author: Per Curiam:

text:
    STATE of Kansas, Appellee, v. Shawn Perry DOYLE, Appellant.
    No. 119,174
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
    Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
    Before Buser, P.J., Pierron and Bruns, JJ.
    MEMORANDUM OPINION
   Per Curiam:

A jury convicted Shawn Perry Doyle of aggravated intimidation of a victim and criminal damage to property. The district court sentenced Doyle to 40 months' incarceration. Doyle appeals.

FACTS

In 2016, Doyle was living with Michelle Stevens, with whom he has a son, who was approximately 9 years old. In the middle of August 2016, Doyle and Stevens decided their relationship would not go any further and he left the residence. At the end of August, Stevens changed her phone number and did not provide Doyle with her new number. Stevens and Doyle have different versions of what transpired on the night of September 2, 2016, when Doyle went to Stevens' house to get her new number.

Stevens testified that when Doyle moved out, he took all his things and returned her house and car keys. On September 2, 2016, she and her sister, Heather Slater, and their four children were at Stevens' house. Stevens was in her bedroom with her daughter and Slater was in the living room with her two children and Stevens' son. Stevens heard a "big boom," jumped out of her bed, and met Doyle in the hallway. Doyle had an ax hammer in his hand. Stevens testified that Doyle was angry; yelling and "like a hulk or something, like he was just crazy." She could not remember what all was said, but she remembered the children in the living room were screaming and crying. She told him, "Please don't do this in front of the children." Doyle told her that they had to have contact with each other because they have a child together and if Stevens refused, he was going to "wreck shit," which she understood to mean "wrecking [her] life, wrecking [her] things, hurting [her]." She testified she was afraid for her life. Doyle put the ax hammer in his pocket and she convinced him to go outside. She followed him out and gave him her phone number and he left.

The loud boom Stevens had heard was Doyle kicking down the door. He dented the front door, leaving an imprint of a large footprint and the frame was split down the middle.

After Doyle left, Stevens, Slater, and the children went to Slater's house in Troy. During the drive, Stevens called Doyle and told him to fix the door, so nobody could get into the house while she was gone. Doyle agreed to fix the door. He told her multiple times he did not want her to call the police on him but, even if she did, "then it didn't matter, because he would be back." She understood that statement to mean if she called police on him and he would be back to ruin her life. Stevens asked Doyle to leave her alone and told him she would not call the police if he had no more contact with her.

Stevens did not call the police that night as she was afraid doing so would anger Doyle and he would do "something worse." She was afraid of Doyle because he had been abusive, and she understood his statement that he would be back as threatening. The next morning, she called police because she was afraid to return home. Topeka Police Officer Dominic Yancy met Stevens at a park and went to her house as a civil standby to make sure Doyle was not at the house.

Doyle testified that when he and Stevens ended their relationship, they agreed he would not stay with her regularly and he only packed a few things when he left. After that, he had freely gone in Stevens' house because he still had his key. On the night of September 2, 2016, he stated he used his house key to enter Stevens' house. He went to her bedroom to ask why he could not get a hold of her. He told her they had to communicate with each other because of their child. He then left because she became so upset. He thought it best to remove himself from the situation. Stevens followed Doyle outside and provided him with her new phone number.

When Doyle left Stevens' house, he returned to Caylee Longstaff's house, where he had been that day. Shortly thereafter, Stevens called Doyle and told him she was moving out of state the next day and he needed to get his belongings from her house or she would throw them away. He left Longstaff's house to retrieve his property, but he did not have his house key and assumed he had lost or misplaced it. He called Stevens to tell her he did not have his key and asked her to return to let him in. When she refused, Doyle told her that he would break the door if he had to. She responded that she did not care how he got his things, but she would not return. He then kicked the door in, packed his things, and returned to Longstaff's house. Stevens called him later that night and told him to fix the door. He assumed she would report it to the police. Doyle still attempted to fix the door, adding screws to keep the frame together, which allowed the door to close.

The State charged Doyle with aggravated assault, criminal damage to property, aggravated burglary, and aggravated intimidation of a victim. At trial, Doyle stipulated to a prior conviction of intimidation of a witness or victim, as required for the State to provide the aggravated charges of intimidation of a victim under K.S.A. 2016 Supp. 21-5909(b)(3). The jury convicted him of criminal damage to property and aggravated intimidation of a victim and acquitted him of aggravated assault and aggravated burglary. The district court sentenced Doyle to 40 months' incarceration with 24 months' postrelease supervision.

Doyle appeals.

Aggravated Intimidation of a Victim

Doyle contends the State failed to present sufficient evidence for a finding beyond a reasonable doubt that he intentionally attempted to dissuade Stevens from making a report of her victimization to any law enforcement officer with intent to interfere with the orderly administration of justice. He claims the State did not show his actions or intent were criminal.

" 'When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.' [Citation omitted." State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock , 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

The State charged Doyle with aggravated intimidation of a victim under K.S.A. 2016 Supp. 21-5909(a)(2)(A) and (b)(3), under which:

"(a)Intimidation of a witness or victim is preventing or dissuading, or attempting to prevent or dissuade, with an intent to ... interfere in any manner with the orderly administration of justice:
....
"(2)any witness, victim or person acting on behalf of the victim from:
"(A)Making any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer, the secretary of the department of social and rehabilitation services or any agent or representative of the secretary, or any person required to make a report pursuant to K.S.A. 2016 Supp. 38-2223, and amendments thereto;
....
"(b)Aggravated intimidation of a witness or victim is intimidation of a witness or victim, as defined in subsection (a), when the:
....
"(3)act is committed by a person who has been previously convicted of corruptly influencing a witness or has been convicted of a violation of this section or any federal or other state's statute which, if the act prosecuted was committed in this state, would be a violation of this section[.]"

Doyle first asserts the State failed to show he did anything more than merely convey to Stevens his wish that she not contact law enforcement and because he did not threaten her with any negative consequence, his actions were not criminal. He contends that any fear Stevens had stemmed from his previous alleged conduct, not from his expressing, on the night in question, that he preferred she did not contact law enforcement.

When reviewing sufficiency of the evidence in an aggravated intimidation case, we consider the effect of the defendant's words or actions on a victim under an objective, not subjective, standard. State v. Phelps , 266 Kan. 185, 195, 967 P.2d 304 (1998). To establish aggravated intimidation of a victim, the State must have shown that a reasonable person in the same situation as the victim would have been dissuaded by the defendant's actions. 266 Kan. at 195. The effect the defendant's actions had on the victim are of no consequence to a conviction as the crime is completed when the defendant, with the required intent, commits an act to intimidate or dissuade the victim. State v. Aguirre , 296 Kan. 99, 106, 290 P.3d 612 (2012).

The evidence showed Doyle was angry with Stevens for having changed her phone number and he could no longer contact her regarding their son. He kicked in the door and "went straight to" her bedroom with a "look of hate" on his face. Although Doyle maintained his concern was having contact with and about his son, when he saw his son, he only said "Hi" and walked past as his focus was on obtaining Stevens' phone number. Stevens and Doyle met in the hallway and during the confrontation, Doyle yelled at Stevens and he was "like a hulk or something, like he was just crazy." He threatened to "wreck shit" if Stevens refused to maintain contact with him. Doyle later agreed to fix the door, expressing repeatedly that he did not want Stevens to call law enforcement. Doyle told Stevens that even if she did call the police, he would be back. She testified that Doyle was abusive.

When considering the evidence in a light most favorable to the State, a reasonable person in the same situation as Stevens would have been dissuaded from reporting Doyle's crimes to the police. K.S.A. 2016 Supp. 21-5909(a)(2)(A) and (b)(3) do not require a threat of physical harm or negative consequences as Doyle asserts. The statute merely requires an attempt to prevent or dissuade Stevens from reporting victimization after Doyle had previously been convicted of similar conduct.

Doyle also challenges the sufficiency of the State's evidence in support of an "intent to interfere in any manner with the orderly administration of justice." He asserts there is a difference between dissuasion by a defendant and a victim's discretion in not reporting or, as occurred here, waiting to report until a later time. Doyle contends he only indicated to Stevens that he did not want her to call the police and the State failed to present any evidence that he intended on interfering with the orderly administration of justice in doing so.

To find a defendant guilty of aggravated intimidation of a victim, the State must show the defendant had the specific intent to prevent or dissuade the victim from reporting a crime. Intent is a state of mind existing at the time of the offense, which can rarely be directly proven, but may be inferred from conduct and circumstances. State v. Dixon , 289 Kan. 46, 65, 209 P.3d 675 (2009).

Doyle accurately states that if Stevens decided not to report his criminal conduct, she would not have been interfering with the orderly administration of justice. His logic follows that merely expressing an opinion to a victim about his or her decision to call police would not constitute intimidation of a victim. However, we review the evidence in a light most favorable to the State. The evidence shows he kicked the door in, scared everyone in the house, yelled at Stevens about her new phone number, threatened to "wreck shit," then stated repeatedly that he did not want her to call police about his conduct. During their conversations, he told her that even if she called police, he would be back. Stevens testified she offered not to call police if Doyle agreed to never have contact their son again. However, Doyle continued to call.

Considering the evidence in a light most favorable to the State, even though Stevens offered not to call police if Doyle left her and their son alone, the other conversations between them show his intent to dissuade her. As stated above, the victim's decision of whether to report to the police has no effect on whether the defendant committed the crime as the crime is complete once the he or she attempts to dissuade the victim with the required intent. Looking at the circumstances, beginning with the kicked in door, a reasonable person would have perceived Doyle repeatedly asking Stevens not to call police as an attempt to dissuade her so as to interfere with the orderly administration of justice. Given the circumstances, a reasonable person would have interpreted Doyle's assertion that if Stevens called the police he would be back, as sufficiently threatening to show an intent to prevent her from reporting his criminal behavior, interfering with the orderly administration of justice.

Is K.S.A. 2016 Supp. 21-5909 Unconstitutionally Vague?

Doyle contends that the statutory language "interfere in any manner with the orderly administration of justice" is unconstitutionally vague. He claims the vague language permits arbitrary and discriminatory enforcement. Doyle argues a person of ordinary intelligence is left to guess whether his or her conduct was criminal because the statute seemingly criminalizes any type of communication directed at attempting to dissuade somebody with discretion to report a crime from doing so, and so would be void for vagueness. If we determine the statutory language is constitutional, he claims the jury was not properly instructed as to the meaning of the phrase.

"Whether a statute is constitutional is a question of law subject to unlimited review. This court presumes that statutes are constitutional and resolves all doubts in favor of passing constitutional muster. [Citation omitted.]" State v. Bollinger , 302 Kan. 309, 318, 352 P.3d 1003 (2015). We must find the statute constitutionally valid if there is any reasonable way to construe it as such. 302 Kan. at 318. The test for constitutional vagueness consists of two inquiries: (1) whether the statute provides "a person of ordinary intelligence" fair warning as to the proscribed conduct and (2) whether it protects against arbitrary and unreasonable enforcement. 302 Kan. at 318.

Doyle failed to raise this issue before the district court. Although we generally cannot review constitutional issues raised for the first time on appeal, Doyle contends the vagueness argument fits into two exceptions to the general rule. He asserts this is an issue of law arising from proved or admitted facts and consideration is necessary to serve the ends of justice or prevent denial of a fundamental right. This court has permitted review of constitutional vagueness under those exceptions. State v. White , 53 Kan. App. 2d 44, 55, 384 P.3d 13 (2016).

Doyle contends K.S.A. 2016 Supp. 21-5909 is constitutionally invalid under both inquiries of the test. He asserts the statute fails to clarify what contact between an offender and a victim or witness constitutes interference with the orderly administration of justice and such failure criminalizes all communication by the offender with somebody who has discretion in reporting the offender's criminal conduct. Therefore, the offender has no fair notice of the type of conduct that constitutes intimidation of a victim and the broad language permits arbitrary and discriminatory enforcement.

Doyle relies on the concurring opinion by Michigan Supreme Court Justice Levin in People v. Davis , 408 Mich. 255, 290 N.W.2d 366 (Mich. 1980). "To state that the offense can be defined solely in terms of the object sought to be accomplished obstruction of justice may mean that the 'Michigan common-law offense of obstruction of justice' is void for vagueness." 408 Mich. at 292 (Levin, J., concurring). However, this concurring opinion from a Michigan case is neither binding nor persuasive. Justice Levin made the above comment after discussing the history of obstruction of justice as a crime that he believed should have been a category of offenses rather than a single offense. "Obstruction of justice" was a broad term that was the object sought to be accomplished by the conduct. The common law offense provided no guidance as to what elements the prosecution had to satisfy for a conviction. Justice Levin noted that by the year 1800 an indictment under obstruction of justice included conspiring to dissuade a witness from attending judicial proceedings, done with the intent to obstruct the due course of justice. 408 Mich. at 286-87 (Levin, J., concurring).

If we considered the Davis concurrence, we should conclude aggravated intimidation of a victim is not vague as intimidation of the victim is not the object sought to be accomplished, the intent was to interfere with the orderly administration of justice. As such, according to Justice Levin, intimidation of a victim would fit under the umbrella of the overly broad Michigan common-law offense of obstruction of justice.

Doyle does not challenge whether the reporting of a crime is considered part of the "orderly administration of justice." The United States Supreme Court has recognized "society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." Arizona v. Washington , 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The orderly administration of justice encompasses the State's opportunity to prosecute offenders, beginning with the initial report to law enforcement.

Doyle challenges the constitutionality of the phrase "interfere in any manner with the orderly administration of justice." When taken out of context and reviewed alone, that phrase may appear vague, but not when considering it only provides the intent element of the offense. To be convicted of intimidation of a victim under K.S.A. 2016 Supp. 21-5909(a), the State must show the defendant prevented or dissuaded the victim or witness, or attempted to do so, with the "intent to thwart or interfere in any manner with the orderly administration of justice." Thwarting or interfering with the State's opportunity to prosecute offenders is the objective of the conduct.

When considering this phrase, the appellate court first considers the plain meaning of the words together. Black's Law Dictionary 930 (10th ed. 2014) defines "intent" as: "The state of mind accompanying an act, esp. a forbidden act. ... intent is the mental resolution or determination to do [some act]." The definition of "thwart" is "to run counter to so as to effectively oppose or baffle; contravene; to oppose successfully; defeat the hopes or aspirations of." Webster's Ninth New Collegiate Dictionary 1232 (1991). "Interfere" is defined as "to interpose in a way that hinders or impedes." Webster's Ninth New Collegiate Dictionary 631 (1991). The challenged statute falls under Chapter 59 of the Kansas Criminal Code which encompasses "Crimes Affecting Government Functions." The object of the offender is to disable a government function. Therefore, for a conviction under K.S.A. 2016 Supp. 21-5909(a)(2)(A), a third party must act or communicate with a victim or witness in a manner that would discourage him or her from reporting victimization and the defendant's conduct or communication must be done with the purpose of hindering the State's ability to prosecute.

Prior to its repeal, K.S.A. 21-3832(a) required intimidation of a witness or victim to be done "knowingly and maliciously." K.S.A. 21-3831(b) defined "[m]alice" as "an intent to vex, annoy, harm or injure in any way another person or an intent to thwart or interfere in any manner with the orderly administration of justice. " (Emphasis added.) Rhode Island, Wisconsin, Delaware, and California statutes each define "malice" in the same way with respect to the intent required for intimidation of a witness or victim. R.I. Gen. Laws § 11-32-4 ; Wis. Stat. § 940.41 ; Del. Code Ann, tit. 11, § 3531 ; Ca. Penal Code § 136. When the Kansas Legislature repealed the statutory scheme in 2011, it inserted the definition of malice into the statute defining the crime rather than maintaining a separate definitions statute.

There is no precedence regarding the constitutionality of the challenged phrase. However, in People v. Broadbent , No. A141538, 2016 WL, 69916 (Cal. Ct. App. 2016) (unpublished opinion), the First District, Division 2, Court of Appeals of California rejected the claim that the challenged phrase was unconstitutional. The California court reviewed the legislative history, discussing that the California Legislature added the challenged phrase to the definition of malice specifically for the offense of intimidation of a witness or victim based on the Model Statute drafted by the American Bar Association (ABA) Section on Criminal Justice. 2016 WL 69916. The ABA commentary on malice stated:

" 'The Committee felt a need to draw a distinction between persuasion, often rather vigorous, which may be exercised by, for example, a victim or a witness' family members whose motivation for attempting to persuade the person not to testify is legally blameless. Consequently, the malice intended in and defined by the statute should be intentionally and knowingly exercised. The committee grappled considerably with this issue. Some members wished to punish all dissuading but for certain narrowly drawn exemptions, but the majority felt that the statute would potentially punish, for instance, a person casually remarking to a potential witness that he or she should not bother getting involved in the process.' [ABA Section on Crim. Justice, Victims Com., Reducing Victim/Witness Intimidation: A Package (1979) ] at 7." People v. Wahidi , 222 Cal. App. 4th 802, 809, 166 Cal. Reptr. 3d 416 (2013).

The California Court of Appeals found the "definition was intended to exclude innocent conduct that is performed without the requisite specific intent" and, thought the Legislature intended the definition to have a "broad sweep, this definition of malice make plain to whom it applies Broadbent , 2016 WL 69916, at *9. Seeing as the analysis to the challenged language stems from the source of the model statute adopted by the Kansas Legislature, Broadbent is persuasive.

Therefore, contrary to Doyle's assertion, not all communication with a victim, even by the offender, would constitute intimidation of a victim. The communication must be done in a way that would persuade against reporting. A third party may in good faith discuss the victim's or witness' options with the possible reporting party's interests in mind.

Doyle next claims that if we find K.S.A. 2016 Supp. 21-5909 constitutional, the jury was not instructed of the "reasonable construction of the statute that would provide notice of when exercise of a discretionary legal option can constitute interference." In Doyle's attempt to redirect focus away from his criminal conduct and onto the discretion a victim has in reporting a crime, he fails to adequately brief the issue. Though he cites State v. Cummings , 297 Kan. 716, 306 P.3d 556 (2013), he mistakenly claims the issue was the district court's failure to instruct the jury on the definition of "endangerment" rather than "reasonable probability." He also fails to analyze how Cummings relates here. Issues not adequately briefed are deemed waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018).

If we consider Doyle's argument that the jury was not properly instructed, we will analyze the jury instructions in a three-step process. State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018). First, we must determine whether we can or should review the issue. Second, we will consider the merits of the claim to determine whether the district court erroneously instructed the jury. If we determine an instruction error occurred, we will then review the error for reversibility. 307 Kan. at 317 ; K.S.A. 2018 Supp. 22-3414(3). Under the first step, we may review the issue, but Doyle's failure to object at trial will affect the third step of the process-reversibility under the clear error standard. 307 Kan. at 317.

Doyle contends the instruction error stemmed from the jury not being instructed on a reasonable construction of K.S.A. 2016 Supp. 21-5909(a) that permits interference when a victim has discretion in whether to report his or her victimization. However, his argument that the victim's discretion somehow impacts the lawfulness of his actions fails here as it has above. His reliance on Davis , 408 Mich. 255, is misplaced as intimidation of a victim is not defined solely in terms of the object sought to be accomplished. The constitutionality of K.S.A. 2016 Supp. 21-5909(a) is based on the plain meaning of the words read together. Doyle's challenge is contingent on the need for statutory interpretation to produce a reasonable construction of the statute to reach constitutionality. In the absence of such construction, his challenge fails. Because the plain language suffices to pass the muster of constitutionality, no error occurred. We need not analyze this issue under the clear error standard for reversibility.

Did the State Commit Reversible Error by Misstating Evidence and Law in Its Closing Arguments?

Doyle claims prosecutorial error as the State misstated the evidence and law in closing arguments. He asserts the error contributed to the verdict and we must reverse his conviction for aggravated intimidation of a victim.

Under the modified standard in State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016), the appellate court uses a two-step process to evaluate claims of prosecutorial error:

"These two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) ]. In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied , 565 U.S. 1221 (2012). We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, an appellate court need only address the higher standard of constitutional error.' [Citation omitted.]" Sherman , 305 Kan. at 109.

"Every instance of prosecutorial error will be fact specific, and any appellate test for prejudice must likewise allow the parties the greatest possible leeway to argue the particulars of each individual case." 305 Kan. at 110. Even if the prosecutor's actions were egregious, reversal of a criminal conviction is not an appropriate sanction if the actions did not prejudice the defendant. 305 Kan. at 114.

Any argument "must accurately reflect the evidence, accurately state the law, and cannot be 'intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.' " State v. Raskie , 293 Kan. 906, 917, 269 P.3d 1268 (2012) (citing State v. Tosh , 278 Kan. 83, 90, 91 P.3d 1204 [2004] ). A prosecutor commits error even when the misstatement of evidence or law is accidental or inadvertent. See State v. Sturgis , 307 Kan. 565, 570, 412 P.3d 997 (2018).

Misstatement of evidence

Doyle claims the State erred by saying, "Why didn't she call the police? Because he told her not to, and promised her that he would leave her alone and that he would fix the door if she didn't call police." He contends these comments by the State were contrary to the evidence, in which Stevens testified:

"Q. Well, you asked him to leave you alone and have no contact with you and you wouldn't call the police, right?
"A. Yes.
"Q. Okay. And he wanted to have contact with you because of you have a child together, correct?
"A. Yes, yes.
"Q. So -
"A. At this point, I just wanted him to go away, just to leave us alone.
"Q. Well, do you think that's realistic when you both have a child?
"A. No. No. But also don't want my child around somebody like that.
....
"Q. The - so what he told you was that he would have contact with you if you called the police, right? And you didn't want him to have contact, right?
"A. I told him not to have contact and then I wouldn't call the police. And he said that-and then that was it. And then he still continued to call me and so then I called the police."

Doyle asserts the State mischaracterized the evidence by inferring Doyle had not offered to contact Stevens in return for her not calling the police, but Stevens testified she asked Doyle not to contact her and then offered not to call police if he agreed.

The State contends the argument was consistent with the evidence, though the language was changed, the meaning remained the same. Right before the first complained of statement, the State said, "During the phone calls, there's conversation about calling the police and fixing the door. [Stevens] told you that [Doyle] relayed to her not to call the police." The State counters by pointing out that Stevens testified Doyle told her multiple times during the phone calls that he did not want her to call police and if she did, he would be back.

The State correctly argues that no matter which of them brought up Doyle no longer having contact with Stevens, the substance remained the same. Doyle agreed not to have any more contact with Stevens in return for her not calling the police, which, though worded differently, has the same meaning as him promising not to contact her if she did not call police. Significantly, she testified that he continued to call her after agreeing not to, which weighed into her decision to call the police. By continuing to call after agreeing to leave Stevens alone, the issue of who proposed no contact in return for not calling police becomes inconsequential because Doyle did not keep his promise. The State did not err in its representation of the evidence. We need not analyze whether the statements prejudiced Doyle.

Misstatement of Law

Doyle also claims the State misstated the law in its closing argument by diluting its burden of proof when reviewing the jury instruction for aggravated intimidation of a victim. The State argued:

"On paragraph number 1 it says, 'The defendant attempted to dissuade a victim from making a report of victimization of the victim to a law enforcement officer.' Nowhere on there does it say he had to threaten her. All I have to prove beyond a reasonable doubt is that he attempted to dissuade her from making the report of the victimization of the victim and he succeeded in doing that." (Emphasis added.)

Doyle contends the State diluted its burden of proof by saying it only had to prove he attempted to dissuade Stevens from reporting the victimization, when it also had to prove intent.

The State claims it did not misstate the law, but only focused on one element before moving on to the evidence that supported conviction for the offense. It notes that the element read aloud was one of four elements on the instruction sheet read aloud and provided to the jury by the district court, and the jury had been instructed that each element had to be proven beyond reasonable doubt for conviction. The State supports the assertion by pointing to Doyle's closing arguments in which he focused on the second element of the offense.

Contrary to the State's assertion, the above statement was a misstatement of the law. Had the State wished to only focus on one element, it could have done so by pointing out what had to be shown to prove the one element. However, at no point in its closing arguments did the State reference the remaining three elements of the crime or note that it had to prove more than just Doyle's attempt to dissuade Stevens. The comparison to Doyle's closing arguments in which he focused on only one element is unconvincing as Doyle only needed to show reasonable doubt existed as to one element for acquittal but the State's burden was to prove each element beyond a reasonable doubt.

Reversibility

Because the State committed error, we must determine whether the error prejudiced Doyle's due process rights to a fair trial. If the State has shown beyond a reasonable doubt that the error did not affect the outcome of the trial, it is deemed harmless and not reversible. State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).

The State asks us to consider the jury instructions as a whole. The jury was instructed:

"Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded."

The district court instructed the jury on the burden of proof in the second jury instruction,

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.
"It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified."

The State contends that generally, juries are presumed to have followed the instructions provided by the district court and a prosecutor's comments may be mitigated by burden of proof instructions. State v. Rogers , 276 Kan. 497, 503, 78 P.3d 793 (2003) ; see State v. Cosby , 293 Kan. 121, 137, 262 P.3d 285 (2011).

The burden of proof instruction as argued by the State refers the jury to all claims required to be proved by the State. In the jury instruction which provides the elements of aggravated intimidation of a victim, before listing the elements, the instruction provides: "To establish this charge, each of the following claims must be proved[.]" The State focused on the element to counter Doyle's assertion that because he did not threaten Stevens with bodily harm or other negative consequences, he could not be guilty of aggravated intimidation of a victim. In determining whether a defendant was prejudiced, the appellate court must allow parties the greatest possible leeway to argue the particulars of the individual case. Because the jury was properly instructed as to the State's burden of proof and the State only elaborated on the one element it read aloud to counter the defendant's assertion that threat was required, the error was harmless.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF the Petition for a Writ of Habeas Corpus by Bryan BREWER.
    No. 120,410
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019.
    Bryan Brewer, appellant pro se.
    Brian Koch, assistant county attorney, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Bryan Brewer challenges the district court's summary dismissal of his habeas corpus petition related to extradition proceedings. Although Brewer's procedural errors bar our review of most of his claims, we agree that Brewer may be entitled to a hearing on his habeas corpus petition. As a result, we remand for further proceedings.

Factual and Procedural Background

Bryan Brewer was detained in Jackson County based on an arrest warrant out of Oklahoma. According to Brewer, he had been arrested on the same warrant twice before in Shawnee County, but those cases were dismissed when Oklahoma failed to retrieve Brewer or prosecute his case. The Jackson County District Court did not dismiss Brewer's case but granted Brewer a $50,000 own recognizance bond, as the extradition statutes permit in some cases. See K.S.A. 22-2715 (permitting the judge to commit the accused to the county jail for up to 30 days to await requisition, "unless the accused give bail as provided in the next section, or until he shall be legally discharged."); K.S.A. 22-2716 (providing that unless the offense with which the prisoner is charged is one punishable by death or life imprisonment, the judge may admit the person arrested to bail by bond, conditioned on his later appearance under a governor's warrant); K.S.A. 22-2717 (providing for a 60-day extension of jail time or bail if the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond).

After he was released on bond, Brewer filed a petition for writ of habeas corpus under the Uniform Criminal Extradition Act- K.S.A. 22-2701 et seq.,-to test the legality of the Oklahoma fugitive warrant that led to his repeated arrests in Kansas. A habeas corpus proceeding is the exclusive vehicle for challenging an extradition request. Brewer asked the district court to dismiss Oklahoma's fugitive warrant against him because Oklahoma had failed to exercise its extradition rights:

"Bryan Brewer prays this Court grant him a Writ of Habeas Corpus, freeing him from the alleged extradition warrant from the State of Oklahoma, further advising the Governor of the State of Kansas that the State of Oklahoma has failed, refused, and neglected to exercise their rights pursuant to the Uniform Criminal Extradition Act and that any alleged arrest warrant from the State of Oklahoma will not honored by any law enforcement agency in the State of Kansas for the reason that the State of Oklahoma has abdicated their rights by failing to act appropriately."

The district court denied the petition, finding that because Brewer had been released on bond he was not in custody as was necessary for this habeas petition. The district court also reasoned that Brewer had no remedy in Kansas, but he was free to return to Oklahoma to challenge his arrest warrant there.

Brewer timely appeals, raising several constitutional claims and arguing that the district court erred in denying his application for writ of habeas corpus.

Procedural Errors

We first address the procedural matters raised by the State. We note the State's assertion that the Kansas Supreme Court has dismissed two writs Brewer had filed based on similar allegations and facts. But those dismissals were summary, did not state their reasons, and could have been based on procedural errors. The State has shown no reason why the Supreme Court's dismissal of Brewer's previous writs warrants our dismissal of Brewer's appeal.

We agree, however, that many of Brewer's arguments violate Rule 6.02(a)(4) (2019 Kan. S. Ct. R. 34) by not citing any record supporting his factual assertions. A pro se litigant in a civil case must follow the same rules of procedure which are binding upon a litigant represented by counsel. In re Estate of Broderick , 34 Kan. App. 2d 695, 701, 125 P.3d 564 (2005). Under Rule 6.02(a)(4), we presume that a factual contention is not supported by the record when a party fails to cite to the record. Most of Brewer's assertions lack any citation to the record.

And the record itself is scant. It does not reveal crucial facts, including:

• What crime Brewer was convicted of in Oklahoma that caused the Oklahoma warrant for Brewer's arrest;
• whether Brewer's Oklahoma crime was a felony or a misdemeanor;
• whether the Governor of Oklahoma filed a demand for Brewer's extradition;
• whether Brewer was previously arrested in Kansas on the Oklahoma fugitive warrant;
• whether Oklahoma authorities were notified of Brewer's arrest in Kansas;
• whether Oklahoma declined to initiate extradition proceedings;
• whether Brewer waived extradition proceedings; and
• whether the Kansas governor issued a warrant for Brewer's arrest instructing Kansas officials to bring Brewer before a Kansas court and, if directed by that court, to extradite him to Oklahoma.

Those facts would normally be established in an extradition proceeding to lay the foundation for an extradition prisoner's habeas petition in the asylum state. See generally K.S.A. 22-2701 et seq. Yet Brewer failed to include evidence of any of those facts in the record on appeal. As the party claiming error, he has the burden to designate a record that shows prejudicial error. Without a record showing error, we presume the action of the trial court was proper. State v. Sisson , 302 Kan. 123, 128, 351 P.3d 1235 (2015).

Brewer also failed to raise before the district court most of the issues he raises on appeal. Our general rule requires a party to raise an issue to the district court before raising it on appeal. See State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018). So Brewer cannot raise such issues now unless he meets an exception to that rule. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). But Brewer does not argue that any exception applies. We thus enforce Supreme Court Rule 6.02(a)(5) and decline to reach the merits of Brewer's unpreserved claims. See State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).

Brewer did, however, raise one issue before the district court and on appeal-his claim that the district court erred in not granting him a hearing on his habeas corpus petition. As to this issue, the material facts are few and are not in controversy. We thus reach the merits of that claim.

Did the District Court Err in Summarily Denying Brewer's Application for Writ of Habeas Corpus?

The district court summarily dismissed Brewer's petition because it found Brewer was not in custody for purposes of a K.S.A. 2018 Supp. 60-1501 petition. We exercise unlimited review of a summary dismissal of a 60-1501 petition and of the district court's conclusions of law. Johnson v. State , 289 Kan. 642, 649, 215 P.3d 575 (2009) ; Rice v. State , 278 Kan. 309, 320, 95 P.3d 994 (2004).

Under our general habeas corpus statute, K.S.A. 2018 Supp. 60-1501(a), "any person in this state who is detained, confined or restrained of liberty on any pretense whatsoever ... may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place." K.S.A. 2018 Supp. 60-1501(b) states the time frame in which "an inmate in the custody of the secretary of corrections" must petition for writ under subsection (a). The district court denied Brewer's writ because it found he was not an inmate "in custody" as this statute requires.

But our precedent holds that a person released on bond is in custody for purposes of filing a K.S.A. 2018 Supp. 60-1501 writ of habeas corpus.

"The writ of habeas corpus provides a mechanism under which a criminal defendant can seek relief from confinement under an erroneous bond, or even relief while released on bail. See K.S.A. 1997 Supp. 60-1501, the statutory habeas corpus proceeding; see also In re Habeas Corpus Petition of Mason, 245 Kan. 111, 115, 775 P.2d 179 (1989) ('A defendant who has been released on bond nevertheless remains in custody for purposes of a writ of habeas corpus'; writ of habeas corpus raising double jeopardy issue following mistrial granted and defendant discharged.)." Smith v. State , 264 Kan. 348, 356, 955 P.2d 1293 (1998).

We stated the reason for that rule in Henderson v. Schenk , 6 Kan. App. 2d 562, 562-63, 631 P.2d 246 (1981) :

"Although a defendant is apparently at liberty when on bond, he may still be considered in custody for the purposes of obtaining a writ of habeas corpus. Hensley v. Municipal Court , 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973). See also In re Berkowitz , 3 Kan.App.2d 726, 727, n.1, 602 P.2d 99 (1979), and cases cited therein. This is true because even while on bond, a defendant is subject to supervision of the court and to conditions which restrain his liberty." 6 Kan. App. 2d at 562-63.

Even though Brewer was on bond, he was subject to supervision of the court and to conditions which restrain his liberty. He was thus in custody under K.S.A. 2018 Supp. 60-1501, so the district court erred in finding to the contrary.

Kansas decisions on this issue differ from the Ohio decisions on which the district court relied. See Elmer v. Kohl , 2000 WL 84379 (Ohio Ct. App. 2000) (unpublished opinion) (finding that the accused must presently be in custody to challenge extradition through a habeas corpus petition; relying on cases holding that a petitioner who is no longer physically confined in jail or prison no longer has standing to bring an action in habeas corpus); Ali v. State , 2000 WL 522504, at *3 (Ohio Ct. App. 2000) (unpublished opinion) (same). Under Kansas law, the fact that Brewer was released on bond when he filed his habeas corpus petition did not deprive the district court of jurisdiction to hear Brewer's petition or deprive Brewer of his remedy under K.S.A. 2018 Supp. 60-1501.

But Brewer's petition rests on K.S.A. 22-2710 and the Uniform Criminal Extradition Act. As the district court noted, K.S.A. 22-2710 is not as broad as K.S.A. 2018 Supp. 60-1501 -it does not cover circumstances in which a person is "detained, confined or restrained of liberty on any pretense whatsoever." Instead, K.S.A. 22-2710 is limited to a "prisoner" "in custody":

"No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting attorney of the county in which the arrest is made and in which the accused is in custody , and it shall be the duty of the prosecuting attorney to notify said agent of the demanding state." (Emphases added.) K.S.A. 22-2710.

Even so, we believe our Supreme Court would interpret the "in custody" requirement of this statute consistently with its broad interpretation of "custody" in K.S.A. 2018 Supp. 60-1501. See Smith , 264 Kan. at 356 ; Schenk , 6 Kan. App. 2d at 562-63. We see no reason why an accused released on bond would be in custody for purposes of petitioning for a writ of habeas corpus, generally, but would not be in custody for purposes of petitioning for a writ of habeas corpus under our extradition statutes. The district court thus erred in summarily dismissing Brewer's petition based on its finding that he was not in custody.

Did the District Court Err in Finding Brewer's Writ of Habeas Corpus Moot?

The district court also found that it could not provide Brewer with a remedy because it had released Brewer from jail on an own recognizance bond. The district court acted within its discretion by releasing Brewer from jail, if we assume that Brewer's Oklahoma crime is not punishable by death or life imprisonment, and that he was awaiting extradition. See K.S.A. 22-2716. But the district court appears to have dismissed Brewer's writ of habeas corpus as moot because it had released Brewer from jail and believed it could do no more. Because mootness is a doctrine of court policy, our review of this issue is unlimited. State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012).

The mootness doctrine recognizes that the role of the court is to determine real controversies about the legal rights of persons involved in the case before it and to adjudicate those rights in an operative, final, and conclusive manner. Hilton , 295 Kan. at 849. If it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and the judgment would not impact any of the parties' rights, then the matter is moot. Mundy v. State , 307 Kan. 280, 288-89, 408 P.3d 965 (2018).

If, however, Brewer is correct that he has been illegally detained in interstate extradition proceedings, then the law provides a remedy for that beyond merely releasing him from jail on bond. See K.S.A. 22-2710 ; K.S.A. 2018 Supp. 60-1501. Our statutes permit the judge to commit a fugitive to custody for 30 days, then recommit the fugitive one time for a period not to exceed 60 days, while awaiting a governor's warrant. But it does not permit two or more successive recommitments even if the aggregate time does not exceed 60 days. See K.S.A. 22-2717 (stating: "If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days , or a judge or magistrate may again take bail for his appearance and surrender, as provided in section 22-2716, but within a period not to exceed sixty days after the date of such new bond." [Emphases added.] ). Under the plain language of these statutes, there is no authority to hold a defendant on a fugitive warrant for a period that exceeds 90 days. By filing this petition, Brewer sought the relief of immediate release from custody. That relief is not mooted by his release on bond.

Reversed and remanded for further proceedings.


author: Leben, J.:

text:
    AUTOMOTIVE CREDIT CORPORATION, Appellee, v. Gennefer Marie WALLEY, a/k/a Gennefer Marie Muzzy, Defendant, and Hendrickson Chiropractic & Health Center, P.A., Appellant.
    No. 120,222
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    David R. Schapker, of Evans & Mullinex, P.A., of Shawnee, for appellant.
    Mark C. Wilson, of Wilson Law, LLC, of Lenexa, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Leben, J.:

Hendrickson Chiropractic & Health Center, P.A. (the Clinic), a chiropractic clinic in Harvey County, appeals from a default judgment entered against it. The district court entered the default after the Clinic was twice served with court papers garnishing the pay of one of its employees. When the Clinic failed to garnish the employee's wages or file a response to the garnishment, the court granted a default judgment.

The Clinic asked the district court to set aside that default judgment. And an owner of the practice, Dr. Todd Hendrickson, testified that he had never personally received the garnishment papers. But the district court found that Dr. Hendrickson had put the employee subject to the garnishment in charge of handling incoming mail and papers-and that Dr. Hendrickson still had not acted after the law firm representing the creditor had personally contacted him when the first set of garnishment papers went unacknowledged. On these facts, we find no abuse of discretion in the district court's denial of the Clinic's motion to set aside the default judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The garnishment papers were an attempt to collect a debt owed by Gennefer Muzzy, an employee of the Clinic, to Automotive Credit Corporation. Automotive Credit got a court judgment against Muzzy in Missouri in 2013.

In 2017, Automotive Credit filed that judgment in Kansas and had garnishment papers issued to the Clinic. A garnishment is a court order to gain control over funds or property of a debtor that's in the hands of a third party. When a litigant gets a money judgment against someone, that litigant, now a judgment creditor, may garnish property of the judgment debtor that is held by others, like money in a bank account or unpaid wages. The garnishment order here directed that the Clinic withhold a portion of Muzzy's wages.

When a garnishment is served, the third party is required to answer within 14 days stating what property, if any, it has belonging to the judgment debtor. See K.S.A. 2018 Supp. 60-736 ; K.S.A. 2018 Supp. 60-737. And that property generally must be held to pay toward the judgment debt. If the party against which the garnishment order is served (the garnishee) doesn't answer within 14 days, Kansas law provides that a judgment for the full amount of the creditor's claim may be entered against the garnishee. See K.S.A. 60-741.

Automotive Credit sent the first garnishment order to the Clinic in December 2017. The garnishment order was served by a sheriff's deputy to someone at the Clinic (apparently Muzzy) on December 27. When no response was made to it-and no funds withheld-Julie Shelton, a legal assistant for the law firm representing Automotive Credit called and spoke to Dr. Hendrickson on April 10, 2018.

Shelton and Dr. Hendrickson had different recollections of their conversation. She said that she told him that a wage garnishment had been sent to his company, and that he said he wasn't aware of it and would call her back. She said he called back a few minutes later and said that Muzzy was having hard times. She said she told him three times that he had to file an answer to the garnishment, and that she would be sending new garnishment documents to him soon.

Dr. Hendrickson testified that he wasn't aware of a garnishment before Shelton's call and that he wasn't aware after the call that a new garnishment would be coming. He said that Shelton told him Muzzy needed to file for bankruptcy. He said he then discussed that with Muzzy, who said she was going to do that. Dr. Hendrickson said he thought the issue would be gone once she filed for bankruptcy.

Shelton said she didn't recall saying that Muzzy should file a bankruptcy case and that she doesn't give legal advice. After the call, Shelton prepared a new set of garnishment papers that she said she sent to Dr. Hendrickson on May 3 both by fax (with confirmation of receipt) and by UPS overnight delivery. Kansas law allows garnishments to be served by an overnight delivery service, K.S.A. 2018 Supp. 60-303(c)(1), and by fax transmittal. K.S.A. 2018 Supp. 60-303(f)(2). The UPS delivery receipt showed receipt by G. Muzzy; she presumably also got the fax transmittal.

The district court noted that Shelton and Dr. Hendrickson had different recollections of their conversation, but it found her testimony more credible and accepted it. Based on it, the court concluded that Dr. Hendrickson "was aware of the garnishment and failed to take reasonable steps to have a meaningful conversation with [Automotive Credit] or to file an Answer [to the garnishment]." The court also concluded that Muzzy had gotten the garnishment paperwork each time and had not shared it with Dr. Hendrickson.

When the Clinic didn't respond to the second garnishment, Automotive Credit moved the court on May 24 for a default judgment in the amount of Muzzy's total debt to Automotive Credit. That motion is not in the appellate record, but Shelton testified that a copy of it was mailed to the Clinic. The court set the motion for hearing on July 5, and Automotive Credit also sent a notice of that hearing to the Clinic. It still had not responded to the garnishment by July 5, so the district court granted default judgment under K.S.A. 60-741. The written journal entry granting default judgment was filed July 12.

In early August, the Clinic moved to set aside the default judgment. Another Kansas statute, K.S.A. 60-260, provides that a judgment may be set aside for mistake, inadvertence, surprise, excusable neglect, or any other reason that justifies relief. K.S.A. 2018 Supp. 60-260(b)(1), (6). The district court heard testimony from Shelton and Dr. Hendrickson before denying the motion. As we indicated earlier, the court generally accepted Shelton's testimony. It concluded that because Dr. Hendrickson continued to leave Muzzy in charge of the incoming mail after knowing another garnishment was being sent, he hadn't shown excusable neglect for failing to respond to the second garnishment:

"While default judgments are not favored, the Court finds Ms. Shelton's recollection of the ... telephone conversation to be more likely true than not. As a result, [the Clinic] was aware of the garnishment and failed to take reasonable steps to have a meaningful conversation with [Muzzy] or file an Answer after speaking with Ms. Shelton. Although Garnishee's time to respond to the garnishment ... had long expired, [Automotive Credit] gave [the Clinic] a second opportunity to respond when the garnishment paperwork was resent ... and [the Clinic] again failed to respond. ... Furthermore, knowing that [Muzzy] likely withheld the [first] garnishment documents from [Dr. Hendrickson], [the Clinic] continues to employ [Muzzy] and continues to be susceptible to potential fraud by [her]. [The Clinic] took no precautions to protect itself. The Court therefore finds there was no mistake or excusable neglect by [the Clinic] and DENIES the Motion to Set Aside Default Judgment."

The Clinic has now appealed to this court.

ANALYSIS

On appeal, the Clinic argues that it showed excusable neglect and that the district court abused its discretion by denying the motion to set aside the default judgment. The motion filed in the district court hasn't been provided to us, so we will limit our consideration of potential grounds for setting aside the default judgment to the only one being argued on appeal, excusable neglect. By excusable neglect, we mean a legitimate or valid excuse for the failure to perform some required action at the proper time. See Morton County Hospital v. Howell , 51 Kan. App. 2d 1103, 1112-13, 361 P.3d 515 (2015) ; Black's Law Dictionary 1244 (11th ed. 2019).

Whether to set aside a default judgment based on excusable neglect is a discretionary judgment call for the district court. Garcia v. Ball , 303 Kan. 560, 565-66, 363 P.3d 399 (2015). So we set it aside only if the district court abused its discretion, meaning either that its decision was unreasonable or based on a factual or legal error. 303 Kan. at 566.

The Clinic emphasizes that default judgments are disfavored. As our Supreme Court has said, "The law disfavors default judgments, especially in matters involving large sums of money, and a court should resolve any doubt in favor of a motion to set aside a default judgment ...." Garcia , 303 Kan. 560, Syl. ¶ 3. But the district court recognized in its written opinion that "default judgments are not favored," and the Clinic does not suggest that the district court misunderstood the law.

What the Clinic does suggest on appeal is that the district court misunderstood the facts and misapplied the law to them. The Clinic argues that "[n]othing in the record indicated that the Garnishee had any knowledge of the first garnishment order," and that the second was almost certainly intercepted by Muzzy. The Clinic argues that it should have no liability because only Muzzy knew about the garnishments: "With the only tangible evidence showing that the Debtor was the one signing for her own garnishment packages, a reasonable person would conclude that the Debtor likely withheld all notices, pleadings and garnishment packets." With that understanding, it suggests that the district court's decision was unreasonable.

But the Clinic ignores the district court's factual findings and the evidence supporting them. The court believed Shelton's testimony. And Shelton testified that she told Dr. Hendrickson that he needed to file an answer to the garnishment or a judgment could be taken against his company:

"Q: Did you make it clear what the purpose of your call was?
"A: Yes, I told him that the garnishment had been served and answers were past due, and his office manager had promised those answers and we still hadn't received them, so I was following up before any further action was taken.
"Q: Did you discuss with him what further action would entail?
"A: Yeah. I remember reiterating three times, you have to, have to, have to file these garnishment answers. You have to start this garnishment. And I told him if he did not, then he risked a judgment against his company which he did not want.
"Q: And did Mr. Hendrickson reply in any way shape or form?
"A: I believe he acknowledged that, 'No, I don't want a judgment against my company.' "

That testimony supported the district court's conclusion that even after Dr. Hendrickson knew that the first garnishment had been sent but never seen by him-presumably because Muzzy withheld it from him-he continued to keep her on as the person who would receive any more garnishment papers. The district court found that wasn't a mistake or excusable neglect by Dr. Hendrickson.

We find nothing unreasonable about that conclusion. Dr. Hendrickson knew that a garnishment had been served and not responded to. He knew that a second garnishment was on the way. He knew that a judgment could be taken against the business if no answer was made. And he knew that the judgment debtor, Muzzy, had failed to tell him about the first garnishment and was the likely recipient for a second one. Yet the Clinic took no action to respond to the garnishment until after a default judgment was entered in July 2018, more than six months after an answer had been due on the first garnishment and two months after Shelton's phone call.

The Clinic makes two other legal arguments, but neither shows legal error by the district court.

First, the Clinic notes that the district court may set aside a default judgment when it finds (1) that the nondefaulting party won't be prejudiced, (2) the defaulting party has a meritorious defense, and (3) the default wasn't the result of inexcusable neglect. See Montez v. Tonkawa Village Apartments , 215 Kan. 59, Syl. ¶ 5, 523 P.2d 351 (1974) ; Akesogenx Corp. v. Zavala , 55 Kan. App. 2d 22, 45, 407 P.3d 246 (2017). Even if those factors are all met, whether to set aside the default is still a discretionary call for the trial court.

But the Clinic doesn't show how these factors were met here. On the prejudice side, the attorney for the Clinic told the district court that Muzzy filed a Chapter 7 bankruptcy sometime in July 2018. That would leave Automotive Credit no way to proceed with a new garnishment-and the Clinic should have been garnishing Muzzy's pay starting that January. Even if the bankruptcy trustee set aside garnishments within 90 days of the bankruptcy as preferential transfers, see 11 U.S.C. § 547(b) (2016) ; In re Morehead , 249 F.3d 445 (6th Cir. 2001), Automotive Credit can't be put back in the position it would have been in had the Clinic garnished Muzzy's wages in January, February, and March. Similarly, until the bankruptcy filing, the Clinic had no meritorious defense to its duty to garnish Muzzy's wages. And the district court saw no showing of excusable neglect. The Clinic had the burden to show that the default judgment should be set aside. See Akesogenx , 55 Kan. App. 2d at 41. It did not do so.

Second, the Clinic cites Boyce v. Boyce , 206 Kan. 53, 57, 476 P.2d 625 (1970), in which our Supreme Court found no abuse of discretion when a district court set aside a default judgment. The Boyce case does have some similarity to our case; in Boyce , a garnishment was served on a small-town bank at a time when the bank president, who normally handled the garnishments, had left unexpectedly for medical treatment. Another bank employee put a hold order on the garnishee's account but forgot to tell the bank president about it when he returned. Because of that, the bank didn't file an answer to the garnishment in court. The district court in Boyce declined to enter a default judgment, concluding that the failure had resulted from excusable neglect, and the Kansas Supreme Court affirmed.

Boyce doesn't provide a reason to reverse the district court in our case. Here, Dr. Hendrickson didn't take action as soon as he learned of a problem. He learned in April that one garnishment had been sent and not responded to, but he took no action until after another garnishment had been sent, a court judgment had been entered against the Clinic, and a garnishment on that judgment had recovered funds from the Clinic. In Boyce , the bank responded as soon as it learned about its failure to answer. Also, the garnishee in Boyce had a negative bank balance when the garnishment hit, so there truly was no prejudice from any failure to correctly handle the garnishment paperwork.

After hearing the testimony of Dr. Hendrickson and Shelton, the district court found Shelton's testimony more credible. Based on that testimony, the district court acted within its discretion when it entered judgment against the Clinic.

We therefore affirm the district court's judgment.


text:
    NATIONSTAR MORTGAGE LLC, d/b/a Champion Mortgage Company, Appellee, v. UNKNOWN HEIRS, Executors, Administrators, Devisees, Trustees, Creditors, and Assigns OF Lucille L. JACKSON, Deceased, et al., Defendants, and Roy L. Jackson, Appellant.
    No. 120,155
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Roy L. Jackson, appellant pro se.
    Blair T. Gisi, of Overland Park, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Nationstar Mortgage LLC, d/b/a Champion Mortgage Company (Champion) moved to foreclose on a reverse mortgage after the homeowners passed away. The homeowners' son, Roy Jackson, opposed the foreclosure pro se. The district court granted Champion summary judgment and permitted the sale of the house. After the house was sold, Roy filed numerous motions attempting to void the sale. On appeal, Roy presses four basic contentions. First, he argues that the district court lacked subject matter jurisdiction over this case. Second, Roy argues that the district court violated his due process rights under the Fourteenth Amendment to the United States Constitution by failing to give him proper notice of its signed orders. Third, Roy argues that the district court violated his due process rights under the Fourteenth Amendment by denying his May 2017 request to participate in a pretrial conference by telephone. Fourth, Roy argues that the district court lacked jurisdiction over the foreclosure suit because the suit was prematurely filed. Of these four issues, we find none to be meritorious. Accordingly, we affirm in part and dismiss in part.

In 2007, Harold and Lucille Jackson took out a reverse mortgage on their Larned home. The terms of the reverse mortgage provided that the lender "may require immediate payment in full of all outstanding principal and accrued interest if ... [a] [b]orrower dies and the [p]roperty is not the principal residence of at least one surviving [b]orrower." The mortgage lender identified in the mortgage note was Urban Financial Group, Inc. A rider accompanying the mortgage note stated that payments should be made to the Seattle Mortgage Company.

On the same day the mortgage was executed, Urban Financial Group "[sold], assign[ed] and transfer[red] ... all beneficial interest" under the mortgage "together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said [m]ortgage" to the Seattle Mortgage Company. This assignment was recorded in Pawnee County, Kansas, on August 1, 2007.

On November 13, 2007, the Seattle Mortgage Company assigned and transferred "all beneficial interest" under the mortgage "together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said [m]ortgage" to Mortgage Electronic Registration Systems, Inc. (MERS). This assignment was recorded in Pawnee County, Kansas, on April 21, 2008.

On November 27, 2012, MERS assigned "all its rights, title, and interest" in the mortgage to Champion Mortgage Company (Champion). This assignment was recorded in Pawnee County, Kansas, on December 3, 2012.

On February 20, 2015, Harold died. Then on April 11, 2015, Lucille died.

On August 10, 2015, Champion filed a petition in Pawnee County District Court to foreclose on the mortgage. Champion attached to its petition copies of the mortgage note and all of the above assignments. On September 4, 2015, Roy, Harold and Lucille's son, moved to remove the case to the United States District Court for the District of Kansas. The United States District Court remanded the case to Pawnee County District Court.

On November 30, 2015, Roy moved to dismiss the case for failure to state a claim upon which relief can be granted; Roy alleged that Champion did not own the mortgage note. On January 11, 2016, Roy filed another memorandum in support of his motion to dismiss; this time he argued that Champion lacked standing to foreclose on the mortgage.

On March 4, 2016, the Pawnee County District Court denied Roy's motion to dismiss. The Pawnee County District Court found that "[i]t is uncontroverted in this case that [Champion] holds the original note signed by Defendants ... and endorsed in blank. The record further reflects that [Champion] is the assignee of record of the mortgage." Thus, the court held that Champion, "as the holder of the promissory note, has standing to bring this foreclosure action."

On March 11, 2016, Roy answered the petition. He generally denied Champion's claims and raised 10 affirmative defenses. Roy alleged that Champion failed to establish any agency relationship between MERS and "any lender in the chain of ownership & assignments." He alleged that "MERS is not mentioned in [a]ny loan documents as any lenders [sic ] agent." He further alleged that Champion failed to establish that MERS had the authority to assign the mortgage to Champion.

On April 10, 2017, Roy filed a "First Amended Answer & Counterclaim." Champion moved to strike the amended answer and counterclaim, arguing that the new filing was impermissible as it was more than 21 days after Roy filed his original answer, that Champion did not consent to the amendment, and that the court had not granted Roy leave to file an amended answer. Champion also moved for sanctions against Roy. The motions were set for hearing on May 10, 2017. Roy moved for permission to attend the May 10, 2017 conference via telephone. The Pawnee County District Court denied Roy's motion to attend the hearing by phone.

On May 15, 2017, the Pawnee County District Court issued an order striking Roy's amended answer, dismissing his counterclaim, and denying his motions for a more definite statement. Also on May 15, 2017, the Pawnee County District Court granted Champion's motion for sanctions against Roy. The court awarded Champion its attorney fees accrued defending against Roy's amended answer and counterclaim and later related filings. The court also ordered that Roy was "required to obtain leave of Court prior to filing any new Motions going forward in this litigation."

On July 27, 2017, Champion moved for summary judgment. Champion alleged that Champion or its agent was "in possession of the [n]ote" and was the "assignee of record of the [m]ortgage." Champion argued that because it had established it held a beneficial interest in the mortgage note and the mortgage and the borrowers defaulted, it was entitled to summary judgment. Champion included as exhibits copies of the mortgage note and the assignments; it also included an affidavit from the assistant vice president of Champion stating that Champion possessed the mortgage note "at the time of filing this action and at all times thereafter" and that the assistant vice president was "aware of the physical location of the original [n]ote." Roy did not respond to the motion.

On September 28, 2017, the Pawnee County District Court granted Champion's motion for summary judgment. The court ordered a sheriff's sale of the home to satisfy the mortgage. The house sold for $18,000 at a sheriff's sale on November 30, 2017. On December 1, 2017, Champion moved to confirm the sheriff's sale. The Pawnee County District Court approved the sale on December 5, 2017. On December 20, 2017, Champion moved to extinguish Roy's redemption rights and authorize execution of an immediate sheriff's deed to the property.

On January 24, 2018, Roy moved to recuse Pawnee County District Court Judge Bruce Gatterman from the case. Roy alleged that Judge Gatterman displayed " 'bias, partiality, favoritism, unfairness, and injustice,' " in his handling of the foreclosure suit. That same day, Roy also filed a "Motion for Relief from Void Judgment." On January 29, 2018, Roy moved to stay the foreclosure proceedings.

The Chief Judge of the 20th Judicial District, which includes Pawnee County, reviewed Roy's motion to recuse Judge Gatterman. In an order issued February 8, 2018, the Chief Judge found no grounds for Judge Gatterman to be recused and denied Roy's motion. On March 7, 2018, Roy timely filed a notice of appeal regarding the February 8, 2018 order denying his motion to recuse Judge Gatterman.

On April 25, 2018, Roy filed a "14th Amendment Request to Disqualify" Judge Gatterman, wherein he "respectfully demand[ed] the disqualification" of Judge Gatterman from any further involvement in the case.

On April 30, 2018, the Pawnee County District Court denied Roy's motion to stay the proceedings and his motion to disqualify Judge Gatterman. Also on April 30, 2018, the Pawnee County District Court granted Champion's motion to extinguish Roy's redemption rights and struck Roy's motion for relief from a void judgment.

On May 7, 2018, Roy filed a "Notice of Objection Pursuant to Rule 170." Roy objected to the following:

"1) 'ORDER' denying Defendant Roy L. Roy's Motions; (filed 4-30-18);
"2) 'ORDER' granting Plaintiffs Motions to extinguish redemption rights, strike Defendant's Motion for relief from VOID JUDGMENT, (filed 4-30-18);
"3) 'ORDER' (filed 5-5-17) (on Rule 145 Motion to attend conference by phone);
"4) 'ORDER' striking amended answer, dismissing counterclaim & denying Motion more Definite statement, as amended, (filed 5-15-17);
"5) 'ORDER' awarding sanctions, (filed 5-15-17);
"6) 'ORDER' Case management, (filed 5-15-17)."

Also on May 7, 2018, Roy filed a "Motion for Issuance of Rule 165 Findings of Fact and Conclusions of Law." Roy moved the court to issue findings of fact and conclusions of law for each of the orders referenced in his objection. On June 13, 2018, Champion moved to strike these motions. Champion noted that Roy did not obtain leave of court to file these motions, despite being required to by the May 15, 2017 Order Awarding Sanctions.

On June 28, 2018, the Pawnee County District Court held a telephone hearing on Roy's motions and Champion's motion to strike. On August 31, 2018, Roy moved to "strike and or vacate" the June 28, 2018 hearing, arguing that the phone hearing violated his rights under the Americans with Disabilities Act (ADA) because he has a hearing disability. Champion opposed the motion, arguing that Roy had never previously mentioned this disability and, in fact, requested multiple times to appear by phone at hearings.

On October 2, 2018, the Pawnee County District Court issued an order denying Roy's motions for Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) findings of fact and conclusions of law and striking his notice of objection under Supreme Court Rule 170 (2019 Kan. S. Ct. R. 222).

On October 3, 2018, the Pawnee County District Court issued a scheduling order in which it stated it elected to treat Roy's motion to strike or vacate the hearing as a motion to reconsider. The court noted that in response to Roy's filing, it provided him with transcripts of the May 10, 2017 and April 27, 2018 hearings, which were the subject of his motions for Rule 165 findings and Rule 170 objection. Then the court stated:

"In the interests of fundamental fairness and an opportunity to be heard, the Court grants leave to both parties to submit written argument and authority in support of, or in opposition to, the two Motions filed by Jackson, which were previously heard at the hearing of June 28, 2018; specifically addressing the issue as to why these Motions were properly before the District Court on that date, and secondly, why the District Court should or should not reconsider its rulings of April 27, 2018, under K.S.A. 60-212 or K.S.A. 60-260, or other applicable law."

On October 4, 2016, Roy filed a "Notice that ADA Matter is settled." He wrote:

"The Defendant, Roy Jackson, hereby informs the Court that he believes the Court has Complied in part with his 'ADA' request for accommodations per my August 31, 2018 Notice. These two 'One-sided' hearings, and more importantly the transcripts reveal self Serving frivolous arguments of Counsel that are 'easily' refutable. For this reason, requiring Counsel for Plaintiff to file legal memorandum would be a waste of my time, as it is plainly Clear, that Counsel would have no legitimate case law that would support those 'ridiculous' Arguments made at those hearings.
"Lastly, Plaintiff's petition & exhibits, clearly did not present a 'cognizable claim' for which Any relief could have been granted. Nonetheless, Defendant would like to thank the Court for Providing transcripts of the hearings, and I consider this 'ADA' matter presently CLOSED."

Then on October 9, 2018, Roy filed a "Notice of Intent to Proceed with Appeal." He alleged that on October 6, 2018, he "received 'simultaneous' mailings from the Court, and From Plaintiffs' Counsel, that he believes is an attempt to 'encroach' upon his ADA request, And retaliation in the form of intimidation, for engaging in protected conduct." Roy wrote that he was "SATISFIED with the accommodation provided by the Court, (Two transcripts), and ... considers His ADA matter settled & closed." He went on to write: "I HAVE NOT, AND DID NOT FILE OR REQUEST A MOTION TO RECONSIDER UNDER ANY KANSAS STATUTE."

On October 26, 2018, the Pawnee County District Court issued another order. It stated that it confirmed its denial of Roy's Notice of Objection pursuant to Rule 170. The court also confirmed its denial of Roy's motion for issuance of Rule 165 findings of fact and conclusions of law; the court found that the motion was moot because it provided Roy with a free transcript of the April 27, 2018 hearing "which provides information to him of the Court's findings of fact and conclusions of law entered on that date, which are accurately reflected in the subsequent Order entered April 30, 2018."

On October 31, 2018, Roy filed another notice of appeal stating he was appealing the Pawnee County District Court's orders dated December 5, 2017, and October 2, 2018.

Did the Trial Court Lack Subject Matter Jurisdiction Over This Case?

"It is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal." Hess v. St. Francis Regional Med. Center , 254 Kan. 715, 718, 869 P.2d 598 (1994). A civil appeal must be filed within 30 days of the "entry of the judgment." K.S.A. 2018 Supp. 60-2103(a).

Roy's timely March 7, 2018 notice of appeal states only that he "appeals from the Order of February 8, 2018." Roy later filed an additional notice of appeal on October 31, 2018, appealing from orders issued on December 5, 2017, and October 2, 2018. This notice of appeal was untimely for the December 5, 2017 order, but timely for the October 2, 2018 order. Roy does not specifically identify the October 2, 2018 order in his brief. Independent review of the record shows that on October 2, 2018, the trial court denied Roy's May 7, 2018 motion "for Issuance of Rule 165 Findings of Fact and Conclusions of Law" and struck his May 7, 2018 "Notice of Objection Pursuant to Rule 170."

Accordingly, this court only has jurisdiction over issues arising from the February 8, 2018 order, and the October 2, 2018 order. Roy's issues II and III do not deal with either of these orders. Accordingly, this court does not have jurisdiction over these issues. See Hess , 254 Kan. at 718. This court cannot reach Roy's issue IV on the merits because he inadequately briefed the issue and it is therefore waived. See Russell v. May , 306 Kan. 1058, 1089, 400 P.3d 647 (2017).

This leaves only Roy's issue I, where he argues:

"The District Court Lacked Subject Matter Jurisdiction because there were no Documents submitted with the petition that acknowledges MERS as an agent or nominee Of any lender, and as such appellee lacked standing, and MERS assignment to Champion Mortgage was materially defective."

"[S]tanding [is] a component of subject matter jurisdiction that may be raised for the first time on appeal." Stechschulte v. Jennings , 297 Kan. 2, 29, 298 P.3d 1083 (2013). Further, "question[s] of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court." Albright v. State , 292 Kan. 193, Syl. ¶ 3, 251 P.3d 52 (2011). Thus, this court may properly consider whether Champion had standing to bring this foreclosure suit and, therefore, whether the Pawnee County District Court had subject matter jurisdiction over this suit. "The question of standing is one of law over which this court's scope of review is unlimited." Gannon v. State , 298 Kan. 1107, 1122, 319 P.3d 1196 (2014).

Champion erroneously contends that this court cannot reach any of Roy's issues on the merits. Accordingly, Champion did not argue this issue. Roy's briefing on this issue is confusing and unclear.

Seemingly, Roy argues that MERS was not an "agent or nominee of any lender" and, therefore, did not have the authority to assign the mortgage to Champion. Thus, Roy argues Champion has no right to enforce the note and no right to bring a foreclosure suit. Roy apparently quotes Landmark Nat'l Bank v. Kesler , 289 Kan. 528, 216 P.3d 158 (2009), for the proposition that "MERS is not a real party, and has no rights to title." This quote, however, does not appear anywhere in our Supreme Court's decision in Kesler . Further, our Supreme Court in Kesler did not decide whether MERS could ever have standing to bring a foreclosure suit. Rather, it decided that a district court did not abuse its discretion by finding that MERS, which was named in the particular mortgage document " 'solely as nominee for Lender, as hereinafter defined, and Lender's successors and assigns' " was not a contingently necessary party in a foreclosure. 289 Kan. at 530, 542.

In Kesler , our Supreme Court did caution that "in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable." 289 Kan. at 540. It seems that Roy may be arguing that such is the case here.

Nevertheless, nothing in the record here suggests that in this case the mortgage note and deed of trust were separated. "The burden to establish standing rests with the party asserting it." FV-I, Inc. v. Kallevig , 306 Kan. 204, 211, 392 P.3d 1248 (2017). To establish standing, a foreclosing plaintiff must show "(1) that the note was made payable to [the foreclosing plaintiff] or was endorsed in blank and (2) [the foreclosing plaintiff] was in possession of the note" when it filed the foreclosure suit. 306 Kan. at 215. Here, Champion attached to its petition the mortgage documents, mortgage note, and the chain of recorded assignments of the mortgage from the Urban Financial Group to the Seattle Mortgage Company on June 12, 2007, from the Seattle Mortgage Company to MERS on November 13, 2007, and from MERS to Champion on November 27, 2012.

Roy does not contest the veracity of these documents. Instead, he seems to suggest that MERS is a "strawman" with "no legal authority to assign the instant [m]ortgage." The record shows this is not true. The Seattle Mortgage Company assigned MERS "all beneficial interest under" the mortgage, "together with the note or notes therein described or referred to, the money due and to become due thereon with interest and all rights accrued or to accrue under said mortgage." MERS then assigned Champion "all its right, title, and interest to" the mortgage. Further, Champion attached to its foreclosure petition a copy of the note and the recorded chain of assignments.

When it moved for summary judgment, Champion argued that it was "in possession of the note" and was the "assignee of record of the [m]ortgage." Champion again attached the recorded assignments and mortgage note to its motion for summary judgment, as well as an affidavit from an assistant vice president of Champion who swore that Champion "was in possession of the Note at the time of filing this action and at all times thereafter" and that she personally was "aware of the physical location of the original Note."

Accordingly, this court concludes that Champion has satisfied its burden to establish standing by showing that it was in physical possession of the note and that the recorded assignments provided that it held all "right, title, and interest to" the mortgage. Roy's arguments on this issue fail.

Did the Trial Court Violate Roy's Fourteenth Amendment Due Process Rights By Failing to Give Notice of Its Orders?

As discussed earlier, this court only has jurisdiction over issues arising from the February 8, 2018 order, and the October 2, 2018 order. Roy's issue II does not arise from either the February 8, 2018 order or the October 2, 2018 order. According to Roy, this issue arises from orders issued "in May and September of 2017." Accordingly, this court does not have jurisdiction over this issue. See Hess , 254 Kan. at 718.

Did the Trial Court Violate Roy's Fourteenth Amendment Due Process Rights By Denying His Request to Participate in a Pretrial Conference by Telephone?

As discussed above, this court only has jurisdiction over issues arising from the February 8, 2018 order and the October 2, 2018 order. Roy's issue II does not arise from either the February 8, 2018 order or the October 2, 2018 order. Instead, it deals with decisions from April and May 2017. Accordingly, this court does not have jurisdiction over this issue. See Hess , 254 Kan. at 718.

Did the Trial Court Lack Jurisdiction Over This Case Because the Foreclosure Claim Was Prematurely Filed?

This court cannot reach this issue on the merits because Roy failed to argue the issue. Under this issue, Roy wrote the following:

"Standard of review, de novo .
"In the case of Reverse mortgage Solutions Inc, v Enlow, (kan App 2018), this Court held that 24 CFR 206.125 was an affirmative defense that needed to be asserted by the Defendant in Their answer. Under the timeline of 24 CFR the estate/heirs, have an initial Six Month period (from time of death) to try to purchase, sell or refinance the property. In the answer of Appellant, (and his attempted amended answer) his 'Sixth affirmative defense' asserts a 24 CFR 206.125 Federal defense to the petition of appellee. Vol. I, p. 212."

Roy does not explain what this affirmative defense is or how his alleged assertion of this defense affects Champion's standing. Issues raised only incidentally in a brief or otherwise inadequately briefed are deemed waived and abandoned. In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018) ; Russell , 306 Kan. at 1089.

Affirmed in part and dismissed in part.