 2018 Supp. 60-256(c)(1)(B), Robert, Don, and Reba had 21 days to respond to Bank's motions. If they were unable to present facts essential to justify opposing Bank's motions, they should have requested relief under K.S.A. 2018 Supp. 60-256(f) before their 21 days expired. They failed to do so because they were representing themselves, out of town, and not checking their mail. Bank's uncontroverted facts in its summary judgment motions became admitted facts because Robert, Don, and Reba failed to timely controvert the facts within 21 days after the summary judgment motions were filed. See Lumry , 305 Kan. at 566. To allow Robert, Don, and Reba to obtain relief after the district court granted summary judgment goes against the plain language of K.S.A. 2018 Supp. 60-256 and reads words not readily found within the statute-something this court cannot do. Ullery , 304 Kan. at 409.

No relief for excusable neglect under K.S.A. 2018 Supp. 60-260(b)

Robert, Don, and Reba next argue the district court should have granted relief from the judgment because of excusable neglect-they were working out of town when Bank served them with its motion for summary judgment. To support this argument, Robert, Don, and Reba cite Montoy v. State , 275 Kan. 145, 155, 62 P.3d 228 (2003). This case does not apply because none of the parties in Montoy moved for summary judgment and the district court granted summary judgment sua sponte. 275 Kan. at 147, 151. Robert, Don, and Reba also rely on Green v. Kaesler-Allen Lumber Co. , 197 Kan. 788, 791, 420 P.2d 1019 (1966). But the plaintiffs in Green engaged in deposition testimony and that testimony provided a genuine issue of material facts. 197 Kan. at 791. Robert, Don, and Reba provided no evidence or testimony to create a genuine issue of material fact before the district court granted Bank summary judgment on its counterclaims.

Most Kansas cases addressing excusable neglect under K.S.A. 2018 Supp. 60-260(b) do so when the district court granted default judgment against a party, not summary judgment. See, e.g., First Management v. Topeka Investment Group, LLC , 47 Kan. App. 2d 233, 240, 277 P.3d 1150 (2012). Even so, excusable neglect is grounds for relief from either default or summary judgment. K.S.A. 2018 Supp. 60-260(b). Excusable neglect has no clear definition and must be determined on a case-by-case basis. Jenkins v. Arnold , 223 Kan. 298, 299, 573 P.2d 1013 (1978). In default judgment cases, excusable neglect exists when a party to the suit is not responsible for a failure to reply to the petition or counterclaim. See Montez v. Tonkawa Village Apartments , 215 Kan. 59, 64, 523 P.2d 351 (1974). In Montez , the defendant company's apartment manager misplaced a copy of the initial pleadings served on him. No one else knew of the lawsuit. When the defendants learned about the suit, they moved to set aside the default judgment within 12 days. Additionally, Montez could show no prejudice to her if the judgment was set aside, other than having to prove her case. Based on those facts, the Kansas Supreme Court found the defendants established excusable neglect. 215 Kan. at 65.

The same cannot be said here. Robert, Don, and Reba initiated their suit against Bank and Bank lodged counterclaims against them. Robert, Don, and Reba knew of Bank's counterclaims because they filed answers responding to Bank's claims. Robert, Don, and Reba promptly moved to set aside the summary judgment against them, but the fault for summary judgment was only their own. Robert, Don, and Reba were traveling for several weeks for work and did not check their mail to monitor the litigation. As pro se litigants, Robert, Don, and Reba were responsible for meeting the 21-day response deadline set out in K.S.A. 2018 Supp. 60-256(c)(1)(B), and they fail to show how their neglect was excusable. They were actively involved in the litigation and should have anticipated Bank would file motions for summary judgment, but they neglected their mail. Based on the factors in Montez , Robert, Don, and Reba are not entitled to relief for excusable neglect. 215 Kan. at 65.

The district court's summary judgment formatting errors are harmless.

Robert, Don, and Reba claim the district court erred in denying their motion to alter or amend the judgment because the first summary judgment order does not comply with Supreme Court Rule 141 (2019 Kan. S. Ct. R. 211) and 165 (2019 Kan. S. Ct. R. 221). Under K.S.A. 2018 Supp. 60-252(a), the district court must find the facts specially and state its conclusions of law separately when it enters an order of summary judgment. Rule 141(g) and 165(a) adopt the same requirements.

Here, the district court explained it adopted the uncontroverted facts in each of Bank's motions for summary judgment. It also provided no subsection detailing its conclusions of law, other than granting judgment against Robert, Don, and Reba in favor of all of Bank's counterclaims. Even so, the district court's error was harmless. Robert, Don, and Reba never provided evidence to dispute Bank's factual claims. As a result, both of the district court's summary judgment orders adopted all of Bank's alleged facts. Given this adoption, the district court held as a matter of law Robert, Don, and Reba defaulted on their loans; Bank could recover for what Robert, Don, and Reba owed Bank; Bank could foreclose on the mortgages; and Bank could sell the collateral listed in each of the security agreements and any after-acquired property. Although the court's order could have more detail, this error is harmless.

The second summary judgment order against Robert was properly granted.

Robert claims the second summary judgment motion should have been denied. The rules governing summary judgment motions have been previously stated and we see no reason to repeat them.

Robert's reply to the second motion for summary judgment provided no contested facts to support his claims for negligence or a violation of the notice requirements for a consumer's right to cure.

Robert's negligence claim lacks support.

According to Robert, Bank is liable to him for negligence because it did not apply his $1,300 payment and another payment to the 2010 truck loan. Robert's alleged facts do not support denial of summary judgment because his evidence disputes no material fact. Bank's error in applying his loan payments did not cause Robert to default.

Robert is correct that Bank should have applied his March 2013 payments to the 2010 truck loan. See Ram Co. , 236 Kan. at 756 (finding voluntary payments made by a debtor must be applied as the debtor directs unless those payments are proceeds of the sale of collateral). Even so, this is not a material issue to prevent Bank from foreclosing his loans and repossessing the property.

Robert caused Bank to repossess the property because he failed to pay his obligations on time. His default on any one loan was a default on every other loan. Robert's pickup, trailer, equipment, inventory, and accounts were collateral Bank could sell based on Robert's security agreements. Bank could also declare the entire unpaid balance immediately due on all the loans and request judicial foreclosure of the mortgaged property. Even the evidence Robert submitted supported he was in default on his loans. The district court did not err in granting summary judgment against Robert's claim of negligence because there was no material factual dispute at issue.

Robert was not entitled to a consumer notice.

The district court also did not err in granting summary judgment against Robert's consumer notice claim. Robert agreed to business loans. K.S.A. 16a-5-110 governs notice requirements for consumers who fail to make required payments in a consumer credit transaction. A consumer credit transaction is a loan obtained primarily for personal, family, or household purposes. See K.S.A. 16a-1-301(15), (17). Based on Robert's agreements, he was not entitled to a consumer notice under K.S.A. 16a-5-110 since he obtained commercial loans for his business. There was no genuine dispute of material facts, and the district court correctly granted summary judgment on this claim.

The second summary judgment order against Don and Reba was properly granted.

Don and Reba claim the district court should have denied the second summary judgment motion. The rules governing motions for summary judgment have been previously stated and we see no reason to repeat them here.

The admitted facts from the first summary judgment order can be used to support the second summary judgment order.

Don and Reba argue the district court erred in granting the second summary judgment when the district court applied its findings from the first summary judgment. According to Don and Reba, the district court could not apply its findings in the first summary judgment order because the order does not meet collateral estoppel.

Whether collateral estoppel (issue preclusion) applies is a question of law subject to de novo review. In re Tax Appeal of Fleet , 293 Kan. 768, 777, 272 P.3d 583 (2012). Collateral estoppel requires: (1) a prior judgment on the merits arising from the same factual circumstances and determining the rights and liabilities of the parties, (2) the parties must be the same, or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment. 293 Kan. at 778.

Don and Reba's only challenge to collateral estoppel is their claim the court's first summary judgment order is not a final order under K.S.A. 2018 Supp. 60-254(b). They raise a question of statutory interpretation, a question of law over which appellate courts have unlimited review. Neighbor , 301 Kan. at 918. 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 , 303 Kan. at 659. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Ullery , 304 Kan. at 409.

To support their claim, Don and Reba cite Vallejo v. BNSF Railway Company , 46 Kan. App. 2d 498, 504, 263 P.3d 208 (2011). In Vallejo , another panel of this court found a partial summary judgment was not a final judgment based on the language in K.S.A. 60-254(b). But that panel cited an older version of the statute, noting the statute allowed "the court to direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment ." ( Emphasis added.) 46 Kan. App. 2d at 504.

In 2010, the Legislature amended K.S.A. 60-254(b) and it now reads "the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay." K.S.A. 2018 Supp. 60-254(b). The court's first summary judgment notes "[t]here is no just reason for delay in entering judgment against Donald G. Cox and Reba R. Cox. Said judgments should be and are final orders, made pursuant to K.S.A. 60-254(b)." Given the statutory change to K.S.A. 2018 Supp. 60-254(b), the district court's first summary judgment order meets the definition of a final order because it found no just reason for delay. As a final order, the district court's summary judgment meets the first requirement of collateral estoppel.

Don and Reba do not claim the first summary judgment fails to meet the other two factors of collateral estoppel. They have waived argument over those claims. See In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018) (issues not adequately briefed are deemed waived or abandoned). Moreover, the parties on these claims are clearly the same. Similarly, the issue litigated-whether Don and Reba defaulted on the terms of their agreements with Bank-was necessary to support the district court's judgment. Collateral estoppel applies, and the district court did not err in using its finding in its first summary judgment when it ruled on the second summary judgment.

The district court correctly granted summary judgment to Bank for the trespass to chattels claim.

The district court found Bank paid for damages to Don and Reba for the gate based on an affidavit from Bank's vice president. Don and Reba do not challenge this on appeal, so they have waived argument over this issue. See In re Marriage of Williams , 307 Kan. at 977. Don and Reba also admitted to receiving a replacement gate.

The appellant record does not include a copy of the affidavit the district court relied on, and the affidavit was likely attached to Bank's second motion and memorandum for summary judgment. Don and Reba must provide a record supporting their claims. They did not, so we may presume the district court did not err. See Friedman v. Kansas State Bd. of Healing Arts , 296 Kan. 636, 644-45, 294 P.3d 287 (2013).

Bank had a security interest in Reba's 2011 PJ Trailer.

The district court found the trailer was collateral under the 2009 security agreement signed by Don and the 2010 security agreement signed by both Don and Reba. Don and Reba, however, argued the 2011 PJ trailer was not collateral under any agreement they had with Bank. Both security agreements grant Bank a security interest in Don and Reba's farm equipment, but neither agreement specifically mentions the 2011 PJ trailer. The agreements provide after-acquired property is attached and secured by the security agreements. We have found only two security agreements for Don and Reba in this appellate record. There are also no other documents in the record to suggest the 2011 PJ trailer was not covered. Even so, there appears to be a sizable amount of the record missing-Bank's motion and memorandum for the second summary judgment. It is possible a missing document establishes the issue definitively. However, Don and Reba must provide a record supporting their claims. They did not, so we may presume the district court did not err and the 2011 PJ trailer was subject to the after-acquired clause in the 2010 security agreement. See Friedman , 296 Kan. at 644-45.

No support for Don and Reba's breach of contract claims

The mortgage requires Don and Reba maintain insurance and pay their property taxes timely. The district court found Don and Reba's mortgage required they provide insurance on their property and timely pay the taxes. Don and Reba failed to raise this issue on appeal, so they have waived and abandoned the argument. See In re Marriage of Williams , 307 Kan. at 977. The district court did not err in this finding.

We decline review of Don and Reba's additional arguments.

Don and Reba also raise issues of equitable estoppel, breach of a fiduciary duty, and contract revision. They did not raise these arguments below and fail to argue why this court should review these issues for the first time on appeal. We decline to review them. Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 403, 266 P.3d 516 (2011) ; Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34).

Affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Patrick T. STEWART, n/k/a: Lucifer Mindbubble, Appellant.
    No. 119,858
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019.
    Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Lucifer Mindbubble, formerly known as Patrick T. Stewart, appeals the district court's denial of his motion for new trial based on newly discovered evidence. He argues that the district court erred in finding that the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Finding no abuse of discretion, we affirm the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

While the motion for new trial being appealed to this court was pending in the district court, defendant Patrick T. Stewart legally changed his name to Lucifer Mindbubble. Because Stewart was his legal name during most of the proceedings now before this court, we will refer to him as Stewart here for ease of understanding. In Stewart's direct appeal, this court set out the facts underlying this case:

"While watching the February 6, 2011, Super Bowl at a bar and grill in Derby, T.C. and her 18-year-old-daughter, A.C., met Patrick Stewart and Jennifer Witherell. T.C. believed Stewart and Witherell were from Alaska and that they were staying in town with Witherell's aunt. T.C. was drinking beer and feeling intoxicated. Around midnight as T.C. and A.C. were going home, Stewart and Witherell asked T.C. if they could come over. T.C. agreed and then drove home with A.C., while Stewart and Witherell followed in their own vehicle.
"When everyone got to T.C. and A.C.'s residence, T.C. and Stewart drank whiskey and beer while Witherell drank beer. Though T.C. acknowledged she had cocaine and Lortab in her residence, she does not remember, as Witherell claims, using cocaine with Witherell or giving her a Lortab. Stewart also claimed to have used the cocaine.
"The group eventually needed cigarettes. Stewart asked T.C. if he could take her car to get some. T.C. gave him permission. Before leaving to get the cigarettes, Stewart suggested to A.C. that she go to bed. A.C. went to bed around 3 a.m. while Stewart drove to a [QuikTrip] store. A.C. had not consumed any alcohol or drugs at any point and did not see anybody drink any alcohol at her residence before Stewart went to [QuikTrip].
"While Stewart was gone to [QuikTrip], T.C. and Witherell had begun kissing in the kitchen. When Stewart got back he saw the two women kissing and joined in. At one point, Stewart told Witherell to go and get a rope he had placed just outside the front door of the residence. Witherell complied, despite not recalling seeing a rope when they entered the residence earlier. Indeed, on the front porch, Witherell found the same rope that she and Stewart used to tie her hands during sex.
"When Witherell returned with the rope, Stewart had T.C. pinned to the floor, straddling her stomach as she kicked and screamed. Witherell followed Stewart's order to remove T.C.'s jeans. Stewart repeatedly kicked, punched, and choked T.C., telling her to shut up or he would kill her. Stewart rolled T.C. over and tied her feet and hands together behind her back. Stewart then instructed Witherell to hold a cloth over T.C.'s mouth to keep her quiet. When T.C. begged Witherell not to let anything happen to A.C., Witherell told T.C. to be quiet and let Stewart 'do what he was going to do' or Stewart would go and get A.C. as well. T.C. felt Stewart do something between her legs while he continued choking her with the rope and punching her in the chest, stomach, and face.
"After this, Stewart positioned himself over T.C.'s face in an effort to force her to perform oral sex on him while Witherell held T.C.'s mouth open. The rope was so tight around T.C.'s neck she could scarcely breathe and felt herself floating in and out of consciousness. Stewart then sat on the couch, ordered Witherell to take her clothes off, and pulled T.C. into a position where he could force T.C. to perform oral sex on him. Stewart also handed Witherell her phone and told her to take pictures of him and T.C. The police subsequently recovered five images from Witherell's' phone confirming T.C. performed oral sex on Stewart. T.C. described Stewart's penis as having two piercings and tattoos of flames. Stewart then got up from the couch and went to A.C.'s room.
"A.C. awakened to a naked Stewart holding a knife to her throat. Stewart led A.C. out to the living room and told her to be quiet while continuing to hold the knife to her throat. Once in the living room, A.C. saw T.C. on the floor naked, with her hands tied behind her back, and a rope around her throat. Witherell was also naked and had her hands over T.C.'s mouth. Stewart told A.C. to lie on the floor next to T.C. He then used the same rope binding T.C. to tie around A.C.'s throat and tied both of her hands together in front of her. Stewart then cut all of the clothes from A.C.'s body and asked if she 'liked giving head.' A.C. told him 'no.'
"While still holding the knife, Stewart forcefully put his penis in A.C.'s mouth to have her perform oral sex on him. At one point, Stewart's penis came out of A.C.'s mouth. Stewart put his penis back in her mouth and warned A.C. that if it came out again he would kill her. A.C. also described Stewart's penis as having flame tattoos and at least one piercing. About 5 minutes later, Stewart took his penis back out and asked Witherell whether she wanted the 'young one or the old one.' Witherell chose A.C. and positioned herself over A.C.'s face, forcing A.C. to perform oral sex on her. Stewart then went over to T.C., and A.C. could hear Stewart 'hitting and punching' her.
"This was not a quiet encounter. Around 4 a.m., the next-door neighbor, Sara Cash's daughter, woke her complaining about noise coming from T.C.'s residence. Cash heard banging, loud crashes, wailing, females screaming, and a male voice. Confused and frightened, Cash continued to listen for 50-55 minutes before calling the police. Cash was initially reluctant to intervene because she was divorcing T.C.'s brother but ultimately called the police out of fear for the safety of T.C., A.C., and her own children.
"A short time later, police officers Taylor Moore and Derek Dunn arrived at T.C.'s residence. After hearing what sounded like crying, whimpering, and groaning coming from inside the residence, the officers pounded on the door and announced their presence. At this point, A.C. was being forced to perform oral sex on Witherell. The officers then heard a lot of fast movement coming from the residence and a female voice yell, '[G]et to the door.' Inside, Stewart had run for the back door of the residence while telling Witherell to grab their clothes as she ran after him. Meanwhile, A.C., with her hands still tied, wrapped herself in a blanket and covered T.C. with a sheet. Realizing she was tied to T.C. with the rope, A.C. dragged T.C. closer to the front door and opened it for the officers.
"Upon entering the residence, the officers observed A.C. naked except for the blanket and T.C. lying naked face down on the floor with her wrists and ankles bound together behind her back. Officer Moore then observed Witherell running out the back door. The officers gave chase and subsequently apprehended Witherell in the backyard. The officers found a kitchen knife on the ground within arm's reach of Witherell. When the officers returned to T.C.'s residence, A.C. asked Officer Dunn if they had apprehended the man. The police realized that the man, Stewart, had escaped from T.C.'s residence undetected.
"In the meantime, Stewart had run out the back door in an effort to put distance behind him and T.C.'s residence. He ultimately sought refuge in an unlocked van three or four blocks away. The owner of the van, Trent Peninger, came out of his house moments later and started the van before leaving for work. Once Peninger went back inside his residence to finish getting ready, Stewart stole the van and drove to Witherell's aunt and uncle's house, gathered some clothes, and fled the city. Federal Marshals apprehended Stewart approximately a week later in Springfield, Missouri.
"The State charged Stewart with two counts of aggravated kidnapping in violation of K.S.A. 21-3421, three counts of aggravated criminal sodomy in violation of K.S.A. 2010 Supp. 21-3506(a)(3)(A), and one count of aggravated assault in violation of K.S.A. 21-3410(a). A month later, the State charged Stewart in a separate case for the theft of Peninger's van. Stewart waived his right to a preliminary hearing. The court subsequently consolidated Stewart's two cases.
"By the time of Stewart's trial, Witherell had pled guilty and as part of her plea agreement agreed to testify against Stewart....
"The State presented evidence consistent with our summary. Stewart testified that all of the events that morning were consensual; he did not sodomize T.C. and A.C. against their will; T.C. had agreed to be tied up; A.C. had never been tied up or threatened with a knife; and that he fled the scene because of his outstanding arrest warrants and there was cocaine in the residence." State v. Stewart , No. 109,665, 2014 WL 2747586, at *1-3 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1020 (2015).

On October 22, 2012, a jury convicted Stewart on all counts. Stewart filed a motion for new trial, which the district court addressed at the sentencing hearing on January 10, 2013. In arguing the motion for new trial, Stewart's counsel proffered into evidence a poem dated October 29, 2012, that Witherell had sent to Stewart while both of them were in jail. Stewart's defense counsel argued that the poem was evidence of "some type of vendetta" Witherell held against Stewart that could be used to impeach her credibility, so the poem served as the basis for a new trial. The district court denied Stewart's motion for new trial and sentenced him to 570 months' imprisonment.

In his direct appeal, Stewart argued, among other things, that the district court erred in denying his motion for new trial based on the poem. In rejecting Stewart's claim, this court concluded that "no reasonable probability exists that had the defense admitted the poem into evidence the jury would have reached a different verdict." 2014 WL 2747586, at *16. This court rejected Stewart's other claims of error and affirmed his convictions. 2014 WL 2747586, at *16. On June 30, 2015, the Kansas Supreme Court denied Stewart's petition for review. 302 Kan. 1020 (2015).

On June 9, 2016, Stewart filed a pro se motion for new trial based on newly discovered evidence. He attached two notarized but undated statements to his motion, one from William Struble and another statement from Monty Reichenberger. Struble wrote that he met Witherell while they were both in the Sedgwick County Jail in 2013, and "she would often vent to [him] about her case and" about Stewart. According to Struble, Witherell said that T.C. and A.C. had started some of the sexual contact in February 2011. Struble also stated that Witherell eventually asked him to beat up Stewart "because he wouldn't take the hit for her." Struble concluded: "The comments made by Ms. Witherell during the trial of Patrick Stewart do not match the things she was telling me about the night in question. Jennifer Witherell lied on the stand. Plain and simple."

Reichenberger similarly wrote that he had met Witherell while in the Sedgwick County Jail, and she said that one of the alleged victims in the criminal case had started the sexual contact and that "everyone was consen[s]ual." According to Reichenberger, Witherell "said that after the police were called the 2 women changed what really happened" and "she couldn't understand why they lied." He also asserted that Witherell admitted "she had changed her version of what occurred because they-the State-would give her less time for doing so," and he stated that she "asked [him] a couple of times if [he] would beat [Stewart] up severely because he would not take the fall for her."

Stewart argued that Reichenberger's and Struble's statements were newly discovered evidence that impeached Witherell's testimony and showed that she had "a motive to provide inaccurate testimony-to harm an ex-boyfriend [against] whom she clearly bore a grudge." Stewart argued that "had this evidence of Ms. Witherell's bias been admitted at trial, it is very much [sic ] likely that the jury would have reached a different verdict, especially as how this new evidence concerning Ms. Witherell points directly to Mr. Stewart's belief that all participants were consenting."

Apparently, nothing happened with Stewart's pro se motion, so in early December 2016, Stewart called the district court to inquire into the status of his motion. On December 7, 2016, the district court issued an order appointing counsel to represent Stewart at a hearing the court set for January 25, 2017.

The hearing on Stewart's motion for new trial was repeatedly continued. On August 15, 2017, Stewart filed a pro se "Motion to Amend Motion for New Trial Filed 9 June 2016," to which he attached a letter he had received from Witherell in July 2017. The letter stated that Witherell forgave him for "destroying [her] self-esteem, for taking [her] for granted, for breaking [her] heart, for dragging [her] through hell, [and] for destroying [her] life." Stewart asserted that the letter "shows that for six and one half years, Ms. Witherell has held [him] responsible for [her] own situation" and that it supported his "claim that Ms. Witherell took the stand at [Stewart's] trial with a vendetta in her heart which caused her to lie on the stand in order to insure a verdict of guilty." He concluded that Witherell committed perjury at his trial because of her animosity and, if not for that perjury, his "trial very easily could have resulted in a different outcome."

On September 28, 2017, Stewart-through counsel-filed a motion for new trial based on newly discovered evidence. As in the pro se motions, he contended that Struble's and Reichenberger's statements, along with Witherell's 2017 letter and the October 2012 poem, were newly discovered evidence that "Witherell is still harboring anger against [Stewart] and ... places blame on [him]." Stewart attached to the motion Struble's statement, Reichenberger's statement, Witherell's 2017 letter, and Witherell's 2012 poem.

The district court finally held an evidentiary hearing on March 2, 2018. Stewart testified, identifying the 2017 letter and the 2012 poem from Witherell, which the district court admitted into evidence. Stewart also testified that he first met Reichenberger when they lived in the same pod in the Sedgwick County Jail, but they did not discuss Stewart's case at that time. He testified he only learned about the information from Reichenberger after his transfer to Lansing and, to the best of his knowledge, his attorney did not have this information at the time of trial. Stewart asked Reichenberger to prepare a notarized statement about his communications with Witherell because he "felt that it showed that even more strongly that she had reason to change her testimony at the trial in a vindictive manner." The district court admitted Reichenberger's statement into evidence.

Witherell also testified at the hearing, and she denied knowing Reichenberger. Witherell admitted that she had communicated with male inmates while in the Sedgwick County Jail, but she testified that she did not ask any of them "to approach Mr. Stewart in any way." As for the 2017 letter, Witherell stated that she had written and sent it "[b]ecause [she] felt that it was on [her] heart to forgive and to move forward." When defense counsel asked whether her anger toward Stewart at the time of his trial was "to such an extent that [she] would have lied to get him in more trouble," Witherell replied, "No." Similarly, on cross-examination, Witherell testified that she was angry with Stewart during his trial, but she did not lie about him or his participation in the crimes.

Reichenberger testified that Witherell had started communicating with him in the Sedgwick County Jail. Reichenberger testified that there were "a few letters where she mentioned that she wanted him beat up or put in the infirmary, as she put it, I believe. Because he wouldn't take the fall on the whole case." Reichenberger stated that he showed Witherell's letters to Stewart. He also testified that when he later transferred to Lansing, he saw Stewart walking on the track and asked him "how everything was going." Stewart asked if Reichenberger remembered telling him about the notes from Witherell. Reichenberger said yes, and only then told Stewart about Witherell "saying that it was consensual" and admitting she lied during her testimony at his trial. At Stewart's request, Reichenberger then wrote a statement about his communications with Witherell.

As for Struble, defense counsel informed the district court that the last known information on Struble was that he was living in a homeless shelter and he had not been served personally with a subpoena. Over Stewart's objection, the district court ruled that it would not consider Struble's statement since he was unavailable to testify. The State asked the district court to take judicial notice of the court file in the criminal case, and after closing argument, the district court took the matter under advisement.

On March 7, 2018, the district court filed a memorandum decision on the motion for new trial. The next day, the district court issued an amended order, correcting Stewart's name in the caption. The district court noted that Witherell's 2012 poem was addressed in Stewart's direct appeal, and it adopted this court's holding that the poem did not require a new trial. As for the rest of the evidence, the district court gave Stewart "the benefit of the doubt" and found that the evidence he offered for a new trial could not have been produced at trial, even with reasonable diligence.

The district court turned to whether the newly discovered evidence was of sufficient materiality that there was a reasonable probability that a retrial would produce a different result. Ultimately, the district court found:

"Even if the evidence now offered by Defendant Stewart in the form of the notarized statement and testimony of Mr. Reichenberger was submitted to a jury in a new trial, this Court feels that evidence would not be and is not of such materiality that a reasonable probability exists that it would produce a different result upon retrial.
"Even if this 'new' evidence could be considered to impeach Witherell, evidence of her fractured relationship with Defendant, her disillusionment with Defendant, her bias and her favorable plea agreement had been presented to the jury during Stewart's trial. The jury had also been given the jury instruction which told them to 'consider with caution the testimony of an accomplice.' It is this Court's opinion that this type of further impeachment of Witherell would not likely produce a different result.
"The Court found and finds that testimony of both [A.C. and T.C.] to have been credible and very persuasive. Considering the nature of their testimony, this Court finds it unlikely the further impeachment of Witherell would likely have produced a different result.
"The Court finds the testimony of Ms. Witherell to be consistent and credible.
"The Court finds the testimony of Mr. Reichenberger to have been uncertain, both in the time frame of the alleged statements and the identity of one of the alleged statements. The Court finds his testimony in a new trial would not be of such materiality to find a reasonable probability exists that it would produce a different result upon retrial.
"Furthermore, the Court finds significant corroboration of the victims' accounts-both by physical exhibits and by testimony of other witnesses-all of which have been set out in detail [herein] and involve the testimony and exhibits introduced through the testimony of the two Derby police officers, the Derby police detective, the neighbor and the two SANE/SART nurse examiners.
"After the mutual kissing, consent ended by [T.C.] There was never consent by [A.C.]
"The characterization with which the Court of Appeals began its opinion when it affirmed Defendant Stewart's convictions and sentence was accurate then and remains accurate now:
'A meeting at a bar leads to a horrific attack on a mother and daughter.'
"Defendant's Motion for a New Trial based on Newly Discovered Evidence is DENIED."

Based on its findings, the district court denied Stewart's motion for new trial. Stewart timely filed a notice of appeal.

DID THE DISTRICT COURT ERR IN DENYING STEWART'S MOTION FOR NEW TRIAL ?

On appeal, Stewart claims the district court erred in denying his motion for new trial based on newly discovered evidence. He asserts that he offered new evidence to the district court that could not have been discovered at the time of his trial and that the new evidence was of such materiality that it would likely produce a different result upon retrial. Alternatively, Stewart argues that this court should remand his case to the district court for more specific findings.

The State asserts that the district court did not abuse its discretion in denying Stewart's motion for new trial. The State first contends that Stewart's evidence was not new because it could have been discovered at the time of his trial. Second, the State argues that even if Stewart's evidence is considered to be newly discovered, the district court correctly found that the evidence was not of such materiality that it would likely produce a different result upon retrial. Finally, the State rejects Stewart's assertion that the district court failed to make sufficient findings to support its decision.

Sufficiency of the district court's findings

We will begin by addressing Stewart's argument about the sufficiency of the district court's findings. Stewart argues that we need to remand for more specific findings because the district court's decision failed to address Witherell's 2017 letter and Struble's written statement, in violation of Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 228).

But as the State points out, Rule 183(j) is plainly inapplicable to rulings other than those made "on collateral challenges under K.S.A. 60-1507." See State v. Dull , 298 Kan. 832, 842, 317 P.3d 104 (2014). We will interpret Stewart's argument to mean that the district court failed to make sufficient findings as required by Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221). Rule 165 states: "In a contested matter submitted to the court without a jury ... the court must state its findings of fact and conclusions of law in compliance with K.S.A. 60-252."

But "litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the trial court the opportunity to correct such inadequacies, and, when there is no objection, omissions in findings are not considered on appeal." State v. Jones , 306 Kan. 948, 958-59, 398 P.3d 856 (2017). Stewart did not object in the district court to any findings of fact or conclusions of law, so he has not preserved the issue for appeal.

Moreover, the district court's finding of facts and conclusions of law are not so inadequate as to preclude appellate review, the test for whether a Rule 165 violation merits remand. See State v. Wright , 305 Kan. 1176, 1180, 390 P.3d 899 (2017). The district court's order stated that it "reviewed the Defendant's Motion and its attachments"-which included Witherell's 2017 letter-and the order noted Witherell's testimony at the evidentiary hearing. The lack of detailed discussion of the 2017 letter in the district court's written decision does not impede this court's ability to review the decision. Finally, although Stewart argues to the contrary, we agree that the district court did not err by excluding Struble's written statement as inadmissible hearsay. It was presented for the truth of the matter asserted, Struble was not present at the hearing, and Stewart argued no exceptions to the general prohibition on hearsay evidence. See K.S.A. 2018 Supp. 60-460 ; State v. Green , 254 Kan. 669, 681-82, 867 P.2d 366 (1994) (holding that a district court did not err by excluding inadmissible hearsay evidence at a hearing on a motion for new trial based on newly discovered evidence).

Standard of review

The State asserts that the decision whether to grant or deny a motion for new trial based on newly discovered evidence generally rests within the district court's discretion. This conforms to the Kansas Supreme Court's instruction that:

"An order denying a request for a new trial based on newly discovered evidence is reviewed for abuse of discretion. 'Judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.' The party asserting the error 'bears the burden of demonstrating an abuse of discretion.' [Citation omitted.]" State v. Ashley , 306 Kan. 642, 650, 396 P.3d 92 (2017).

Stewart offers two reasons that this court should abandon this standard of review in favor of an unlimited standard of review. First, he asserts that his newly discovered evidence "raise[s] a significant possibility of [his] actual innocence." Citing Schlup v. Delo , 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), and Herrera v. Collins , 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), Stewart argues that these cases "suggest[ ] that the conviction and sentencing of a person who is actually innocent would implicate substantive due process rights which would be violated if the conviction and sentencing stands." Stewart asserts his due process claim is subject to unlimited review.

Stewart mischaracterizes the United States Supreme Court's holdings in Herrera and Schlup . In both cases, the petitioners sought federal habeas relief and thus implicated the related federal habeas caselaw, which is not applicable to Stewart's case. See Schlup , 513 U.S. at 306-13 ; Herrera , 506 U.S. at 393. Contrary to Stewart's assertion, neither Herrera nor Schlup allude to the proposition that the conviction and sentencing of an innocent person is an independent constitutional violation that demands unlimited review in state court postconviction motions for new trial.

Second, Stewart points out that K.S.A. 2018 Supp. 22-3501 authorizes a district court to "grant a new trial to the defendant if required in the interest of justice." He contends that the district court's finding that "the interest of justice" did not require a new trial constituted statutory interpretation subject to de novo review.

We reject this argument as well. Although a motion for new trial is governed by K.S.A. 2018 Supp. 22-3501, the district court did not have to construe the language of this statute in order to address Stewart's motion. Our Supreme Court has consistently applied the abuse of discretion standard of review to motions brought under K.S.A. 22-3501. See Ashley , 306 Kan. at 650 ; State v. Parker , 213 Kan. 229, 233, 516 P.2d 153 (1973). We will do the same. See State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015) (Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position).

The merits of the district court order

Stewart claims the district court erred in finding that the newly discovered evidence did not warrant a new trial. The State disagrees.

"In order to establish the right to a new trial based upon newly discovered evidence, a criminal defendant must establish: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial. [Citation omitted.]" Ashley , 306 Kan. at 650.

To begin with, the State argues that the district court erred in finding that Stewart's evidence could not have been presented at trial. But we will not review that finding because it was adverse to the State and the State filed no cross-appeal. See State v. Novotny , 297 Kan. 1174, 1181, 307 P.3d 1278 (2013) (declining to address finding adverse to the State when the State failed to cross-appeal the ruling).

Thus, the sole issue on the merits is whether the district court abused its discretion by finding that the newly discovered evidence would not likely produce a different result upon retrial. We agree with the district court that Witherell's 2012 poem was addressed in Stewart's direct appeal and was rejected as grounds for a new trial. This leaves Witherell's 2017 letter and Reichenberger's statement and testimony supporting the new trial motion.

As Stewart notes, the district court did not directly address Witherell's 2017 letter in denying his motion for new trial. But the letter is included in the notice of appeal. In the letter, Witherell states that she forgave Stewart and wanted to move forward. There is no information in Witherell's 2017 letter that, if offered into evidence and presented to a jury, would likely produce a different result in Stewart's case upon retrial.

Stewart's main evidence supporting his motion for new trial was Reichenberger's statement and testimony that Witherell admitted to him that she lied during her trial testimony about whether T.C. and A.C. consented to sexual activity with Stewart. But Witherell testified at the hearing on Stewart's motion for new trial that she did not lie during her trial testimony, and the district court found her testimony "to be consistent and credible." An appellate court will not reassess the district judge's determination of the credibility of a witness. Ashley , 306 Kan. at 650.

Moreover, the Kansas Supreme Court has been clear that evidence that merely tends to impeach the testimony of a witness ordinarily is insufficient to grant a motion for a new trial:

"[N]ewly discovered evidence that merely tends to impeach or discredit the testimony of a witness is ordinarily not grounds for granting a new trial.... Even when the evidence tends to impeach the testimony of a witness, the presence or absence of corroborating evidence is an additional factor to consider in determining whether newly discovered evidence is so material that it is likely to produce a different result upon retrial.
"In light of the general rule that newly discovered evidence may not be used solely for impeachment purposes, there would have to be some other compelling reason to grant the motion for new trial. [Citations omitted.]" Ashley , 306 Kan. at 650.

Witherell testified at trial as an accomplice to Stewart's crimes, and her testimony merely corroborated the testimony of the victims, T.C. and A.C. Stewart had ample opportunity to challenge the credibility of Witherell's testimony at trial. And the district court instructed the jury at Stewart's trial that it "should consider with caution the testimony of an accomplice."

Finally, it is important that the judge who presided over Stewart's motion for new trial was the judge who presided over his trial, and the judge was familiar with the evidence and the strength of the State's case against Stewart. As the district court noted, T.C. and A.C. testified in detail at trial about Stewart's actions on February 6, 2011, and their testimony was corroborated by physical exhibits and the testimony of police officers, a neighbor, and two SANE/SART nurse examiners. In denying Stewart's motion for new trial, the district court found the trial "testimony of both [A.C. and T.C.] to have been credible and very persuasive." This finding supports the district court's conclusion that Stewart's new evidence was insufficient to grant a new trial.

After considering the evidence presented by Stewart in support of his motion for new trial, the district court found that the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Stewart bears the burden of showing that the district court abused its discretion in denying his motion. See Ashley , 306 Kan. at 650. Applying our standard of review, Stewart fails to persuade us that the district court abused its discretion in denying his motion for new trial.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Amanda Danielle RANGEL, Appellant.
    No. 120,546
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Amanda Danielle Rangel appeals her sentence following her convictions of possession of methamphetamine and possession of heroin. We granted Rangel's motion for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State has filed no response.

On April 10, 2018, Rangel pled guilty to one count of possession of methamphetamine and one count of possession of heroin. As part of the plea agreement, the State agreed to recommend a dispositional departure to probation as long as Rangel committed no new crimes before sentencing. But before sentencing, Rangel was arrested for possession of narcotics in California. At sentencing, Rangel moved for a dispositional departure. While the district court denied that request, it granted a downward durational departure to 72 months' imprisonment. Rangel timely appealed her sentence.

On appeal, Rangel claims the district court erred in not granting her a dispositional departure to probation. She points out that her criminal history is void of any person felonies and her crimes all stem from her addiction to drugs and alcohol. Rangel asserts that she is better suited for probation so she can obtain treatment outside of prison.

We have jurisdiction over Rangel's sentencing appeal because she received a durational departure. See State v. Looney , 299 Kan. 903, 909, 327 P.3d 425 (2014). When the extent of a departure sentence is challenged, the appellate standard of review is abuse of discretion. State v. Spencer , 291 Kan. 796, 807-08, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the district court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the district court abused its discretion bears the burden of showing the abuse of discretion. State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012).

Here, the State agreed to recommend a dispositional departure to probation as long as Rangel committed no new crimes before sentencing, but she could not even meet that challenge. The district court showed leniency to Rangel by granting her a durational departure, but it denied her request for probation when the presumptive sentence called for prison. As the district court told Rangel at the sentencing hearing: "It is simple. Your actions speak far louder than your words." The district court's decision to deny Rangel's request for a dispositional departure was not arbitrary, fanciful, or unreasonable, and it was not based on an error of fact or law. Rangel has failed to show that the district court abused its discretion by denying her request for a dispositional departure.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Justin Lee CHAMBERLIN, Appellant.
    No. 120,462
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    MEMORANDUM OPINION
   Per Curiam:

Justin Lee Chamberlin appeals the district court's decision to deny his request for a dispositional departure to probation for his offender-registration violation conviction. He argues that he presented substantial and compelling reasons to support a dispositional-departure sentence.

But the district court is not required to impose a departure sentence even if substantial and compelling reasons would justify a departure. The district court found that public-safety considerations justified a prison sentence, and a reasonable person could agree. We therefore conclude that the district court did not abuse its discretion in denying Chamberlin's motion for a dispositional departure from a prison sentence to probation.

With that overview, we will now review what happened in the district court in more detail. Chamberlin pleaded guilty to one count of offender-registration violation. Based on Chamberlin's criminal-history score of G and a special rule that applies to violations of the Kansas Offender Registration Act, Chamberlin's presumptive sentence was 22, 24, or 26 months in prison. See K.S.A. 2018 Supp. 21-6804(a), (m).

Before sentencing, Chamberlin moved the court to grant both a dispositional departure to probation and a downward-durational departure to a shorter prison sentence. The district court granted Chamberlin's motion for a downward-durational sentence-shortening the prison sentence to 12 months-but denied Chamberlin's request for a dispositional departure to probation.

On appeal, Chamberlin argues that the district court should have sentenced him to probation instead of prison. We review a district court's denial of a departure motion for an abuse of discretion. Abuse of discretion occurs when the district court makes an error of law or fact, or when judicial action is so "arbitrary, fanciful, or unreasonable" that no reasonable person could agree with the district court's decision. State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017).

A district court must impose the presumptive sentence for a crime unless it finds that substantial and compelling reasons warrant a departure. K.S.A. 2018 Supp. 21-6815(a). The term "substantial" is defined as "something that is real, not imagined, something with substance and not ephemeral." State v. Jolly , 301 Kan. 313, Syl. ¶ 9, 342 P.3d 935 (2015). "Compelling" reasons are those that force the court " 'to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.' [Citation omitted.]" State v. Hines , 296 Kan. 608, 620, 294 P.3d 270 (2013). A district court considers both mitigating and aggravating factors when determining whether substantial and compelling reasons exist for granting a departure from a guidelines sentence. See State v. Spencer , 291 Kan. 796, 809, 248 P.3d 256 (2011).

In his motion and at his sentencing hearing, Chamberlin said there were substantial and compelling reasons why probation was more appropriate than prison, including that he didn't have a serious criminal history, had taken responsibility for his actions, and had consistently registered under the Offender Registration Act (except for this one failure to register). Chamberlin argues that in light of these factors, the district court abused its discretion when it denied his request for a dispositional departure.

But even if those grounds could have been substantial and compelling reasons to justify a dispositional departure to probation, the district court wasn't required to impose a departure sentence. See K.S.A. 2018 Supp. 21-6818(a) ("When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines.") [Emphasis added.]; State v. White , No. 113,915, 2016 WL 4063967, at *2 (Kan. App. 2016) (unpublished opinion). We find no abuse of discretion in the court's decision not to grant probation to Chamberlain.

In denying the request for a departure to probation, the district court said the reason for the offender-registration law was to give citizens a way to know where offenders were, "so that people can make adjustment[s] in their lives, they can make choices about where they're going to live, [and] they can make choices about what kind of security or what things they need to avoid or things they need to do with their kids." In addition to those concerns, the court also had information about Chamberlain's past offenses. While his criminal-history score was relatively low (G, the third-lowest score on a scale from A to I), that doesn't mean there were no significant offenses.

The presentence-investigation report showed 17 past offenses; Chamberlain challenged two of those at sentencing and the State chose not to present evidence about them. So that left 15 convictions for the court to consider. In addition to the 2010 aggravated battery that led to the registration requirement, Chamberlain had four DUI convictions, four driving-while-suspended convictions, and convictions for criminal damage to property, telephone harassment, criminal trespass, and interfering with a law-enforcement officer. And he committed the failure-to-register offense while still on post-release supervision for a felony DUI conviction.

Given the nature of Chamberlin's underlying crime of aggravated battery, the public-safety purposes of the offender-registration law, and Chamberlain's criminal record, a reasonable person could agree with the district court's decision not to grant a dispositional departure to probation. Chamberlain has not shown that the district court based its decision on any factual or legal error, so we conclude that there was no abuse of discretion.

On Chamberlin's motion, we accepted this appeal for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). We have reviewed the record available to the district court, and we find no error in the court's decision to deny Chamberlin's request for a dispositional departure.

We affirm the district court's judgment.


text:
    Rico J. BROWN Sr., Appellant, v. STATE of Kansas, Appellee.
    No. 119,657
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019.
    Kristen B. Patty, of Wichita, for appellant.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Rico J. Brown appeals the summary denial of his K.S.A. 60-1507 motion, arguing he should have received an evidentiary hearing to consider his ineffective assistance of counsel claim. We agree in part.

Factual Background

In 2014, Brown was convicted of aggravated human trafficking, promoting the sale of sexual relations, violation of a protective order, and battery. He was sentenced to 258 months in prison. Brown filed a direct appeal but we affirmed his convictions. State v. Brown , No. 113,212, 2016 WL 6910080 (Kan. App. 2016) (unpublished opinion).

In January 2018, Brown filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel and prosecutorial misconduct. The district court summarily denied that motion in February 2018. Brown filed a notice of appeal. Then in May 2018, Brown filed a "motion to reconsider to include all attachment[s] that were missing." The district court denied that motion, finding it lacked jurisdiction to consider it because Brown's original K.S.A. 60-1507 appeal was pending. Brown appealed the denial of his motion to reconsider.

Brown argues that the district court erred by summarily denying his K.S.A. 60-1507 motion because he established a right to an evidentiary hearing about two of his ineffective assistance of counsel claims. Although Brown's original motion raised four such claims, Brown does not brief on appeal his claim of ineffective assistance of counsel based on a failure to suppress State's Exhibit 20 or his claim of prosecutorial error based on the State's use of State's Exhibit 20. We find Brown has waived or abandoned those issues. See State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018). We reach the merits of Brown's two remaining claims, despite the State's assertion that Brown argued them only incidentally and thus waived them too.

Standard of Review

When the district court summarily denies a K.S.A. 60-1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant has no right to relief. Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014). Likewise, the extent of a movant's statutory right to be provided with effective assistance of counsel in a K.S.A. 60-1507 proceeding is a legal question we review de novo. Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 (2009).

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a movant bears the burden to establish entitlement to an evidentiary hearing. To meet this burden, Brown's contentions must be more than conclusory. He must set forth an evidentiary basis to support his contentions, or the evidentiary basis must be evident from the record. If Brown makes such a showing, the court must hold a hearing unless the motion is a successive motion seeking similar relief. See Sola-Morales , 300 Kan. at 881 (quoting Holt v. State , 290 Kan. 491, 495, 232 P.3d 848 [2010] ); see State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015). "Under K.S.A. 60-1507, a district court must conduct an evidentiary hearing unless the motion, files, and records of the case conclusively show that the movant is not entitled to relief." Bellamy v. State , 285 Kan. 346, Syl. ¶ 6, 172 P.3d 10 (2007).

We note that Brown raised an ineffective assistance of counsel claim in his direct appeal. Generally, claims raised and resolved in a direct appeal may not be later raised in a K.S.A. 60-1507 proceeding. See Drach v. Bruce , 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 390 (2006) (res judicata applies to issues raised in 60-1507 proceeding that were resolved by direct appeal). But we considered Brown's earlier claim in the context of whether Brown had a right to substitute counsel for sentencing purposes. His claim here is much different and the district court encouraged Brown to raise it in a K.S.A. 60-1507 motion. So we believe it best to reach the merits of his arguments. See Brown , 2016 WL 6910080, at *4 (noting district court's refusal to consider Brown's presentence motion about ineffective trial counsel based on potential use of a K.S.A. 60-1507 motion).

Brown contends his counsel was constitutionally ineffective. Traditionally, we apply a two-step test to analyze the merits of a claim of ineffective assistance of counsel. See Sola-Morales , 300 Kan. at 887-91. Under that analysis, to prevail on a claim of ineffective assistance of counsel because of deficient performance by counsel, the movant "must establish (1) the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e. , that there is a reasonable probability the jury would have reached a different result absent the deficient performance." 300 Kan. at 882-83 ; see Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). Brown bears that burden here.

Failure to advise Brown about his right to testify

We first address Brown's claim that his counsel was ineffective for not advising him of his right to testify. His 60-1507 motion stated:

"TRIAL COUNSEL VIOLATED THE PETITIONER[']S RIGHT TO TESTIFY ON HIS OWN BEHALF BY FAILING TO AFFIRMATIVELY ADVISE DEFENDANT THAT IT WAS HIS CHOICE ALONE WHETHER OR NOT TO TESTIFY RENDERING HER REPRESENTATION INEFFECTIVE
"During the trial, Counsel of record failed to call petitioner to testify on his own behalf.
"Despite petitioner['s] wish to elaborate for the court the truth of the case which the petitioner believed would have ex[ ]onerated him in this case."

The district court dismissed this claim on the sole basis that it was conclusory.

We cannot deny that this claim, unsupported as it is by other details, is somewhat conclusory. But if the claim is true, what other facts could be alleged to support it? The burden of producing evidence to support a negative is problematic here. The law is clear that in a criminal case, the defendant has the right to decide specific aspects of the case, including whether to testify. In re Hawver , 300 Kan. 1023, 1048, 339 P.3d 573 (2014). An attorney thus has the correlative duty to advise the client of that right. The State does not allege any such advice or waiver occurred. And our review of the record does not reveal either advice by counsel or a waiver by Brown of his right to testify. We have not, of course, independently reviewed all 16 volumes of the record, but we have reviewed the parts of it in which a waiver of this type would most logically appear. The factual basis supporting Brown's claim of deficient performance is thus evident from the record.

And Brown alleged prejudice, saying he believes that had he testified, the jury would have exonerated him. Brown should have stated what he would have testified to and how it would have been more compelling than the testimony to the contrary which led to his conviction. But despite its lack of detail, we find it sufficient, under the circumstances, to warrant an evidentiary hearing. We find the district court must hold a hearing on this claim because the motion, files, and records of the case do not conclusively show that the movant is not entitled to relief. We remand for an evidentiary hearing limited to the question whether Brown's counsel failed to advise him about his right to testify and whether Brown waived that right.

Failure to investigate adequately

We next address Brown's claim that his attorney failed to investigate the veracity of police reports and other exculpatory letters and documents before trial. His motion stated:

"TRIAL COUNSEL['S] FAILURE TO PROPERLY AND THOROUGHLY INVESTIGATE THE PETITIONER[']S CASE PRIOR TO TRIAL RENDERED HER REPRESENTATION INEFFECTIVE
"Prior to trial counsel of record knew that there [was] discovery evidence that may have ex[ ]onerated the petitioner at trial.
"However attorney of record failed to conduct a basic investigation and/or gave minimal effort to test the veracity of the police reports and other exculp[a]tory letter[ ]s and document[ ]s that would have exposed the truth at trial."

His motion did not support this allegation with any citations to the record or with any other details, such as what police reports or exculpatory letters and documents he was referring to. If those documents existed and supported Brown's claim, he should have attached them to his motion and expressly identified and explained them. The district court properly dismissed this claim as conclusory.

Additionally, as Brown concedes in his brief, what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions lie within the province of a lawyer to decide. See Thompson v. State , 293 Kan. 704, 716, 270 P.3d 1089 (2011). It is Brown's burden to show his counsel's alleged deficiencies did not result from strategy. See State v. Gleason , 277 Kan. 624, 644, 88 P.3d 218 (2004). Brown shows no evidentiary basis for his claim that his counsel did not adequately investigate his case.

Motion to Reconsider

As a final point, Brown argues that the district court erred in finding it lacked jurisdiction to consider his May 2018 motion to reconsider the court's February 2018 decision. We agree. Brown had already appealed the February decision, but it is the docketing of an appeal rather than the filing of a notice of appeal that transfers jurisdiction to the Court of Appeals from the district court. See State v. Smith , 278 Kan. 45, 51, 92 P.3d 1096 (2004). Brown's appeal was not docketed until July 2018. Thus, in June 2018, when the district court denied Brown's motion to reconsider for lack of jurisdiction, jurisdiction rested with the district court.

But the record reveals another reason that the district court could not have considered Brown's motion to reconsider. Brown's motion to reconsider was untimely because it was filed well after the 28-day period for such a motion. See K.S.A. 2018 Supp. 60-259(f) (requiring motion to be filed within 28 days of the entry of judgment). We thus affirm the district court's judgment on Brown's motion to reconsider as correct for the wrong reason. See State v. Williams , 303 Kan. 585, 595, 363 P.3d 1101 (2016) (affirming judgment as right for the wrong reasons). The additional details, documents, and allegations Brown included in his motion to reconsider were not included in his original 60-1507 motion and were never properly before the district court.

Affirmed in part, reversed in part, and remanded with directions.