text:
    Jaylene LAMBERT, Individually, and as Administrator of the Estate of Stan Novak, Appellants, v. John E. PETERSON, M.D., Burrel C. Gaddy Jr., M.D., Ahmed Baig, M.D., Jeffrey Bissing, D.O., Christopher Welch, P.A., Erik Westlake, C.R.N.A., Michael Manalo, M.D., Ken Norton, M.D., HealthSouth MidAmerica Rehabilitation Hospital, Shawnee Mission Medical Center, and Mary Burch, Ph.D., Appellees.
    No. 117,344
    Supreme Court of Kansas.
    Opinion filed April 19, 2019.
    Jean Ann Uvodich, of Olathe, argued the cause and was on the brief for appellant.
    Jeff K. Brown, of Logan Logan & Watson, L.C., of Prairie Village, argued the cause and was on the brief for appellees Erik Westlake, Michael Manalo, and Ken Norton.
    Brent G. Wright and Justin Fowler, of Horn Aylward & Bandy, L.L.C., of Kansas City, Missouri, were on the brief for appellee Ahmed Baig.
    Christopher J. Lucas and Bruce Keplinger, of Norris & Keplinger, L.L.C., of Overland Park, were on the brief for appellee Shawnee Mission Medical Center.
    Stephanie A. Preut and Brian J. Niceswanger, of Evans & Dixon, L.L.C., of Overland Park, were on the brief for appellee John E. Peterson.
    Casey L. Walker and Janet M. Simpson, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park, were on the brief for appellees Burrel C. Gaddy Jr. and Christopher Welch.
   The opinion of the court was delivered by Luckert, J.:

Jaylene Lambert, individually and as administrator of the estate of Stan Novak, asks us to reverse a district court order granting the defendants' motions to dismiss. The district court found her petition was filed one day after the statute of limitations had expired. She argues the statute of limitations does not act as a bar because her attorney electronically submitted her petition for filing before the statute of limitations ran and promptly responded when the clerk returned it because of an electronic filing issue. She asks us to determine whether a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system or when the clerk of the district court accepts and file stamps it.

We cannot reach the substance of Lambert's argument, however, because no evidence in the record supports Lambert's factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk. And without this evidence there is no factual support for her argument. She has thus failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings. See K.S.A. 2018 Supp. 60-212(d) ; K.S.A. 2018 Supp. 60-256.

FACTS AND PROCEDURAL HISTORY

Novak died on June 22, 2014. Lambert filed her petition on June 23, 2016, according to the file stamp placed on Lambert's petition by the Wyandotte District Court Clerk. The defendants were medical providers and facilities Lambert alleged committed negligence and medical malpractice that caused Novak's wrongful death.

Each defendant who appeared (some named defendants had not been served and some challenged whether they had been properly served) moved to dismiss for failure to state a claim under K.S.A. 2018 Supp. 60-212(b)(6). Some of these defendants made multiple arguments, but all sought dismissal because Lambert's cause of action was barred by the statute of limitations. In making this argument, the defendants relied on the pleadings. They pointed to the date file stamped on the petition and the date of Novak's death. The motions then argued the petition was filed one day after the two-year limitations period expired.

The earliest filed motions were set for hearing. It is undisputed that notice of the hearing was provided in the Wyandotte Echo in accordance with local rules. Lambert failed to appear, and the district court granted the five defendants' motions.

Lambert subsequently filed a "Response to Defendants Motions to Dismiss as It Relates to the Timing of the Filing of the Action." Lambert's counsel made various unsupported factual assertions in the response. She claimed to have electronically filed the petition on June 22, 2016. She indicated the clerk's office rejected the original June 22 submission. Counsel represented that the clerk's office informed her she needed to refile the petition without listing the estate as a plaintiff in the e-filing system. Counsel stated that she followed those directions, and the clerk's office accepted the filing on June 24 and file stamped it to reflect the time on June 23 that the petition was uploaded to the e-filing system for the second time. Counsel asserted she had made no changes to the document between the first and second filings and she had correctly submitted payment on June 22. Thus, Lambert argues, the filing date should be June 22.

Lambert did not support her response with documentation, an affidavit, or a declaration. Nor did she cite any authority to support the use of the earlier filing date. The only legal citation in Lambert's district court response was "K.S.A. 60-206A1(a)."

The district court held a second hearing on defendants' motions-the five that had been heard before and additional ones that had not been previously heard. Those defendants who prevailed at the first hearing argued Lambert was bound by the earlier ruling. In addition, these and the other defendants who appeared argued the limitations period had expired because the petition was filed more than two years after Novak's death.

Lambert responded with an oral argument in which her counsel again stated she had filed the petition on June 22, 2016, which was within the limitations period. Counsel did not seek to submit an affidavit or a declaration. And she presented no testimony, although she advised the court her client was present and available to testify "if the court so requires." Through counsel's argument, she informed the court someone in the clerk's office told her the estate was a duplicate plaintiff and the clerk's office would not accept the filing unless counsel deleted any reference to the estate in the data entry field where plaintiffs are listed. Counsel did not learn of the problem or have an opportunity to cure the defect on June 22. But the next day counsel filed the petition without listing the estate in the data field, and the clerk accepted that filing.

Lambert's counsel also submitted five exhibits that the court admitted for purposes of the hearing. Exhibit 1 was relevant to an argument Lambert presented to the district court but has not argued to this court. Exhibits 2 through 5 are communications from the e-filing system. Exhibit 2 shows the court received a medical malpractice petition from Lambert's counsel on June 22, 2016, time stamped 11:56:22.0. Exhibit 3 states the clerk rejected the filing because, "The parties on the petition do not coincide with the parties uploaded into the Court record; the petition and parties you are uploading need to match." Exhibit 4 shows the district court received a medical malpractice petition on June 23, 2016, filed by Lambert's counsel. And Exhibit 5 shows the clerk accepted the petition referenced in Exhibit 4 on June 24. None of the exhibits identify the caption of the action or provide any case-specific information other than referring to a medical malpractice petition.

After hearing counsel's arguments, the district court ruled from the bench. The court found that the applicable statute of limitations required the petition to be filed on or before June 22, 2016. The court also found that Lambert failed to meet that time requirement and her action was barred. The court pointed out that Lambert had presented no legal support for her argument. It also noted:

"The statute of limitation is clear it is not discretionary with the Court. I don't know of any means by which the Court has the ability to extend a statute of limitations. There are times that may not be equitable, it may not be fair, but there is a specific and definite time frame by which the statutes prescribe and case must be filed. I'm not aware, nor has counsel cited any exception for when a case is efiled and perhaps there was a glitch and it was not filed on the date it was attempted to be filed. Again, that is not something within the Court's discretion to overlook or extend the statute of limitations."

In the written Journal Entry of Judgment, the district court emphasized: "Even considering [the plaintiff's] response, plaintiff presented no factual information , statutory authority or legal precedence which would permit extending the statute of limitations." (Emphasis added.) The district court declined to address others grounds for dismissal because the statute of limitations defense was dispositive.

Lambert filed a timely notice of appeal. On our own motion we transferred the appeal to our docket. We have jurisdiction under K.S.A. 20-3018(c).

ANALYSIS

Before us, Lambert does not dispute the district court's finding that Lambert's cause of action was barred if the filing date was June 23, 2016. See K.S.A. 60-513(a)(4), (a)(5), (a)(7) (setting two-year statute of limitations period for actions involving injury to others, wrongful death, and medical malpractice); LCL v. Falen , 308 Kan. 573, 582, 422 P.3d 1166 (2018) (recognizing negligence claims have two-year limitation period). The district court used the date of death, June 22, 2014. Lambert makes no argument to this court that any other day should begin the running of the limitations period or that she is entitled to any exception that might extend the period. Nor does she dispute the district court's factual finding that the official court record reflects a filing date of June 23, 2016. Because of Lambert's failure to brief or assert any of these arguments before us, she has waived or abandoned them. See State v. Gonzalez , 307 Kan. 575, 592, 412 P.3d 968 (2018).

Instead, Lambert reasserts the arguments she made to the district court and contends the official court record should reflect she filed her petition on June 22, 2016. Her argument depends on facts not found in her petition. Certainly, a party responding to a motion to dismiss can go outside the pleadings to raise facts supporting the party's response to the motion. See K.S.A. 2018 Supp. 60-212(d). But to do so, the party must follow prescribed procedures. Specifically, "the motion must be treated as one of summary judgment under K.S.A. 60-256." K.S.A. 2018 Supp. 60-212(d). And under the summary judgment procedure a party may "not rely merely on allegations or denials in its own pleading." K.S.A. 2018 Supp. 60-256(e)(2). Instead, Lambert (or any other party responding to a motion to dismiss) must, "by affidavits or by declarations pursuant to K.S.A. 53-601... or as otherwise provided in this section, set out specific facts showing a genuine issue for trial." K.S.A. 2018 Supp. 60-256(e)(2). The alternatives "otherwise provided" include "the discovery and disclosure materials on file." K.S.A. 2018 Supp. 60-256(c)(2).

Taking these steps of setting out facts and citing support are necessary if " 'an adverse party must come forward with evidence to establish a dispute as to a material fact.' " Manley v. Hallbauer , 308 Kan. 723, 725, 423 P.3d 480 (2018) (quoting Drouhard-Nordhus v. Rosenquist , 301 Kan. 618, 622, 345 P.3d 281 [ (2015) ] ); see Thoroughbred Assocs. v. Kansas City Royalty Co ., 297 Kan. 1193, 1214, 308 P.3d 1238 (2013) (holding district court appropriately granted summary judgment when record did not include facts necessary to support an argument); Supreme Court Rule 141(b)(1)(C) (2019 Kan. S. Ct. R. 211) (when responding to motion by adding material facts parties must "concisely summarize" the evidence and "provide precise references" to the portion of the record supporting the contention of fact). And, here, proof that counsel had filed the same petition on June 22, 2016, was a material fact and needed to be established for Lambert's argument to succeed. See Drouhard-Nordhus , 301 Kan. 618, 345 P.3d 281 (affirming summary judgment when material facts not established for a necessary element).

Through her response and the hearing, Lambert had the opportunity to present the necessary evidence. See K.S.A. 2018 Supp. 60-212(d) ("All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."); Sperry v. McKune , 305 Kan. 469, 481, 384 P.3d 1003 (2016). And counsel presumably could have done so. Kansas Supreme Court Administrative Order No. 268, titled "Re: Technical Standards Governing Electronic Filing and Transmission of Court Documents," states in section J.: "A person filing or transmitting court documents electronically shall retain, in his or her possession or control, a record of the transmission from which a full copy of the document can be made during the pendency of the action." The retention requirement makes clear it includes "all documents filed with the court and any other electronic communication related to the action." While Lambert presented communications, she did not present the documents. And, at least in part, this provision is designed to establish the contents of documents such as those asserted to have been filed here.

Instead, Lambert's counsel merely offered to have Lambert testify "if the court so requires." But the court appropriately left to counsel the determination of how to support her contentions. And counsel called no witnesses (assuming that would have been appropriate at a summary judgment hearing). Counsel did not present her own or a clerk's office representative's affidavit or declaration tying the petition submitted on June 23 to the petition counsel tried to file on June 22, 2016. And she did not seek any stipulations to the facts she asserted. She did admit exhibits. But none of these provide evidence the pleading counsel tried to file earlier involved an action by Lambert making the same allegations against the same defendants; there is only generic mention of the cause of action alleged in the first petition being medical malpractice.

We thus have only Lambert's counsel's argument that the file-stamped petition is the same as the one she tried to file on June 22. Certainly we have no reason to question the accuracy of counsel's representations, and the exhibits verify the timeline she sets out in her arguments. But arguments of counsel are not evidence. See Bullock v. BNSF Railway Co. , 306 Kan. 916, 933, 399 P.3d 148 (2017) ("[C]ounsel's remarks are not evidence."); see also State v. Bennington , 293 Kan. 503, 530, 264 P.3d 440 (2011). The same is true whether at trial or responding to a motion to dismiss that makes it necessary to present affirmative evidence and not mere allegations. See Johannes v. Idol , 39 Kan. App. 2d 595, 606, 181 P.3d 574 (2008). Neither K.S.A. 2018 Supp. 60-256, K.S.A. 2018 Supp. 60-212, nor Supreme Court Rule 141 mentions arguments or representations of counsel. Instead, the responding party must present facts in the manner prescribed.

Thus, even drawing all reasonable inferences in Lambert's favor, all we can conclude based on the factual record is that her lawyer filed a medical malpractice action on June 22, 2016. See Manley , 308 Kan. at 725, 423 P.3d 480 (stating standard for summary judgment, including requirement that inferences be drawn in favor of the party against whom the ruling is sought). We cannot make the critical link between the exhibit showing an attempt to file a medical malpractice action and the particular medical malpractice action filed by Lambert without some affidavit, declaration, or testimony by a competent affiant, declarant, or witness based on his or her personal knowledge setting forth facts that would be admissible into evidence. See K.S.A. 2018 Supp. 60-256(e).

Lamberts failure to present evidence to the district court means she has failed to preserve the legal issue. It also means the district court correctly determined Lambert "presented no factual information ... which would permit extending the statute of limitations."

CONCLUSION

Lambert failed to meet her burden in responding to the motions to dismiss when she failed to submit an affidavit, declaration, or other material permitted under K.S.A. 2018 Supp. 60-256 providing evidence that Lambert was the plaintiff, that some or all the movants were the defendants sued in the petition submitted on June 22, and that the causes of action were the same or related to those in the petition submitted and file stamped on June 23. The district court lacked evidence of the factual predicate on which Lambert's argument is based and therefore appropriately granted the defendants' motions to dismiss.

Affirmed.


source: Caselaw Access Project

author: Hill, J.:

license: Public Domain

text:
    B.O.A., a Minor, BY AND THROUGH L.O., Next Friend, Appellee, v. U.S.D. 480 BOARD OF EDUCATION, Appellant.
    No. 119,773
    Court of Appeals of Kansas.
    Opinion filed March 15, 2019.
    Lane L. Frymire and Richard R. Yoxall, of Yoxall, Antrim, Foreman & Frymire, LLP, of Liberal, for appellant.
    Kelly Premer Chavez, of Tahirkheli & Premer-Chavez Law Office, LLC, of Liberal, for appellee.
    Before Gardner, P.J., Hill and Schroeder, JJ.
   Hill, J.:

Good government requires political and taxing subdivisions to give reasons for imposing penalties such as expulsion from public schools. In this appeal of a student's expulsion, the U.S.D. 480 Board of Education failed to give any reason why it increased the length of that student's expulsion to the statutory maximum when it reviewed the decision of the school superintendent. When the student appealed to the district court, it held that the Board's action of increasing the length of this student's expulsion was arbitrary, capricious, and unreasonable. The court then modified the Board's order by reducing the term of the student's expulsion to the length suggested by the superintendent of schools. Finding no error, we affirm.

To aid the understanding of the facts, we offer a brief outline of the procedures used to expel this public school student. Review of this expulsion extended through several layers. First, the student's school principal made her recommendation. This was followed by a formal hearing before a school district hearing officer. After that, the school district superintendent reviewed the matter. And, finally, the Board of Education reviewed the superintendent's findings and recommendations and considered whether to expel the student and if so, for how long. This student, aggrieved by this process, sought review of the school district's actions by the district court under K.S.A. 60-2101(d). Here is what happened.

A middle school reacted to threats posted on social media.

In January 2018, a student at the Eisenhower Middle School in U.S.D. 480 alerted Principal Randi Jones that posts on social media were threatening a school shooting. Screen shots of the posted threats showed that the shooting was to occur on Wednesday, January 17.

School officials reported the threats to the Liberal Police Department for investigation. The police investigation determined that B.O.A. was responsible for posting at least one of the threats. B.O.A. was enrolled as a seventh grader at the school. He acknowledged to the police that one of the threatening posts was his by placing a checkmark by it and writing his name. That post stated, "Lets [sic ] start a school shooting starting with EMS."

When she learned that the police believed B.O.A. was responsible for one of the threats, Principal Jones told him and his mother that she had placed him on an immediate 10-day school suspension. Later, while suspended from school, B.O.A. wrote a letter of apology to the principal and the school district. In it he stated that he intended the post as a joke, but that it went too far. He asked for forgiveness and the opportunity to continue going to school.

The principal then notified the student and his parents that she proposed a 186-day expulsion for B.O.A. This notice alleged that his conduct violated several statutory provisions which called for his expulsion. The notice also told him that he was entitled to a formal hearing. B.O.A. requested a formal hearing.

His formal hearing was held by Michael Stovall, Director of District Systems for the school district. At the hearing, Principal Jones, the assistant principal, B.O.A., and his parents attended. Both of B.O.A.'s parents spoke. They both acknowledged "he did do wrong," but that he was a good kid who behaves at home, and was otherwise responsible. They described his general demeanor as shy, and stated he lacked self-esteem and was easily influenced by others. They asked for another opportunity for their son.

Hearing Officer Stovall spoke to B.O.A. and told him that school districts cannot take such threats as "just a prank," and told him that his actions caused disruption within the school district. Stovall went on to say that by "typing that" on his phone, B.O.A. showed he did not understand the consequences of his actions.

The hearing officer found that B.O.A.'s conduct met four specified statutory criteria to justify his expulsion and ordered his expulsion for 186 school days. This is the maximum expulsion allowed by statute. See K.S.A. 72-6115(a). Basically, his decision affirmed what the principal had suggested. Stovall told B.O.A. and his parents that he could file a written appeal with school superintendent Renae Hickert. They did so.

When Superintendent Hickert convened the expulsion appeal hearing, she received several exhibits and heard testimony from Principal Jones, Hearing Officer Stovall, some law enforcement officers, another student, a parent of other students, and B.O.A.'s mother. In her decision, Hickert made 18 detailed findings of fact about the time line of events, as well as findings related to the police investigation and the effects this had on the schools.

In her decision, Hickert found that:

• B.O.A. admitted he made some threats against the middle school on social media;
• he identified one threat in particular by a checkmark and writing his name next to it;
• he had written an apology letter asking for forgiveness for his conduct, and the timing and context of his letter showed the conduct for which he apologized was the posted threat against the school;
• the police investigation determined that B.O.A. posted some threats on social media;
• Principal Jones' testimony at the hearing showed that the social media threats disrupted and interfered with the school because school resources were diverted from normal operations to attend to concerns of students, faculty, and staff, and to assist law enforcement in the investigation;
• Jones suggested that nearly half of the student body was absent on the day the threatened shooting was to take place because concerned parents kept their children from school that day;
• B.O.A. and his parents acknowledged and admitted-in the context of Stovall's hearing-that he made the threats;
• Stovall testified that B.O.A.'s conduct violated the middle school student code of conduct, and that the threats met several categories of conduct prohibited by statute which warranted expulsion; and
• law enforcement officials determined that the threats were criminal and would constitute a felony if committed by an adult.

Finally, Hickert specified the statutory categories of conduct that could warrant expulsion. Basically, she ruled that four grounds that allow a school district to expel a public school student were proved here. See K.S.A. 72-6114(a) - (d). She found that witness testimony-including B.O.A.'s testimony-established that he violated a published student code of conduct when he made threats of a school shooting on social media that targeted the middle school. Hickert found that this act of making the threats substantially disrupted, impeded, and interfered with the operation of the school, and endangered the safety of others or substantially impinged upon or invaded the rights of others at the school. She also found that B.O.A.'s threats would constitute a felony if committed by an adult. Based on these findings, she recommended that he should be expelled from the middle school and U.S.D. 480 for the remainder of the 2017-2018 school year, and be allowed to return at the beginning of the fall semester for the 2018-2019 school year. The issue then went on to the Board of Education.

At the Board's next regular meeting, neither B.O.A. nor his parents attended. After first considering the matter in executive session with its counsel, the Board found that further hearing on the matter was unnecessary. It adopted Superintendent Hickert's 18 findings. But, contrary to her recommendation, the Board expelled B.O.A. for 186 school days, beginning January 29, 2018.

The parties come to court.

In his appeal to the district court, B.O.A. alleged U.S.D. 480 violated his due process rights by not allowing him and his parents to attend the board meeting when his fate was decided and deciding the matter in executive session with the Board's lawyer. He also appealed the determinations that he violated a published regulation for student conduct, endangered the safety or rights of others, and substantially disrupted or interfered with the operation of the school. He argued that he had not been convicted of a felony and claimed that the Board did not follow the law by failing to adopt Hickert's recommendation that he be allowed to return to school for the 2018-2019 school year.

The Board argued that it acted within the law and had the statutory authority to expel B.O.A. The Board contended there was substantial evidence to support its decision to expel him and adopt Hickert's findings. In its view, there was no evidence to show it acted fraudulently, arbitrarily, or capriciously in expelling B.O.A.

After reviewing all the evidence from the prior proceedings, the district court was unable to learn the exact nature of B.O.A.'s involvement in making the threats. But the court still found there was "no doubt B.O.A. had some level of involvement regarding the electronic statements," and speculated he allowed a friend to use his device to transmit the threats. The court observed that Hickert-after hearing all the evidence-found it appropriate to expel him through the end of the school year.

The court agreed that the Board's decision was arbitrary and capricious, and granted B.O.A. the relief he requested-limiting his expulsion to the spring of 2018 and allowing him to return to school in the fall of 2018. While doing so, the court declined to rule on his due process argument.

The Board appealed, arguing the court substituted its judgment for the Board's. B.O.A., however, did not cross-appeal. We note that under K.S.A. 2017 Supp. 60-2103(h), an appellee must file a notice of cross-appeal from adverse rulings to obtain appellate review of those issues. See Lumry v. State , 305 Kan. 545, 553-54, 385 P.3d 479 (2016). Thus, we will not consider B.O.A.'s due process claims because we are without jurisdiction to consider them.

This is an appeal by a taxing subdivision of state government.

To us, the Board argues that the district court disregarded B.O.A.'s admission of making the social media statement. It reweighed the evidence and substituted its judgment for that of the Board when it modified B.O.A.'s term of expulsion. The Board contends that the district court did not determine whether the Board's findings were substantially supported by the evidence. The Board also contends that its decision to expel him was supported by substantial evidence, and thus was not arbitrary or capricious. We note, however, the Board's findings of fact are not in dispute, and the district court affirmed the Board's decision to expel B.O.A.

The district court had jurisdiction to review and modify the Board's decision under K.S.A. 60-2101(d). When an appeal is taken under this statute, the district court may not substitute its judgment for that of the political or taxing subdivision or agency and the court's scope of review is limited to deciding whether:

• The Board's decision was within the scope of its authority;
• its decision was substantially supported by the evidence; and
• it did not act fraudulently, arbitrarily, or capriciously.

See Denning v. Johnson County Sheriff's Civil Service Bd. , 299 Kan. 1070, 1075, 329 P.3d 440 (2014).

We review the district court's ruling.

The district court here did not conclude that the Board's decision to expel B.O.A. was outside the scope of its authority, but found that the Board's decision to expel him for the maximum period allowed by law-186 school days-was unsupported by its adopted findings of fact and the record as a whole, and was therefore arbitrary and capricious. See K.S.A. 72-6115(a). Essentially, the district court found the Board acted arbitrarily and capriciously when it adopted all of Hickert's factual findings, but without further hearing or explanation, ignored her recommendation to limit B.O.A.'s expulsion to the remainder of the school year.

To dispute an expulsion, a student must appeal the school board's decision to the district court under K.S.A. 60-2101(d) : "A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal." (Emphasis added.) Here, having found that the evidence and factual findings did not support the maximum term of expulsion, the district court modified the Board's decision by limiting the period of expulsion to the current school term.

An appellate court exercises the same statutorily limited review of the agency's action as the district court. It is as though the appeal had been made directly to the appellate court. Carlson Auction Service, Inc. v. Kansas Corporation Comm'n , 55 Kan. App. 2d 345, 349, 413 P.3d 448 (2018). Thus, we must determine whether the Board's decision on the length of B.O.A.'s expulsion was supported by the evidence or, given the record as a whole, was arbitrary and capricious. See Butler v. U.S.D. No. 440 , 244 Kan. 458, 463, 769 P.2d 651 (1989).

The Board, in its brief, does not address the district court's actual finding that imposing the maximum term of expulsion given all the evidence in the case was arbitrary and capricious. Issues not adequately briefed are considered waived or abandoned. In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018). A point raised incidentally in a brief and not argued therein is also considered abandoned. Russell v. May , 306 Kan. 1058, 1089, 400 P.3d 647 (2017).

While the district court found substantial evidence to support expulsion, it found other evidence detracted from imposing the statutory maximum term of that expulsion:

"While it is easy to sympathize with the Board in their attempt to send a tough message to those who may be engaged in this type of conduct, there is simply nothing in the fact pattern of this case which substantiates the harshest penalty being imposed. Ms. Hickert, who heard all the testimony live, obviously reached the conclusion that while B.O.A. had some involvement, his culpability did not support the most severe sanction. The Board, armed with no additional evidence, in effect doubled the punishment invoked by Ms. Hickert. The Court can find absolutely no justification in the record for that determination and, therefore, finds the same to be unreasonable and without foundation in fact."

The judge was concerned about the total lack of reasoning offered by the Board. A court, when reviewing an agency decision, cannot read minds.

Because we review the same record, we share a similar concern. We have no doubt that B.O.A. made a threat against the middle school on social media. Indeed, he does not argue on appeal that his expulsion should be reversed. Instead, he contends only that the district court was right to modify his term of expulsion by reducing it from the statutory maximum set by the Board.

Indeed, the record reveals facts that detract from the Board's maximum imposed term. B.O.A.'s post was made in the context of other posts that supported his claim that it was a joke that went too far. He accepted responsibility for posting the threat, and asked for forgiveness and the opportunity to return to school. The police investigation discovered B.O.A. could not carry out his threat.

Simply put, the trouble with the Board's position is that it fails to offer any explanation in the record why it imposed the maximum period of expulsion instead of following Superintendent Hickert's recommendation. After the Board came out of executive session it gave no reasons why it increased the period of expulsion.

This meant that there was no administrative record for the district court to work with in trying to decide the reasonableness of the Board's decision. We, too, have no record to review on this point. The district court, seizing on Hickert's well-reasoned and well-supported work, ruled that the shorter period of expulsion was reasonable. We cannot say that was erroneous.

The district court confirmed that the parties were arguing over the term of B.O.A.'s expulsion, not the expulsion itself. The court then reviewed all the evidence in the context of the record as a whole and determined that the term of expulsion was unsupported by the Board's findings. This was not a mere substitution of the district court's judgment for that of the Board. The district court appropriately reviewed the record in its full context and decided that the Board increased B.O.A.'s expulsion without giving a reason. When a government agency or subdivision acts without explanation, it acts arbitrarily.

The district court acted within its scope of review and is affirmed.


author: Powell, J.:

text:
    In the MATTER OF the MARRIAGE OF Dana TOWLE, Appellant, and Louise LÈGARÈ, Appellee.
    (Mathieu Bonin, Substitute Appellee.)
    No. 119,021
    Court of Appeals of Kansas.
    Opinion filed March 15, 2019.
    Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and Stephanie L. Schutt, of Ritchie & Soper PC, of Liberty, Missouri, for appellant.
    Amanda B. Kivett, of The Kivett Law Firm, LLC, of Kansas City, Missouri, for appellee and substitute appellee.
    Before Buser, P.J., Powell, J., and Stutzman, S.J.
   Powell, J.:

Dana Raymond Towle petitioned the Wyandotte County District Court for separate maintenance (more commonly known as a legal separation) from his wife, Louise LèGarè. After the case had been pending for several months, Louise was diagnosed with terminal cancer. Ultimately, the parties were apparently able to reach a property settlement agreement that was placed on the record and approved by the district court. The court, anticipating Louise's pending demise, filled out and signed a docket sheet approving the parties' property settlement agreement and directed Louise's counsel to prepare the journal entry. Unfortunately, several months passed and Louise died without her counsel having filed the journal entry. Dana then sought dismissal of the case on the grounds that Louise's death had abated the action and divested the court of jurisdiction. The district court denied Dana's motion to dismiss and substituted Louise's son, Mathieu Bonin, for Louise even though he was not the executor of Louise's estate. It ordered Mathieu, now represented by Louise's counsel, to submit a journal entry within 72 hours. Several more months went by without the journal entry being filed. Instead of filing a journal entry, Mathieu sought enforcement of the property settlement agreement, claiming Dana had breached it. The district court found that the parties had sufficiently memorialized their agreement and granted Mathieu's motion.

On appeal, Dana principally claims the district court erred by not dismissing the case as the action abated at the time of Louise's death. As a matter of first impression and for reasons more fully explained below, we agree with Dana that his petition for separate maintenance is a personal one which abated upon Louise's death. Because the journal entry memorializing the parties' property settlement agreement had not been approved by the district court and filed with the clerk prior to Louise's death, the district court erred in not dismissing the case. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background of the Parties

Dana and Louise were married in Missouri in the late 1980s. Louise was originally from Montreal, Quebec, where her son from a previous relationship, Mathieu, resides. During the marriage, the parties accumulated significant assets including real estate in Kansas, Missouri, and Quebec and surgical centers as part of Dana's medical profession in Kansas. No children were born of the marriage.

B. Initiation of the Separate Maintenance Action and Dana's Voluntary Dismissal

In November 2015, Dana filed a petition for separate maintenance in Wyandotte County District Court, alleging he was a resident of Edwardsville, Kansas. Louise filed an answer, admitting she had lived in Edwardsville for 90 days but denying that Dana had resided there. Louise asserted no counterclaims in her answer.

In May 2016, Dana and Louise agreed to a temporary order, which the district court approved, allowing the parties to live separately during the action. Among other provisions, the order provided that Dana would continue to pay Louise's living expenses, Louise would continue to possess the parties' Edwardsville residence, and no party would be dispossessed of any property without a joint written agreement or court approval. Thereafter, the parties worked with a certified public accountant, financial mediator, and valuation analyst to develop a comprehensive valuation and division of the parties' assets and debts. As of October 2016, the parties were able to develop a comprehensive list of their assets and debts, along with their agreed values. This understanding was memorialized in a one-page document known as Exhibit 101.

In June 2016, Louise was diagnosed with stage 4 metastatic lung cancer. Although Dana learned of Louise's illness in August 2016, Louise did not inform Dana of the details surrounding the diagnosis until October 2016.

On October 26, 2016, Dana's counsel filed a motion to dismiss his petition for separate maintenance without prejudice and attached a proposed order. However, because the order's title included the word "proposed," the district court clerk rejected the filing and directed Dana's counsel to correct it. The next day, Dana's counsel refiled the now correctly titled order but failed to refile the motion. Dana's counsel later told the district court that the clerk's staff only told him to refile the proposed order and not the motion itself. As the district judge stated, "[E]ither [Dana's counsel] misunderstood the instruction or [was] given the wrong instruction, whichever way, but ... there was no motion [to dismiss] filed." No such motion to dismiss appears in the record on appeal. Louise's counsel stated that she never received notice of such a motion.

Nevertheless, it appears there was such a motion before the district court at some point because on October 27, 2016, it granted Dana's motion to dismiss without prejudice and, on October 31, 2016, the district judge signed a docket entry dismissing the case. Louise's counsel admitted that these two orders were entered into the e-filing system and served on Louise; her counsel later claimed that she believed the matter was dismissed in error. After dismissal of this case, Dana filed for divorce in Jackson County, Missouri.

C. Setting Aside the Dismissal and Louise Filing a Counterpetition

On March 2, 2017-122 days after the apparent dismissal of the case-Louise sought to set aside the dismissal order under K.S.A. 2016 Supp. 60-260(b). She argued the order violated K.S.A. 2016 Supp. 60-241(a) and K.S.A. 2016 Supp. 60-207(b) because Dana had not formally filed a motion to dismiss. Louise asserted that the order had to be set aside as the result of surprise, excusable neglect, misrepresentation, or misconduct by an opposing party and that Dana's dismissal was a ruse to unjustly enrich himself.

"[Dana] misrepresented his intentions to [Louise] knowing that [her] medical condition prevents [her] from easily participating in the litigation process, knowing that a delay in the entry of the final division of assets herein and [Louise's] untimely death would allow [Dana] to receive all of the parties' assets herein thereby unjustly enriching [him], and knowing that due to the advanced nature of [Louise's] terminal cancer [she] cannot file a new Petition and wait the statutorily required time for entry of a Decree. ... It is in the interest of substantial justice that this Court set aside its Dismissal Order entered herein as it is necessary for [Louise] to complete the division of the parties' assets and return to her son prior to her death and as without this Court setting aside its Dismissal Petitioner shall be unjustly enriched by his misrepresentations to [Louise] and the Court."

In support of her assertions, Louise attached to her motion a three-week-old letter from her physician, which attested to her condition and stated she "desire[d] to return to her family and home in Montreal, Canada for her remaining months of life" and "it is of the most urgent necessity that she gets her divorce settled so that she has funds to move, get medical care, and live with her family that can support and care for her." Dana opposed Louise's request to set aside the dismissal. Although he denied many of her allegations, he did admit that the motion to dismiss was not correctly filed. Before the district court heard arguments on Louise's motion to set aside the dismissal, and without leave of the court, on March 6, 2017, Louise filed what her counsel entitled as a "Counter Petition for Legal Separation."

After hearing arguments on March 27, 2017, concerning Louise's motion to set aside the order of dismissal, the district court found that because Dana had not properly filed a motion to dismiss, it did not have the authority to grant Dana's motion of voluntary dismissal under K.S.A. 2016 Supp. 60-241. Dana then made an oral motion to dismiss the action. In response, Louise argued Dana could not now voluntarily dismiss the action because she had filed a "counterpetition." Dana responded that Louise's counterclaim was out of time and she would need leave of the district court to amend her answer, which she had not done. Louise argued that her "counterpetition" was timely without leave; Dana refuted this assertion, arguing that a counterclaim could be filed only in an answer to the original petition, which at this point was now several years after the initial November 2015 filing. Thus, Louise was out of time to amend her answer without leave of the court.

Nevertheless, the district court, sua sponte, asked Louise, "[A]ssuming the requirement would be 21 days after the petition, what would your arguments be ... as far as being given the opportunity to file your counterclaim out of time?" Louise responded that the parties had been negotiating and she expected to resolve the case through that negotiation; however, the parties had not yet resolved the case, so she needed to file her "counterpetition." The district judge stated that he was not 100% sure of a deadline or requirement for filing a counterclaim, but even assuming there was, he found there was an exception under the circumstances of this case and allowed Louise to amend her answer to include a counterclaim for separate maintenance out of time as of March 27, 2017. The district court then permitted Dana to withdraw his oral motion to dismiss and set the case for trial on April 18, 2017. Subsequently, Dana timely filed an answer to Louise's counterclaim.

D. The April 2017 Hearing

At the April 2017 hearing, the parties announced they had reached an agreement on the division of property and spousal support. Dana testified and confirmed the division of assets and debts, including his agreement to pay Louise maintenance. Dana also agreed to pay a $227,000 equalization payment to Mathieu, if that was who Louise designated as her heir. Dana also agreed to dismiss the pending Missouri divorce case within 10 days. Louise also testified and confirmed the agreement. The parties had reduced the division of assets and debts to writing in Exhibit 101.

The district court accepted the parties' settlement and stated it would "do simply a short docket sheet of today's hearing. It won't lay out anything, but I will attach [Exhibit 101] to be filed with the docket sheet." The district judge asked, "Do we need to make any specific findings concerning the legal separation of this matter?" Louise's counsel replied that findings regarding the legal separation were not necessary but there should be detailed findings or a proposed journal entry regarding certain property and the maintenance payments. Dana's counsel agreed that a detailed journal entry was necessary.

The district court found the agreement was "made in fair negotiations" and was "equitable" and "fair," stated it adopted the agreement of the parties as its own, made it the order of the court effective that day, and filled out a docket sheet reflecting such. Regarding the journal entry, the district judge stated:

"You can make it however you want it, and, if you want to attach a copy of this to the journal entry, and just have the parties sign it after this is attached to it or make this supplemental to it and then make it as detailed as you would like.
"I mean, pretty much this is my order and whatever you-all agree to as long as it's consistent with this whatever format you put it in, doesn't make me any big bit of difference."

Counsel for both parties discussed wanting to list every maintenance payment and detailing each property with the legal description. Louise's counsel requested 10 days to file the proposed journal entry, and the district judge responded,

"That's fine, however long it takes. What we're going to do is do a docket sheet today. Essentially, I'll attach [Exhibit 101] to it, and we'll have a record. My order is effective as of today.
"So even if she, God forbid, passes prior to the journal entry, the order is effective when given. So we'll just wait on that."

The district court then completed a docket sheet that read as follows:

"Parties reach agreement and presents [sic ] testimony of agreement. [Louise] introduces Exhibit 101, which is an agreed spreadsheet of all property owned by the parties.
"After hearing all testimony and the agreements of the parties the court finds the agreement to be fair and equitable. The court adopts the agreement, and makes it the court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit 101, attached hereto, is adopted as [the] entire property list of the parties."

Dana later dismissed the Missouri divorce case.

E. Louise's Death, the Denial of Dana's Second Motion to Dismiss, and Substitution of Mathieu for Louise

On July 1, 2017, Louise died. At the time of Louise's death, her counsel still had not filed the court-ordered journal entry.

In a letter to the court on July 5, 2017, Dana's counsel reported that he and Louise's counsel had agreed he would draft the journal entry and forward it to her, which he had done on May 8, 2017, but he never heard back from Louise's counsel. Dana's counsel argued "the failure to have a signed journal entry at the time of the death of one of the parties, resulted in the parties still being married and the court being unable to enter a journal entry following the death of one of the parties." Dana asked the court to take no further action and dismiss the matter due to the passing of Louise.

On July 14, 2017, Dana filed proof of Louise's death; five days later, he sought to dismiss the action, arguing that under K.S.A. 2017 Supp. 60-258 the failure to have a journal entry on file at the time of Louise's death meant the separate maintenance or legal separation action abated at that time, so the action had to be dismissed. Louise's counsel opposed the motion for dismissal but did not make any specific counterarguments in support of her objection.

On August 31, 2017, Louise's counsel and Dana appeared at a hearing on Dana's motion to dismiss. Before hearing argument on that motion, Louise's counsel made an oral motion under K.S.A. 2017 Supp. 60-225(a) to substitute Mathieu as a successor or a representative of Louise's interests. Louise's counsel informed the court that Mathieu retained her on July 31, 2017, and argued that K.S.A. 2017 Supp. 60-225(a) was very clear that once a motion for substitution of a party is made by the successor or representative, the district court must grant the motion. Dana opposed this oral motion for substitution, arguing that the action and Louise's claim extinguished on her death, so no one could be substituted for her at all, and even if the claim was not extinguished, only Louise's estate could be substituted for Louise under K.S.A. 2017 Supp. 60-225(a). Mathieu confirmed at a later hearing that he was not Louise's executor. Notwithstanding, the district court granted the motion and substituted Mathieu for Louise.

The district court then heard Dana's motion to dismiss. Dana testified and acknowledged that he and Louise had reached a separation agreement, that he had made payments to Louise of $5,000 per month both before and after the April 2017 hearing, and that he had paid her credit card bills both before and after the April 2017 hearing.

After Dana's testimony, his counsel argued that the case had to be dismissed because the district court lost jurisdiction upon Louise's death as there had been no journal entry filed in the case memorializing the parties' agreement. Mathieu opposed the motion, arguing that a journal entry is a record of the judgment but is not the judgment itself and that it was clear from the April 2017 hearing that there was an oral binding agreement placed on the record that the district court had adopted. Additionally, Mathieu argued the district court's docket sheet was sufficient to constitute a judgment form that also qualified as the entry of a judgment.

The district judge denied Dana's motion to dismiss, stating, "I do believe the docket sheet as referred to by [Mathieu's] counsel in his arguments, it does, in fact, contain the requisite information that a journal entry will contain absent the specific details." The district judge further commented "that this Court itself expedited matters and moved other hearings and cases out of the way because of [Louise's] illness to try to bring a final conclusion to this matter prior to her death" and "what this Court expected was a more thorough, more exhaustive journal entry." The district court also remarked "in hindsight, perhaps we did not do it according to the rule of law and if that be the case, then the Court of Appeals will make the right decision and I'll be reversed and [Dana] will have the benefit of the law." Mathieu's counsel offered to submit a proposed journal entry memorializing the agreement but replacing Louise's name with Mathieu's. The district court agreed and ordered Mathieu's counsel to submit the journal entry within 72 hours.

F. Mathieu's Claim for Enforcement of the Marital Settlement Agreement

Surprisingly, Mathieu's counsel failed to file the court-ordered journal entry within 72 hours, and by mid-September 2017 there still was no journal entry filed. Instead, on September 14, 2017, Mathieu's counsel filed a document entitled "Counter Petition for Enforcement of Marital Settlement Agreement," alleging breach of contract, unjust enrichment, and equitable estoppel claims again Dana. Specifically, Mathieu alleged that Dana had breached the April 2017 separation agreement and Mathieu, as Louise's successor, was owed damages, attorney fees, and costs. Dana denied and opposed all of these claims, arguing in part that there was no enforceable agreement once Louise died without a journal entry having been entered. Additionally, despite the district court's previous denial of Dana's motion to dismiss, Mathieu's counsel filed arguments in opposition to Dana's motion to dismiss and, alternatively, asked the district court to enter a judgment nunc pro tunc "to correct any error necessary to give the court's order and judgment full force and effect as of April 18, 2017, as ordered on April 18, 2017."

On November 15, 2017, the district court held a hearing on these motions. First, the district judge denied Mathieu's request for a nunc pro tunc order, stating that while he had intended for the April 2017 docket sheet to be a final decision, he had been ignorant of the law requiring a journal entry. The district court indicated that the docket entry was not a journal entry or a judgment form but was a trial docket or a docket sheet; the district court had expected a journal entry; and if the docket entry was final, then the district court had not given any notice to the parties of the right to appeal that entry. Nevertheless, the district court again refused to dismiss the case due to Louise's death and instead took up Mathieu's request to enforce the settlement agreement.

Both Dana and Mathieu testified. Dana did not dispute that since the April 2017 hearing he had taken care of the properties assigned to him in Exhibit 101; that Louise had resided in one of the Canadian properties assigned to her until her death; that he had paid her credit card bills, her maintenance, and paychecks; and that he had dismissed his Missouri divorce action. However, Dana also testified that it was not his "understanding that every single little detail [of the agreement] was laid out in front of this court" at the April 2017 hearing and that several details of the agreement missing from the testimony provided at that time would have been reduced to writing in the journal entry. Dana contended that the agreement was never reduced to a formal writing because he and his attorneys proposed a full written agreement in the form of a journal entry but Louise and her counsel never approved it or submitted it to the court.

Mathieu testified that he had contact with Dana after the April 2017 hearing and before Louise's death and Dana never told him there were documents that needed to be signed by Louise to finalize anything. Mathieu also testified that Louise informed him there had been an agreement reached, but Dana had never told him this nor had he ever seen Exhibit 101 or an agreement.

The district court found there had been a meeting of the minds between Dana and Louise at the April 2017 hearing, found the disposition of all the property was testified to on that date, and granted Mathieu's motion to enforce the property settlement agreement. It ordered that a journal entry reflecting the agreement be prepared by Mathieu's counsel and that the journal entry include not only Exhibit 101 but also every aspect of the agreement that was testified to at the April 2017 hearing.

G. Final Actions and Filing of the Journal Entry in the District Court

By February 2018, no journal entry had yet been filed. So, on February 14, 2018, Dana moved for a mistrial or alternatively to dismiss the case. This motion finally prompted Mathieu's counsel to act, and on February 22, 2018, Mathieu's counsel submitted a proposed journal entry, which the court signed without amendment. The journal entry denied Dana's July 2017 motion to dismiss; outlined what property and debts Dana and Louise were to receive; ordered Dana to pay Louise an equalization payment of $227,000 payable over 15 years at 2% annual interest with a balloon payment at the end of the equalization payments totaling 5 years' worth of payments; ordered Dana to pay nonmodifiable maintenance of $5,000 a month until November 2026 or upon the death of either party; and ordered Dana to dismiss his Missouri action. Exhibit 101 was also attached to the order.

Dana timely appeals.

DID THE DISTRICT COURT ERR IN DENYING DANA'S MOTION TO DISMISS AFTER LOUISE'S DEATH ?

Dana's principal argument on appeal is that the district court erred in not granting his July 2017 motion to dismiss. Specifically, he argues that because Louise died before a final journal entry had been entered in the case, the separate maintenance action abated upon her death and, therefore, the district court was divested of jurisdiction. Mathieu argues that a civil action does not automatically terminate upon the death of a party and that the court properly proceeded on Mathieu's claim for enforcement of the property settlement agreement as an oral contract. Whether jurisdiction exists is a question of law over which we exercise unlimited review. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017).

A. Does an action for separate maintenance abate upon the death of one of the parties?

At common law, all personal actions permanently abate upon the death of a sole plaintiff or defendant. 1 Am. Jur. 2d Abatement, Survival, and Revival § 44 ; see 1 C.J.S., Abatement and Revival § 132 (a pending action abates upon death of either party at common law unless altered by statutory enactment). Kansas has altered the common law rule, and according to our Supreme Court, "whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801." Gross v. VanLerberg , 231 Kan. 401, 405, 646 P.2d 471 (1982). K.S.A. 60-1801 states:

"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same."

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). When a statute is plain and unambiguous, we should not speculate about the legislative intent behind that clear language and should refrain from reading something into the statute that is not readily found in its words. See Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).

According to the plain language of K.S.A. 60-1801, all actions at common law that survive the death of a party, plus those listed in the statute, do not abate upon the death of a party. But because personal actions at common law do abate, the question is whether an action for separate maintenance is a personal one.

The law in Kansas has long recognized that "[a] divorce action is purely personal and ends on the death of either spouse." Wear v. Mizell , 263 Kan. 175, 180, 946 P.2d 1363 (1997) ; see Adamson v. Snider , 131 Kan. 284, 285, 291 P. 744 (1930) ("The principal point to be determined in an action for divorce is the marital status of the parties, and after the death of one of them that is no longer open to litigation."); see also In re Marriage of Wilson , 245 Kan. 178, Syl. ¶ 2, 777 P.2d 773 (1989) ("In an action for divorce, when a party dies after the divorce is orally granted but prior to the requested journal entry of judgment being signed by the trial judge and filed with the clerk of the district court, it is held that K.S.A. 60-258 renders the divorce decree ineffective."). In short, "[a] divorce action abates at the time of death." Wear , 263 Kan. at 180, 946 P.2d 1363.

A century ago, the Illinois Supreme Court discussed the personal nature of a divorce action and its similarities with a separate maintenance action for the purposes of abatement:

"Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action.
"While the present action is one for separate maintenance, and differs from a divorce proceeding, in that the latter is one for dissolution of the marriage relation, while the former is one in affirmance of it and to enforce the obligations of that relation, they are both, nevertheless, similar in their nature, as the marriage relation constitutes the foundation of the action in each case, and the dissolution of that relation extinguishes the subject-matter which forms the basis for such an action." Bushnell v. Cooper , 289 Ill. 260, 264-65, 124 N.E. 521 (1919).

Under K.S.A. 23-2701 and K.S.A. 23-2706, both the grounds and the remedies for divorce and separate maintenance are the same. But unlike a divorce, an action for separate maintenance does not terminate the marriage but allows the parties to live separate and apart. Like in a divorce, in a separate maintenance action, the court may order or the parties may agree to determine property and inheritance rights. See 1 Kan. Law & Prac., Family Law § 9:58 (2018). Given that the nature of a spousal maintenance action is very similar to a divorce action, and its essence is personal as it allows for a married couple to live separately, we hold that a separate maintenance action is a personal one that abates at the time of a party's death. This finding is in accord with other jurisdictions which have considered the question. See, e.g., In re Marriage of Hilke , 4 Cal. 4th 215, 220, 14 Cal. Rptr. 371, 841 P.2d 891 (1992) (action for legal separation or dissolution is personal and abated at spouse's death); Bushnell, 289 Ill. at 264-65, 124 N.E. 521 (separate maintenance action abates upon death of a spouse); Cregan v. Clark , 658 S.W.2d 924, 927 (Mo. App. 1983) ("[A] suit for dissolution or for legal separation abates upon the death of one of the parties before final judgment."); Trinosky v. Johnstone , 149 N.M. 605, 608, 252 P.3d 829 (Ct. App. 2011) ("[U]nder the common law rule of abatement, if a party to a legal separation action died prior to entry of a final decree, the court was divested of jurisdiction over the matter.").

Accordingly, just as in a divorce, if either spouse in a separate maintenance action dies prior to the filing of a final journal entry, the separate maintenance action abates upon the death of that spouse and the district court loses jurisdiction.

B. Was there a legally sufficient journal entry filed in the case prior to Louise's death?

The next question is whether Louise died before a journal entry was entered. If there was a journal entry entered before the death of Louise, then her death would be inconsequential to the enforceability of the property settlement agreement. Although it involves a divorce action, In re Marriage of Wilson , 245 Kan. at 178-79, 777 P.2d 773, illustrates the importance of determining if a binding journal entry was entered before the death of a party. In Wilson , at the divorce hearing the parties verbally agreed on a property settlement, child custody, child support, and maintenance. The district court then "orally granted a divorce to each party and accepted the parties' stipulation as to their agreement on the balance of the issues" and directed wife's counsel to prepare the journal entry. 245 Kan. at 179, 777 P.2d 773. The journal entry was filed with the district court approximately 30 days later. However, nine hours before the court entered that journal entry, the husband died. The wife then requested to be relieved from the decree. The district court agreed with the wife, set aside the journal entry, and dismissed the action, holding that under K.S.A. 60-258 the parties were still married at the time of the husband's death and so the journal entry was void. The administrator of the husband's estate appealed.

The Kansas Supreme Court ultimately unanimously affirmed the district court, holding:

"The 1976 amendment [to K.S.A. 60-258 ] unequivocally states that no judgment is effective until a journal entry or the judgment form is signed and filed. A journal entry was requested by the trial court herein. The decision of the trial court could not become effective prior to its filing by the express language of K.S.A. 60-258. If the decision of the trial court granting the divorce could not become effective prior to the filing of the journal entry, then it was ineffective prior to that time. [Husband] died prior to the trial court's approval of, and the filing of, the journal entry. At the time of his death, [Husband] was lawfully married to [Wife]. His death terminated that marriage.
Accordingly, there was no marriage for the decree of divorce to terminate at the time the journal entry reflecting the judicial termination was filed. [Wife] was [Husband's] widow at the time the journal entry was signed and filed. We must conclude that the majority opinion of the Court of Appeals correctly affirmed the trial court's setting aside of the journal entry granting a decree of divorce." 245 Kan. at 180-81, 777 P.2d 773.

Further, the Supreme Court held that the parties' oral agreement to the division of property and debts, orally approved of by the district court, was not effective absent a journal entry:

" 'Although separation agreements are authorized by statute, K.S.A. 1988 Supp. 60-1610(b)(3), division of property and apportionment of debt are not necessary where the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this case; therefore, the agreement incorporated therein must also be ineffective. If there is no divorce, there is no division of marital property.' [Matter of Marriage of Wilson ] 13 Kan. App. 2d [291] at 294, 768 P.2d 835 [1989]." 245 Kan. at 181, 777 P.2d 773.

Other Kansas cases dealing with the entry of journal entries or judgment forms have held similarly to Wilson -if the death of a spouse comes before the journal entry is entered, the case abates; if the death of a spouse comes after the journal entry is entered, the case does not abate. See Wear , 263 Kan. at 180, 946 P.2d 1363 (holding divorce action abated when husband died before filing of journal entry);

Great Plains Trust Co. v. Wallins , No. 99,483, 2008 WL 5135043, at *3 (Kan. App. 2008) (unpublished opinion) (holding divorce case ended when the husband died before journal entry entered); In re Marriage of Gilchrist , No. 91,029, 2004 WL 1716204, at *3 (Kan. App. 2004) (unpublished opinion) (holding husband could not seek to set aside judgment and relitigate child support and other issues because "trial court lost subject matter jurisdiction over the divorce case when [the wife] died").

And these holdings align with the mandate from K.S.A. 2016 Supp. 60-258 that "[n]o judgment is effective unless and until a journal entry or judgment form is signed by the judge and filed with the clerk."

Yet, here, the question before us contains a unique wrinkle: The district judge filled out a docket sheet that was used to add line entries in the district court's register of actions and record minutes of what transpired during a proceeding before the district court. The docket sheet read:

"Parties reach agreement and presents [sic ] testimony of agreement. [Louise] introduces Exhibit 101, which is an agreed spreadsheet of all property owned by the parties.
"After hearing all testimony and the agreements of the parties the court finds the agreement to be fair and equitable. The court adopts the agreement, and makes it the court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit 101, attached hereto, is adopted as [the] entire property list of the parties."

Louise's counsel never filed a journal entry prior to her client's death.

"The law in Kansas is clear that a case is not final until there is no possibility of further court action. The effective date of a journal entry is when it is signed by the trial judge and filed with the clerk of the district court. A journal entry containing findings of fact and conclusions of law takes precedence over and may differ from the trial court's oral pronouncement from the bench. A judgment that has been orally pronounced but that lacks a journal entry is therefore not a final judgment. [Citations omitted.]" Valadez v. Emmis Communications , 290 Kan. 472, 482, 229 P.3d 389 (2010).

Thus, we must determine if the district court's docket sheet is sufficient to qualify as a journal entry or judgment form under K.S.A. 2016 Supp. 60-258. A judgment is effective only when a journal entry or judgment form has been signed by the judge and filed with the clerk of the district court. 290 Kan. at 482, 229 P.3d 389. Importantly, trial docket minute sheets do not comply with K.S.A. 2016 Supp. 60-258. See Wilson , 245 Kan. at 180-81, 777 P.2d 773.

Although the docket sheet or minute sheet in this case bears the signature of the district judge, this document was never filed with the clerk of the district court. It bears no file stamp. Moreover, while the docket sheet states it adopted the agreement of the parties as the court's order, actually, there is no indication in the docket sheet of the substance of the parties' agreement apart from an exhibit listing the property of the parties. There is nothing regarding the settlement figure testified to, maintenance, living expenses, or the dismissal of the Missouri divorce action. The docket sheet itself even orders a journal entry to be prepared and filed. Notably, the district judge himself conceded that this was not a journal entry but "was a trial docket or what we call here in Wyandotte County a docket sheet" and that the court had "expected another document that would have the title journal entry on the document." Under the facts presented here, the docket sheet did not qualify as a final journal entry or judgment form.

Because the district court's docket sheet was insufficient to stand in place of a journal entry or judgment form and because Louise died before any final journal entry was filed, Dana's separate maintenance action abated upon Louise's death and the district court lost subject matter jurisdiction over the case. The district court erred in denying Dana's motion to dismiss filed after Louise's death.

The judgment of the district court is reversed, and the case is remanded with instructions for the district court to dismiss the case. The other issues raised by Dana are moot, and we express no opinion as to their propriety.

Reversed and remanded with directions.


author: Burgess, J.:

text:
    STATE of Kansas, Appellant, v. Scott D. DWYER, Appellee.
    No. 118,940
    Court of Appeals of Kansas.
    Opinion filed March 15, 2019.
    Stephanie B. Poyer, of Butler & Associates, P.A., of Topeka, for appellant.
    Scott D. Dwyer, appellee pro se.
    Before Arnold-Burger, C.J., Atcheson, J., and Burgess, S.J.
   Burgess, J.:

Scott D. Dwyer was convicted of three counts of theft in 2003. Dwyer was ordered to pay $8,450 in restitution as part of his sentence. In 2017, Dwyer filed a motion with the district court to release his judgment because it had remained dormant for the statutory period of seven years. However, the Kansas Legislature amended the dormant judgment statute in 2015 so that, as of July 1, 2015, restitution judgments could no longer be judicially released and instead would remain collectible forever. Any restitution judgment that was deemed void before July 1, 2015, could still be released. See K.S.A. 2017 Supp. 60-2403(b).The State argued that Dwyer's judgment was not void as of July 1, 2015, and, thus, his judgment could never be extinguished under the new statute. The district court held Dwyer's judgment was already void prior to the amendment's effective date and released his judgment. The State appeals this decision. We reverse and reinstate the judgment against Dwyer consistent with K.S.A. 2017 Supp. 60-2403(b).

FACTUAL AND PROCEDURAL BACKGROUND

On February 24, 2003, Dwyer pled guilty to three counts of theft and was sentenced to 12 months in prison with postrelease supervision. The district court also ordered Dwyer to pay $8,450 in restitution as a condition of his postrelease supervision. Dwyer's sentence began on December 13, 2002.

On November 29, 2017, Dwyer filed a motion to release his judgments in four separate criminal cases, including this one, arguing that no one had attempted to collect the judgment in five years. Dwyer asserted that inaction rendered the judgment dormant. Dwyer also argued that when the judgments went dormant, no one attempted to collect on the judgments for an additional two years which rendered them void and subject to release. In contrast, the State argued that, pursuant to K.S.A. 60-2403(d), a plaintiff has up to 12 years to collect a restitution judgment before the judgment becomes void and is subject to release. Further, due to an amendment to the statute in 2015, the State argued that Dwyer's judgment would never become dormant and, thus, could be enforced forever because his judgment was still active as of the amendment date. See K.S.A. 2017 Supp. 60-2403(b).

The district court agreed with Dwyer. The district court found the sentencing journal entry "did not clearly and unambiguously state" that the restitution owed was immediately payable. Thus, even though Dwyer's restitution was originally ordered on March 24, 2003, pursuant to Kansas caselaw, the restitution's enforcement date was stayed until Dwyer completed his sentence. The record does not include the exact date Dwyer completed his sentence, but the district court stated that Dwyer's sentence would have been completed on December 13, 2003, assuming that he did not earn any good time credit. However, assuming Dwyer earned all his good time credit, he would have completed his sentence in mid-October 2003 at the earliest. Thus, his restitution payment would become due on either of these days and the collection clock would start running.

The district court also explained the legislative history of K.S.A. 60-2403. Prior to 2015, subsection (d) provided that an individual has 10 years to collect a restitution judgment before it becomes dormant. If that judgment remained dormant for an additional two years, a defendant could then ask the district court to release that judgment. However, the statute was amended in 2015 and subsection (d) was stricken, which eliminated the 10-year collection period and imposed a 5-year collection period in its place. Additionally, those judgments that were not void as of July 1, 2015, would never become dormant. See L. 2015, ch. 53, § 4.

The district court then applied K.S.A. 2017 Supp. 60-2403. Recognizing that no one had attempted to collect on the judgment within the five-year collection period mandated by the amended statute, the judgment became dormant "at least by December 13, 2008." Because the statute requires the judgment to remain dormant for an additional two years before it may officially be deemed void, the judgment would have become void on December 13, 2010, at the latest. Therefore, the district court ruled the judgment was void as of July 1, 2015, and could still be released from judgment under the amended statute. This meant that K.S.A. 2017 Supp. 60-2403(b), which mandated that a judgment could never become dormant, did not apply.

But, the district court also noted that restitution judgments are now subject to the five-year collection period because the "clear legislative intent is that as of July 1, 2015, judgments for restitution are subject to K.S.A. 60-2403(a)(l) and those judgments that were not void as of July 1, 2015 will never become dormant." As such, the district court found that "[Dwyer's] judgment for restitution in this case became void the minute the amendments went into effect." The district court granted Dwyer's motion and released the restitution judgment on December 27, 2017.

The State filed a notice of appeal on January 23, 2018. Dwyer then filed a motion to dismiss the appeal arguing the State filed an untimely notice of appeal. Another Court of Appeals panel denied the motion stating that although Dwyer's obligation to pay restitution stems from a criminal conviction, the appeal from the judgment voiding restitution was a collateral attack and was civil in nature. The panel ruled that the State's notice of appeal was timely because the journal entry was filed on December 27, 2017, and the State filed its notice of appeal on January 23, 2018, which was within the 30 days allotted by statute. Dwyer also filed a petition for review on the jurisdiction issue, but the petition was denied.

DOES THIS COURT HAVE JURISDICTION TO HEAR THE ISSUES ON APPEAL ?

Before reviewing the issue on the merits, Dwyer first asserts that this court lacks jurisdiction to hear the State's appeal for the following reasons: (1) The State did not file a timely notice of appeal, (2) the State is not permitted to appeal under these circumstances according to statute, and (3) the State failed to list its basis for jurisdiction in the notice of appeal.

With respect to whether the notice of appeal was timely, Dwyer argues that, because the restitution judgment stems from a criminal case, the State was required to file its appeal within 14 days of the district court's ruling from the bench. Dwyer also argues that even if this case is considered to be a civil action, the State still failed to file the notice of appeal within 30 days from when the district court pronounced its ruling from the bench as required by the civil procedure rules. Dwyer asserts that the district court pronounced the ruling from the bench on December 22, 2017, and the State did not file its appeal until January 23, 2018, which was 32 days after the district court made its ruling.

The timely filing of a notice of appeal ordinarily is jurisdictional. See In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017). Additionally, " '[i]t is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal.' " Associated Wholesale Grocers, Inc. v. Americold Corporation , 293 Kan. 633, 637, 270 P.3d 1074 (2011) (quoting Hess v. St. Francis Regional Med. Center , 254 Kan. 715, 718, 869 P.2d 598 [1994] ). Our standard of review provides that whether jurisdiction exists is a question of law over which this court's review is unlimited. State v. Jamerson , 54 Kan. App. 2d 312, 314, 399 P.3d 246 (2017).

Dormant restitution judgments are governed by K.S.A. 2017 Supp. 60-2403 ; Chapter 60 covers civil procedure rather than criminal law. Additionally, K.S.A. 21-4603d(b)(2) provides that "[i]f the court orders restitution, the restitution shall be a judgment against the defendant which may be collected by the court by garnishment or other execution as on judgments in civil cases." A recent Court of Appeals panel affirmed that enforcement of a criminal defendant's restitution is "governed by the Kansas Code of Civil Procedure and is treated the same as any other money judgment obtained in a civil suit." Jamerson , 54 Kan. App. 2d at 315, 399 P.3d 246. Kansas civil procedure rules provide that an appeal must be filed within 30 days from "entry of the judgment." K.S.A. 2017 Supp. 60-2103(a). In civil cases, a judgment is entered when a journal entry or judgment form is filed. K.S.A. 2017 Supp. 60-258.

Here, the district court did not have an oral hearing on the matter, but rather it filed a journal entry of its decision on December 27, 2017. Because this is a civil matter, the State had 30 days from this date to file its appeal. The State filed its notice of appeal on January 23, 2018, which was 27 days later. Thus, the State filed a timely notice of appeal.

Dwyer also argues that the State may only appeal a judgment under a few circumstances and this is not one of them. Dwyer further contends that because the State failed to list the basis for jurisdiction in its notice of appeal, this precludes this court from considering the issues on appeal. The State addressed the jurisdiction issue when it filed its response to Dwyer's petition for review, but it does not address the jurisdiction issue in its appellate brief.

Generally, the State may only appeal a judgment in a criminal case under the following circumstances:

"(1) From an order dismissing a complaint, information or indictment;
"(2) from an order arresting judgment;
"(3) upon a question reserved by the prosecution; or
"(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime." K.S.A. 2017 Supp. 22-3602(b).

Dwyer asserts the State could have arguably reserved a question under section (3), but the State did not do so. Dwyer also argues that the State was required to list one of these four grounds in its notice of appeal but failed to do. Because this is a civil matter, K.S.A. 2017 Supp. 22-3602 does not define the grounds on which the State may appeal. Instead, the State cited K.S.A. 60-2101 as the basis for its appeal. K.S.A. 60-2101(a) states that appeals in civil actions are governed by K.S.A. 60-2102.

K.S.A. 2017 Supp. 60-2102(a) allows a party to appeal a judgment as a matter of right from:

"(1) An order that discharges, vacates or modifies a provisional remedy.
"(2) An order that grants, continues, modifies, refuses or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus.
"(3) An order that appoints a receiver or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or an order involving the tax or revenue laws, the title to real estate, the constitution of this state or the constitution, laws or treaties of the United States.
"(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable."

Because the December 2017 judgment was a final decision, it is appealable under K.S.A. 2017 Supp. 60-2102(a)(4). Further, nothing in this statute requires a party to explicitly assert one of these grounds for jurisdiction in order to perfect an appeal. Rather, the Kansas Civil Procedure statutes only provide that the notice of appeal must specify the parties taking the appeal, designate the judgment or part thereof appealed from, and name the appellate court to which the appeal is taken. K.S.A. 2017 Supp. 60-2103(b). The State's notice of appeal includes all of these requirements and the State followed the proper procedures to perfect its appeal. Thus, this court has jurisdiction to hear the issue.

DID THE DISTRICT COURT ERR IN DETERMINING DWYER'S JUDGMENT WAS VOID AS OF JULY 1, 2015?

Finding that this court has jurisdiction over this appeal, the sole issue for determination is when Dwyer's judgment became void under the statute. Our standard of review provides that interpretation of a statute receives unlimited review. Jamerson , 54 Kan. App. 2d at 314, 399 P.3d 246.

When interpreting a statute, an appellate court first looks at the plain language of the statute to ascertain the Legislature's intent. " 'When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.' [Citations omitted.]" In re Estate of Strader , 301 Kan. 50, 55, 339 P.3d 769 (2014). It is only when the language is unclear that the court looks to the canons of statutory construction, consults legislative history, or considers other background information to ascertain its meaning. Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014).

We first must determine when the "collection clock" started to run as to the viability of the restitution order. Here, Dwyer's journal entry from sentencing was ambiguous as to whether his restitution order would be enforced during his incarceration period or if it would only become enforceable once he completed his sentence. The Kansas Supreme Court has held that if a district court intends for the restitution judgment to be enforced during the defendant's incarceration period, the district court must state this intention unambiguously. State v. Alderson , 299 Kan. 148, 151, 322 P.3d 364 (2014). When a district court's restitution order fails to unambiguously state when the restitution order will be enforced, the restitution judgment will not be enforced until the defendant is released from prison. See 299 Kan. at 151, 322 P.3d 364. Thus, the collection clock on Dwyer's restitution judgment did not begin until October 2003 when he was released from prison.

We turn next to interpretation of the statute involved here, K.S.A. 2017 Supp. 60-2403. But first, a brief explanation of its history is in order.

Prior to 2015, K.S.A. 60-2403(d) specifically provided a section detailing how dormant restitution judgments were to be addressed. It provided that when a creditor has not filed a renewal affidavit or if execution proceedings had not been issued within 10 years of the journal entry of restitution order, the judgment became dormant "and cease[d] to operate as a lien on the real estate of the judgment debtor." If the judgment remained dormant for an additional period of two years, the district court was required to release the judgment of record upon the defendant's request. K.S.A. 60-2403(d). A creditor could revive or renew its intention to collect the debt at any time before the full 12 years had passed in order to keep the judgment alive. K.S.A. 60-2403(d). The Legislature amended the statute in 2015 and eliminated subsection (d) regarding the dormancy calculation for restitution judgements. Instead, as to restitution judgments, the statute now informs us that they never become dormant. But the new statute contains one critical exception for judgments that were void as of the adoption of the amendments:

"Except for those judgments which have become void as of July 1, 2015, no judgment for court costs, fees, fines or restitution shall be or become dormant for any purpose except as provided in this subsection. If a judgment would have become dormant under the conditions set forth in subsection (a), the judgment shall cease to operate as a lien on the real estate of the judgment debtor as of the date the judgment would have become dormant, but the judgment shall not be released of record pursuant to subsection (a)." K.S.A. 2017 Supp. 60-2403(b).

The district court interpreted this change to mean that Dwyer's judgment now fell under the general civil judgment category in subsection (a)(1) which meant that Dwyer's judgment became dormant in October 2008 after applying the general five-year period in civil actions before it would be declared dormant. This judgment laid dormant for an additional two years; thus, the judgment became void (or subject to mandatory release upon request) as of October 2010. Because this judgment was already void as of July 1, 2015, Judge Goering opined that subsection (b) did not apply and the judgment could be released pursuant to (a)(1).

It was the State's position that using the 10-year collection period under the previous statute, Dwyer's judgment would not become dormant until October 2013 and, thus, the judgment would not be void until October 2015. Because it was not void as of July 1, 2015, the judgment could not be subsequently released. But, the district court ruled that the State's application meant applying both the 10-year collection period under the old statute and applying the "judgments never go dormant" provision from the new statute. The district court ruled that the State could not mix and match portions of the two versions of the statute. We disagree. There is no mixing and matching of statutes here.

The amended statute states in plain and unambiguous language that restitution judgments that were not void as July 1, 2015, shall not "be or become dormant for any purpose except as provided in this subsection." K.S.A. 2017 Supp. 60-2403(b). The remaining provision simply deals with how a restitution judgment that would be dormant under the new five-year provision should be treated-it is no longer a lien on real estate, but it still cannot be released. Under the most favorable interpretation to Dwyer, the judgment against him could not have been considered void any earlier than October 2015, clearly subsequent to July 1, 2015.

Both parties make extensive arguments as to whether the 2015 amendment to K.S.A. 60-2403 should be applied retroactively. We find that there is no need to do so.

The plain and unambiguous language of the statute informs us how to apply it before and after July 1, 2015. Those restitution judgments that were already void (or subject to mandatory release upon request) as of July 1, 2015, would not be subject to the new "never dormant" restitution provision because those judgments already had a predetermined expiration date. And this interpretation makes sense. To hold otherwise would to be to find, for example, that a restitution judgment that was eight years old and completely enforceable on June 30, 2015, would be wiped out on July 1, 2015, to the detriment of a creditor who was relying on the 10-year period before dormancy and the 12-year period before it was considered void. We are required to construe statutes to avoid such unreasonable or absurd results. State v. Arnett , 307 Kan. 648, 654, 413 P.3d 787 (2018).

The judgment of the district court releasing the restitution judgment against Dwyer is reversed. It is ordered that the judgment rendered against Dwyer is valid and shall continue as a judgment against Dwyer.

Reversed.