author: Standridge, J.:

text:
    STATE of Kansas EX REL. Derek SCHMIDT, Attorney General, Appellant, v. Ronald NYE, Joyce Nye, Terri Hurley, and Gary McAvoy, Individually and d/b/a Vintage Memorabilia, and Empraxis, LLC d/b/a Vintage Memorabilia, Appellees.
    No. 118,666
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Bryan C. Clark, assistant solicitor general, Dwight R. Carswell, assistant solicitor general, M.J. Willoughby, assistant attorney general, and Derek Schmidt, attorney general, for appellant.
    Tai J. Vokins and Krystal Vokins, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC, of Lawrence, and O. Yale Lewis Jr., pro hac vice, of Hendricks & Lewis, PLLC, of Seattle, Washington, for appellees.
    Before Standridge, P.J., Pierron and Green, JJ.
   Standridge, J.:

The State appeals from the district court's order requiring it to pay attorney fees incurred by Ronald Nye, Joyce Nye, Terri Hurley, Gary McAvoy, and Vintage Memorabilia (hereinafter Defendants) in resisting and obtaining the dissolution of a preliminary injunction that was wrongfully issued. Finding no error, we affirm.

FACTS

On September 27, 2012, the State filed an ex parte verified petition asking the district court, among other things, to temporarily restrain and then preliminarily and permanently enjoin Defendants from the sale, publication, replication, and distribution of any and all Kansas Bureau of Investigation file materials relating to the 1959 murder of members of the Clutter family in Holcomb, Kansas. That same day, the district court entered the ex parte temporary restraining order as requested. An amended ex parte temporary restraining order was filed on October 9, 2012.

On December 17, 2012, the district court held an evidentiary hearing on the State's request to convert the ex parte temporary restraining order into a preliminary injunction. At the end of the hearing, the court granted the parties' joint request to submit legal arguments in support of their respective positions. On April 23, 2013, the district court granted the State's request and entered a preliminary injunction but left open the possibility for Defendants to request the court vacate it at a later date. Citing K.S.A. 60-905(b) as authority, the district court noted the State would not be required to post a bond in conjunction with the preliminary injunction.

On August 22, 2013, Defendants filed a motion to vacate the preliminary injunction. After significant delay due to discovery disputes, the State filed a motion for summary judgment on January 29, 2014. Defendants supplemented their motion to vacate on March 14, 2014, March 21, 2014, and June 6, 2014. The district court heard oral argument from the parties with regard to all pending motions on June 26, 2014, and took the matters under advisement. On November 7, 2014, Defendants filed an urgent request for a ruling on their motion to vacate. On November 26, 2014, the district court granted Defendants' motion to vacate the preliminary injunction, concluding that it should not have been granted in the first place.

On May 27, 2015, Defendants filed a motion to compel discovery that the State previously had failed to produce. Following a hearing, the district court granted that motion and ordered the State to produce the requested documents no later than July 7, 2015. Rather than produce the documents as ordered, the State filed a motion to voluntarily dismiss the case. Defendants indicated they did not object to voluntary dismissal but noted that allowing the State to do so before Defendants had an opportunity to present the court with various motions related to the litigation (including but not limited to their forthcoming motion for costs and attorney fees pursuant to K.S.A. 60-905 [b] ) would be highly prejudicial. Defendants subsequently filed a motion for costs and attorney fees. After further briefing and a hearing, the district court granted Defendants' motion for fees, awarding them $ 152,585 in attorney fees, but denied awarding costs. The district court held that the amount of fees it awarded all stemmed from the wrongfully issued preliminary injunction that was requested by the State. The district court also granted the State's motion to dismiss.

ANALYSIS

On appeal, the State argues the district court erred in awarding Defendants attorney fees. Specifically, the State claims (1) it is protected from an award of attorney fees under K.S.A. 60-905(b) based on the doctrine of sovereign immunity, (2) the district court failed to consider the "injunction-bond" rule in making its decision to award fees, and (3) the district court abused its discretion in awarding fees. We address each of the State's claims in turn.

1. Sovereign immunity

The State argues it is entitled to sovereign immunity with respect to the district court's award of damages and attorney fees incurred by Defendants as the result of a wrongfully issued preliminary injunction. For the reasons stated below, we are not persuaded by the State's argument.

At common law, a state-as the sovereign-is immune from suit unless it consents or waives its immunity. Commerce Bank of St. Joseph v. State , 251 Kan. 207, 213-14, 833 P.2d 996 (1992). Questions concerning sovereign immunity are jurisdictional and can be raised at any time. Purvis v. Williams , 276 Kan. 182, 197, 73 P.3d 740 (2003). Because sovereign immunity is jurisdictional, courts are compelled to address it. Connelly v. Kansas Highway Patrol , 271 Kan. 944, 962, 26 P.3d 1246 (2001).

In support of its decision to award damages and attorney fees to Defendants that were incurred as the result of a wrongfully issued preliminary injunction, the district court determined the State waived any sovereign immunity to which it may have been entitled. On appeal, the State challenges that determination. Specifically, the State asserts that only the Legislature can provide the consent necessary to waive sovereign immunity and that it must do so in express terms through legislative enactment. The State argues that K.S.A. 60-905(b), the legislative enactment under which the district court awarded damages and fees here, does not expressly consent to suit or waive sovereign immunity with respect to damages incurred by a defendant as the result of a wrongfully issued preliminary injunction requested by the State as a plaintiff.

We begin our analysis of the State's argument with K.S.A. 60-905(b), which provides as follows:

"Unless otherwise provided by statute or this section, no temporary injunction shall operate unless the party obtaining the same shall give an undertaking with one or more sufficient sureties in an amount fixed and approved by the judge of the court, securing to the party injured the damages such injured party may sustain including attorney fees if it be finally determined that the injunction should not have been granted. Neither the state nor any of its agencies shall be required to give an undertaking with one or more sufficient sureties in order to be granted a temporary injunction. For any other party, at the discretion of the judge, the undertaking required by this subsection may be waived."

In this statute, the Legislature expressly contemplates the State (1) as a party plaintiff seeking a temporary injunction and (2) as a party liable for damages and attorney fees when the temporary injunction is granted but later is determined to have been wrongfully issued. Based on the language of the statute, we find it is the injury sustained as a result of the wrongfully issued temporary injunction that gives rise to the State's liability for damages and attorney fees, not the posting of a bond. The Legislature's decision to exempt the State from posting a bond is immaterial to the issue of sovereign immunity. The purpose of a bond is to secure to the party injured by a temporary injunction those damages the injured party may sustain, including attorney fees. Idbeis v. Wichita Surgical Specialists , 285 Kan. 485, Syl. ¶ 3, 173 P.3d 642 (2007). By waiving the bond requirement, the Legislature is simply allowing the State and its agencies to act as their own sureties.

While a clear expression by the Legislature is the hallmark of an effective waiver of sovereign immunity, the United States Supreme Court also has recognized that waiver can be premised on litigation conduct. See Lapides v. Board of Regents of Univ. System of GA , 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). In Lapides , the Court determined that when a state is involuntarily brought into litigation in state court but then chooses to voluntarily remove the case to federal court, it thereby consents to the federal court's jurisdiction and waives immunity from suit by its litigation conduct. 535 U.S. at 619, 122 S.Ct. 1640.

No Kansas court has ever held that the State may waive its immunity from suit in state court through its litigation conduct. But sovereign immunity finds its source in the common law, and the common law adapts to changing circumstances to advance notions of fair play and equity. And, as noted above, recognizing that the State can waive sovereign immunity through its litigation conduct is not a novel notion. See Lapides , 535 U.S. at 624, 122 S.Ct. 1640. Holding that a state's litigation conduct may constitute a waiver of the doctrine of sovereign immunity would be a reasonable and fair adaptation of the common law. Sovereign immunity is a shield, not a sword to be used by the State when it invokes the court's equitable jurisdiction to obtain what ultimately was a wrongful injunction that caused damages to be incurred.

Such a holding provides the optimal balance between the interests of government entities and the interests of the wrongfully enjoined litigants. To that end, we note that a governmental entity seeking injunctive relief has the option not to seek a temporary injunction but instead to wait and obtain a permanent injunction after a full presentation of evidence and a determination of entitlement to the relief.

For all of the reasons set forth above, we hold the defense of sovereign immunity is not available to the State to shield it from liability for damages, including attorney fees, incurred by Defendants in seeking dissolution of the temporary injunction affirmatively sought and granted in its favor but later vacated based on a finding that it was wrongfully issued. The fact that the State was statutorily exempted from posting a bond to secure the availability of monetary funds in the event an award of damages and attorney fees was granted is immaterial to our holding.

2. Injunction-bond rule

"Where the trial court's authority to award attorney fees is questioned, an appellate court is presented with a question of law over which it exercises unlimited review." Idbeis , 285 Kan. at 490, 173 P.3d 642.

The State claims the injunction-bond rule allegedly reflected in K.S.A. 60-905(b) only allows an award of damages and attorney fees when the court orders the plaintiff to post a bond to secure money for potential damage and attorney fees. Because the court did not order it to post a bond before issuing the temporary injunction here, the State argues the court is necessarily precluded from requiring it to reimburse Defendants for damages and attorney fees it incurred in seeking to dissolve the temporary injunction. We disagree.

As we did in the preceding section, we again begin our analysis with K.S.A. 60-905(b), which the Legislature amended in 1988 by adding the following italicized language:

"Unless otherwise provided by statute or this section , no temporary injunction shall operate unless the party obtaining the same shall give an undertaking with one or more sufficient sureties in an amount fixed by the judge and approved by the clerk of the court, securing to the party injured the damages such injured party may sustain including attorney fees if it be finally determined that the injunction should not have been granted. Neither the state nor any of its agencies shall be required to give an undertaking with one or more sufficient sureties in order to be granted a temporary injunction. For any other party, at the discretion of the judge, the undertaking required by this subsection may be waived ." L. 1988, ch. 214, § 1.

Prior to its amendment, the statute required anyone requesting a temporary injunction to post a bond in order to provide security to the party injured for damages that the injured party may sustain (including attorney fees) if it were later determined that the injunction should not have been granted. See L. 1988, ch. 214, § 1; see also G.S. 1949, 60-1110 (version of statute in effect prior to 1963 incorporation of injunction provisions into code of civil procedure). This requirement was a condition precedent to the operation of the temporary injunction. Without a bond, the temporary injunction was of no force and effect. Ostler v. Nickel , 196 Kan. 477, 479, 413 P.2d 303 (1966). After its amendment, the language of the statute exempts the State from any requirement to post a bond and provides the court discretion to waive the bond requirement for any other party. Based on the plain language of the amended statute as it exists today, a bond is no longer a condition precedent to obtaining a temporary injunction. A temporary injunction can now be in full force and effect even if the court waives the bond requirement.

Notably, the State does not challenge the fact that a bond is no longer a condition precedent to obtaining a temporary injunction or the fact that a temporary injunction can now be in full force and effect even if the court waives the bond requirement. Instead, the State relies on what it refers to as the injunction-bond rule, which historically limited the recovery of damages to the amount of money posted for the injunction bond. By exempting the State from any requirement to post a bond, the State argues the Legislature intended to disallow any and all damages for a litigant who was injured as the result of a wrongful injunction put into place at the request of the State.

The injunction-bond rule is a judicially created equitable doctrine that, in Kansas, dates back over a century. See, e.g., State ex rel. Lewis, Co. Atty. v. Eggleston , 34 Kan. 714, 722-23, 10 P. 3 (1886). Under this rule, an injunction generally was not allowed to operate until the party obtaining the injunction provided a bond executed by one or more sufficient securities to secure any potential damages sustained by the defendant as a result of the temporary injunction. 34 Kan. at 722-23, 10 P. 3. An exception to that rule occurred when there was a showing that the plaintiff acted with malice in obtaining the temporary injunction. Upon a showing of malice, an action for the wrongful procurement of a temporary injunction was permitted to proceed, even in the absence of a bond. Alder v. City of Florence , 194 Kan. 104, 110, 397 P.2d 375 (1964) ("no action for the wrongful procurement of a restraining order and/or temporary injunction [other than one upon a bond] is maintainable without a showing of malice"); see Jacobs v. Greening , 109 Kan. 674, 676, 202 P. 72 (1921) ("We regard an action [other than one upon a bond] for its wrongful procurement as not maintainable unless brought as one for malicious prosecution.").

Notably, the decisions creating and applying the injunction-bond rule did so based on the pre-1988 version of K.S.A. 60-905(b). The 1988 amendment undercuts the injunction-bond rule by allowing the State-and potentially any other party-to be exempted from the bond requirement. But the amendment did not otherwise alter the overall purpose of the statute: to compensate parties that are harmed by wrongfully granted injunctions. See Idbeis , 285 Kan. at 499, 173 P.3d 642 (decided after 1988 amendment and yet reaffirming "the purpose of the injunction bond provision which contemplates that when a party obtains the extraordinary remedy of a temporary injunction and thereby temporarily deprives another of a right, the party should be responsible for any damages that arise if the restraint is wrongful").

Notwithstanding the 1988 amendment to the statute, the State argues that the injunction-bond rule remains good law and prohibits the recovery of damages for a wrongful injunction in the absence of an injunction bond. In support of its argument, the State relies on three Kansas Supreme Court cases and one Kansas Court of Appeals case. Two of the Supreme Court cases, Alder , 194 Kan. 104, 397 P.2d 375, and Jacobs , 109 Kan. 674, 202 P. 72, and the Court of Appeals case, DeWerff v. Schartz , 12 Kan. App. 2d 553, 751 P.2d 1047 (1988), were all decided before the 1988 amendment to K.S.A. 60-905(b) became effective. For this reason, the holdings in these cases fail to take into consideration the impact of the new language on an injured party's ability to recover damages from the State in the event of a wrongful injunction.

The third case relied on by the State is Idbeis . This is the only case cited by the State that was decided after the 1988 amendment. We find, however, that this case does not support the State's assertion that, under K.S.A. 60-905(b), the amount of damages and attorney fees that can be recovered by an injured party is limited to the amount of money posted in an injunction bond. In Idbeis , our Supreme Court held as a matter of first impression that although K.S.A. 60-905(b) justifies awarding attorney fees to wrongfully enjoined parties, those parties are only entitled to fees incurred in defending against wrongfully obtained temporary injunctive relief and not to fees incurred in litigating the underlying permanent injunction lawsuit. 285 Kan. at 499, 173 P.3d 642. In the analysis leading up to this holding, the court relied on the language of K.S.A. 60-905(b) to draw attention to the two requirements that must be met before damages can be recovered under that statute. First, the court must have finally determined that the temporary injunction should not have been granted. Second, the injured party must establish that the fees were incurred as the actual, natural, and proximate result of the granting of the temporary injunction order. 285 Kan. at 489, 173 P.3d 642.

Significantly, the Idbeis court did not construe K.S.A. 60-905(b) to require a temporary bond injunction be posted before damages can be recovered under that statute.

In its memorandum decision and order holding that damages against the State are recoverable under K.S.A. 60-905(b) in the absence of an injunction bond from the State, the district court in this case relied on Brady Fluid Svc., Inc. v. Jordan , 25 Kan. App. 2d 788, 972 P.2d 787 (1998). In Brady , the plaintiff sought a temporary injunction to require the defendants to remove a barrier from a road the plaintiff had been using for several years. The road at issue was on the defendants' property and was not a dedicated public road. The district court initially granted the temporary injunction as requested. The court waived the bond requirement for the plaintiff, and the plaintiff filed no bond before the temporary injunction was issued. The matter came on for trial on the question of a permanent injunction but, at this point, a new trial judge had been assigned to the case. After hearing the evidence, the trial court dissolved the temporary injunction, denied a permanent injunction, and awarded the defendants nominal damages and substantial attorney fees. In support of its decision, the district court stated:

" 'Whereas, the temporary injunction statute prior to 1988 had made the procurement of a surety bond a condition precedent to an effective temporary injunction, the statute, in its current state, makes the procurement of a surety bond merely a procedural tool for use by the trial judge. The substantive right to recover damages and attorney fees has always been a part of the statute, and, probably, within the inherent equitable powers of the Court. The current statute simply makes it optional as to whether or not the trial judge wants to secure the payment of the same with a surety bond.' " 25 Kan. App. 2d at 795-96, 972 P.2d 787.

The plaintiff in Brady appealed and, like the State does in this case, argued on appeal that K.S.A. 60-905(b) only allows the award of damages and attorney fees where a bond is ordered to secure the potential damage and attorney fees. A panel of our court reviewed the history of K.S.A. 60-905(b) and found:

"To adopt Brady's interpretation would impose nonsensical results. For instance, under [Brady's] argument[,] ... if the bond was waived or if the State was asking for an injunction, the party enjoined would never have an opportunity to collect damages or attorney fees. We conclude that is not what the 1988 amendment was designed for. That amendment changes only that the 'undertaking of a surety' is not always required, not that damages and attorney fees may not be recovered when the undertaking of a surety is not possible or is waived." 25 Kan. App. 2d at 796, 972 P.2d 787.

The State argues the holding in Brady is distinguishable based on the facts; specifically, the district court used its discretion under K.S.A. 60-905(b) to waive the bond requirement for the plaintiff in Brady but in this case the district court was statutorily required to waive the bond requirement because the plaintiff was the State. We find this distinction makes no difference to the issue before the court. The question as presented by the State is whether damages and fees incurred as the result of a wrongful temporary injunction order are recoverable under K.S.A. 60-905(b) in the absence of an injunction bond. The language used by the Legislature in the statute does not reflect an intention to deny an injured party recovery for a wrongful injunction in the event an injunction bond was not posted. If that had been its intent, the Legislature presumably would have said so in the statute. In fact, it appears the Legislature amended the statute to conform to its primary purpose, "which contemplates that when a party obtains the extraordinary remedy of a temporary injunction and thereby temporarily deprives another of a right, the party should be responsible for any damages that arise if the restraint is wrongful." Idbeis , 285 Kan. at 499, 173 P.3d 642. If anything, the Legislature may have amended the statute to exempt the State from the injunction bond requirement because the State always has sufficient resources to pay any expenses and attorney fees caused by wrongful temporary injunctions. And by providing the district court with discretion to determine whether to waive the bond requirement, the Legislature allows the court to review the sufficiency of a private party's resources on a case-by-case basis.

The plain language of K.S.A. 60-905(b) does not predicate the recovery of damages on the posting of a bond; accordingly, the State's argument on this issue fails.

3. Reasonableness of attorney fees awarded

Because we have found that neither sovereign immunity nor the injunction-bond rule prohibits the district court from awarding Defendants attorney fees under K.S.A. 60-905(b), we now must determine whether the district court's award was reasonable. "In cases where a district court has authority to award attorney fees, that decision is reviewed for abuse of discretion. A party challenging such an award must show that no reasonable person would agree with the district court's decision or that the decision was not supported by substantial competent evidence. [Citation omitted.]" Estate of Kirkpatrick v. City of Olathe , 289 Kan. 554, 572, 215 P.3d 561 (2009). Defendants argue that the State has failed to make such a showing.

An award of attorney fees pursuant to K.S.A. 60-905(b) is "limited to those actually and proximately resulting from the effect of the temporary injunction itself, as opposed to litigation expenses independent of the temporary injunction." Idbeis , 285 Kan. at 494, 173 P.3d 642. The party making the claim for attorney fees must show that the expenses were reasonable and necessary to obtain the dissolution of the temporary injunction. See Miner v. Kirksey , 113 Kan. 715, Syl. ¶ 2, 216 P. 284 (1923).

To evaluate the reasonableness of a party's claim for attorney fees, a district court "should consider the eight factors set forth in KRPC [Kansas Rule of Professional Conduct] 1.5(a)." Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 169, 298 P.3d 1120 (2013). Those factors are:

"(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
"(3) the fee customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
"(8) whether the fee is fixed or contingent." KRPC 1.5(a) (2019 Kan. S. Ct. R. 300).

The district court is considered an expert on the issue of attorney fees and therefore may apply its own knowledge and professional experience in determining the value of services rendered.

And while an appellate court is also considered an expert on the issue of attorney fees, it will not substitute its judgment for that of the district court on the amount of the fee unless in the interest of justice the appellate court disagrees with the district court. Link, Inc. v. City of Hays , 268 Kan. 372, 383, 997 P.2d 697 (2000).

In this case the district court awarded Defendants $ 152,585 in attorney fees, $ 137,937.50 of which went to the Hendricks & Lewis, PLLC law firm and $ 14,647.50 of which went to the Cornwell & Vokins law firm. The district court based that award on a careful review of Defendants' attorney billing logs and the KRPC 1.5(a) factors. Specifically, the district court found that (1) the case was novel and difficult and therefore required significant time and skill to perform the necessary services appropriately; (2) the work in this case precluded the attorneys involved from working on other cases due to the time sensitivity of the action; (3) the hourly rates charged by both firms were within the range of those customarily charged for similar services in Topeka, Kansas; (4) the work required to obtain the result was exceptional particularly in light of the constitutional issues involved; (5) Hendricks & Lewis had a prior relationship with one of the defendants and because it was an out-of-state firm, it was necessary to involve Cornwell & Vokins as local counsel; (6) all of the attorneys involved in the case were highly qualified and experienced; and (7) the fees assessed were based on hourly rates that were reasonable given the nature and uniqueness of the case. Based on a review of the record, we conclude that the district court's findings are supported by substantial competent evidence and that a reasonable person would agree with its award of attorney fees totaling $ 152,585.

Despite this, the State argues that the district court abused its discretion in a number of different ways. First, the State argues that the district court's award of attorney fees violates Idbeis "by awarding attorneys' fees Defendants would have incurred even if the temporary injunction had been denied." See 285 Kan. at 499, 173 P.3d 642 ("[U]nder K.S.A. 60-905 [b], a party injured by a temporary injunction is entitled to only those attorney fees and expenses it would not have incurred but for the temporary injunction and cannot recover for fees that would have been incurred in the litigation even if the temporary injunction had not issued."). Specifically, the State points to $ 12,269 worth of time entries that it claims should have been excluded under Idbeis . Its argument is undercut, however, by the fact that the district court already reduced its award of attorney fees to exclude those that it did not find to be related to either the State's request for injunctive relief or Defendants' motion to vacate it. Again, the district court is considered an expert on the issue of attorney fees and we will not invalidate its judgment unless doing so is necessary in the interest of justice. See Link , 268 Kan. at 383, 997 P.2d 697. In this case, the interest of justice does not require us to invalidate the district court's judgment. For that reason, we find the State's argument that the district court's award violated Idbeis to be unpersuasive.

Second, the State argues that the district court abused its discretion by making an award of attorney fees that was based on excessive hourly rates. In particular, the State points to the hourly rates charged by Hendricks & Lewis and claims that (1) those hourly rates were higher than the prevailing hourly rates for Topeka and northeast Kansas and (2) Defendants provided no basis for the district court to conclude that the higher rates were reasonable. Despite the State's claims to the contrary, Defendants did provide a basis for charging the higher rates; namely, the significant amount of experience and strong national reputation of Hendricks & Lewis as well as the inherent difficulties of being an out-of-state firm that was forced to represent its long-time client and litigate a case in Kansas. Indeed, the district court specifically pointed to those justifications when finding that the hourly rates were reasonable. And again, the district court is considered an expert on the issue of attorney fees. In the absence of a showing that we must do so in the interest of justice, we will not substitute our judgment for that of the district court. See Link , 268 Kan. at 383, 997 P.2d 697.

Finally, the State argues that the district court abused its discretion by making an award of attorney fees that was based on improper billing procedures. Specifically, the State complains that Defendants' attorneys overstaffed and overbilled the case from the outset. As a result, the State argues it was unreasonable and an abuse of discretion for the district court to make an award of attorney fees based on a request that was "chock full" of improper entries. Again, however, the State's argument is undercut by the fact that the district court carefully reviewed the billing records and excised those entries that it deemed to be improper. It is not our place to supplant that decision unless justice so requires. See Link , 268 Kan. at 383, 997 P.2d 697. And when viewed in context, none of the entries that the State complains about require reversal. For the reasons stated above, we find the district court did not abuse its discretion in the amount of attorney fees it awarded Defendants under K.S.A. 60-905(b).

4. Appellate fees and costs

After oral argument, Defendants filed a motion requesting attorney fees and other expenses incurred in this appeal. Defendants rely on K.S.A. 60-905(b) as legal authority to support their request for fees and costs on appeal.

An appellate court may award attorney fees for services on appeal in a case in which the district court had authority to award attorney fees. Supreme Court Rule 7.07(b)(1) (2019 Kan. S. Ct. R. 50). Interestingly, whether the district court had authority to award fees was the issue in two of the three claims presented by the State on appeal. As set forth in detail above, we already have determined that the district court had authority to award fees under K.S.A. 60-905(b) ; accordingly, we also have that authority. See Supreme Court Rule 7.07(b)(1). Because Defendants' appellate attorney fees were occasioned entirely by the State's decision to appeal the district court's decision regarding its authority to award fees, we find an award of appellate attorney fees is justified. We now must decide whether the attorney fees and costs requested are reasonable.

As required, counsel for Defendants have provided this court with an itemized listing of the fees and expenses they request. The list indicates the person performing the work, the time involved, an hourly rate, and a brief description of the task. As also required, Defendants have provided this court with an analysis of the eight criteria set forth in KRPC Rule 1.5(a) to support their claim that the requested fee is reasonable and, therefore, ethically proper.

We have reviewed the itemized listing of fees and expenses and have grouped them into the following categories:

FEES Research and draft appellate brief $ 84,557.50 Prepare for and attend oral argument $ 7,120.00 Travel to and from Topeka for oral argument $ 5,837.50 Research and draft motion for appellate fees $ 1,795.00 Miscellaneous motions and tasks $ 695.00 _____________________________________________________________ TOTAL FEES $ 100,005.00 EXPENSES Mileage to and from Topeka $ 162.52 Filing Fee - Motion for Pro Hac Vice $ 101.50 _____________________________________________________________ TOTAL EXPENSES $ 264.02 TOTAL FEES AND EXPENSES $ 100,269.02

Although the total sum of the itemized list of fees and expenses is $ 100,269.02, Defendants are not requesting this total sum. In their motion, Defendants state that "Mr. [Yale] Lewis has reduced his fee request by 50-percent, is not seeking reimbursement for airfare between Seattle, Washington and Kansas City, nor is he seeking reimbursement for hotel accommodations in Lawrence, Kansas."

The affidavit submitted by Mr. Lewis reflects that he spent 186.6 hours conducting research, drafting the appellate brief, travel, and presenting oral argument. However, when added together, the hours listed on the affidavit actually total 174.8. Mr. Lewis charged $ 475 per hour for his services, which is a total of $ 88,030 in fees. Based on Mr. Lewis' unilateral offer to reduce his fee by half, his modified request is $ 41,515.

The affidavit submitted by Tai Vokins reflects that he, Krystal Vokins, and various paralegals spent 83.5 hours conducting research, drafting the appellate brief, travel, presenting oral argument, drafting motions, and completing other related tasks. Tai Vokins charged $ 250 per hour, Krystal Vokins charged $ 200 per hour, and the paralegals charged $ 75 per hour, which is a total of $ 16,975 in fees. Mr. Vokins also requests $ 264.02 in expenses for mileage and for the pro hac vice fee. All told then, Defendants are requesting $ 58,490 in appellate fees and $ 264.02 for appellate expenses, for a grand total of $ 58,754.02.

The State vigorously opposes Defendants' motion for appellate fees and costs, arguing that the statute does not provide for such fees and even if it did, the appellate fees requested are not reasonable. We already have held that the statute provides for such fees so we turn to the State's second issue, the reasonableness of the amount requested. As set forth above, a court should consider the eight factors set forth in KRPC 1.5(a) in evaluating the reasonableness of an award of attorney fees.

We begin our analysis with the decision by Mr. Lewis to request only one-half the amount of hours he claims he spent researching and drafting the appellate brief in this matter. Although he cut his hours in half, the itemized billing records he submitted to the court in support of his request for fees reflect the time he spent before he reduced the amount of fees he requested. By doing so, Mr. Lewis effectively has made it impossible for this court to evaluate the reasonableness of the time reflected in the billing statement he submitted to the court. For example, the court may reduce the reasonable hours awarded if the number of compensable hours claimed by counsel includes hours that were unnecessary, irrelevant, and duplicative. We find the premodified billing statement presented by Mr. Lewis reflects many duplicative entries and perhaps excessive time billed. And again, Mr. Lewis has failed to provide a modified billing statement reflecting the reduced amount of hours he now requests for fees. The modified billing statement is necessary for us to properly evaluate the reasonableness of the modified fee requested. The modified billing statement would have had to include a description of the work he performed and the time involved for the fee requested , as opposed to hours he worked for which he is not requesting an award of fees.

With regard to the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, we find the issue presented on appeal to be novel and fairly difficult. Significantly, however, the issue presented on appeal was the exact same issue presented to the district court. In fact, the parties submitted to the district court approximately 257 pages in pleadings, arguing their respective positions on the issue. In addition, the court held a hearing on the issue as reflected by the record in 26 pages of transcript.

In addition to the attorney fee issue being heavily litigated below, we note the district court filed a well-reasoned and thorough memorandum decision and order on the attorney fee issue, which addressed each of the arguments made by the parties in their briefs on appeal.

Based on the eight factors set forth in KRPC 1.5(a), we find the $ 58,490 in attorney fees requested for work on this appeal to be excessive. In support of our finding, we note the issue in this appeal already had been extensively litigated through written motions and oral argument at the district court level. We also note the lack of sufficient information to evaluate the reasonableness of Mr. Lewis' reduced fee request. In addition, we find the fees requested for time spent to travel to oral argument is excessive. Finally, we find unreasonable the fees request for time spent to prepare the three motions for an extension of time to file Defendants' appellate brief. In the absence of evidence to the contrary, such motions are for the convenience of counsel and their schedule. Because some of the entries in the affidavit submitted by Mr. Vokins include time spent on motions for extension of time as well as an additional task, we have calculated the total of those entries and credited half that amount to time spent on motions for extension of time and the other half to time spent on other tasks. For all of these reasons, we award to Defendants the sum of $ 15,450 in appellate attorney fees and the sum of $ 264.02 in expenses associated with this appeal. The award totals $ 15,714.02.

The decision of the district court awarding fees to Defendants is affirmed in its entirety, and Defendants' motion for appellate attorney fees and expenses is granted in part and denied in part.


source: Caselaw Access Project

author: Gardner, J.:

license: Public Domain

text:
    In the MATTER OF the MARRIAGE OF
    Rebecca E. BAHLMANN, Appellee, and Bruce F. Bahlmann, Appellant.
    No. 120,019
    Court of Appeals of Kansas.
    Opinion filed April 5, 2019.
    Trey McGrew-Bryant, of Seaton, Seaton & Dierks, LLP, of Manhattan, for appellant.
    Kitra R. Schartz, of Morrison, Frost, Olsen, Irvine & Schartz, LLP, of Manhattan, for appellee.
    Before Bruns, P.J., Schroeder and Gardner, JJ.
   Gardner, J.:

Bruce F. Bahlmann appeals the district court's dismissal of his motion to modify child custody. He contends that the court failed to consider the facts alleged in his motion as true and failed to give him adequate notice of a hearing on Rebecca Bahlmann's motion to dismiss his motion. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When Rebecca filed for divorce from Bruce she received ex-parte temporary orders for custody and parenting time. Bruce then filed several motions seeking to modify the ex-parte orders. The court heard those motions, held a final hearing on the divorce and custody matters, and then adopted Rebecca's parenting plan. After the court's written decision, the parties remained contentious and continued to litigate custody.

Two motions underlie this appeal. First, Bruce moved to modify child custody and for custody evaluation a little over a year after the court's written decision. He claimed a material change in circumstances warranted a change in their parenting plan and custody. He alleged that Rebecca had become physically and emotionally abusive toward the children since custody was last determined and that both children's grades had suffered since the parenting plan began, making their daughter academically ineligible to participate on the cross-country team.

Second, Rebecca moved to dismiss Bruce's motion. Rebecca denied any material change in circumstances and alleged it would not be in the children's best interests to live with Bruce. She denied Bruce's allegations of physical and emotional abuse, asserted that the children's grades had not suffered, and stated that their daughter was on the honor roll. Rebecca also alleged that the court had heard Bruce's complaints before and that the parties had already litigated these issues.

The parties were set to mediate Bruce's motion, but the court sua sponte changed the order from mediation to conciliation. This prompted the parties to file a joint motion for mediation, and Bruce's attorney filed a notice of hearing for that motion.

Rebecca appeared at that hearing in person with her attorney, but Bruce appeared only through his attorney. The first issue the court addressed in the hearing, however, was not the joint motion for mediation but Bruce's motion to modify custody and Rebecca's motion to dismiss that motion. The court discussed Bruce's allegations and Rebecca's responses to them, noting that Bruce's allegations lacked specific times and dates. Bruce's attorney noted that although the motion lacked specific dates, it alleged that the changes had occurred since the last custody determination. He asserted that the court should consider the alleged facts in the light most favorable to Bruce. The district court dismissed Bruce's motion, finding it failed to state facts with specificity and did not show a material change in circumstances. That ruling mooted the parties' joint motion for mediation. Bruce appeals.

DID THE DISTRICT COURT USE THE WRONG STANDARD IN EVALUATING REBECCA'S MOTION TO DISMISS ?

The district court dismissed Bruce's motion to modify child custody and motion for custody evaluation, finding that the motion failed to state with specificity facts that rose to the level of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3218. Bruce argues that the district court erred by considering opposing allegations in Rebecca's motion to dismiss and by failing to accept his factual allegations as true.

Our Standard of Review

Given the district court's unique vantage point of what is often an emotionally charged situation in child custody disputes, an appellate court generally will not overturn such decisions unless the court abused its discretion. See Harrison v. Tauheed , 292 Kan. 663, 672, 256 P.3d 851 (2011). When a party challenges the evidence underlying the district court's decision regarding custody, "this court reviews the evidence in a light most favorable to the prevailing party below to determine if the court's factual findings are supported by substantial competent evidence and whether those findings support the court's legal conclusion." In re Marriage of Vandenberg , 43 Kan.App.2d 697, 704, 229 P.3d 1187 (2010). This court cannot reweigh evidence, pass on witness credibility, or redetermine questions of fact. 43 Kan.App.2d at 705, 229 P.3d 1187.

Here, however, the district court did not hold an evidentiary hearing on Bruce's motion to modify child custody and instead granted Rebecca's motion to dismiss that motion. Bruce contends that under these circumstances, the district court and this court on review must assume all factual allegations in Bruce's motion are true. In support of that proposition, however, Bruce cites only to civil cases dismissed for failure to state a claim at the pleading stage before any evidence was presented, namely Cohen v. Battaglia , 296 Kan. 542, 546, 293 P.3d 752 (2013) ; Campbell v. Husky Hogs , 292 Kan. 225, 227, 255 P.3d 1 (2011) ; and Halley v. Barnabe , 271 Kan. 652, 656, 24 P.3d 140 (2001).

We have applied that pleading standard to a motion to modify child custody at least once. See In re Marriage of Uehling , No. 116466, 2017 WL 1369958, at * 2 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1318 (2017) (finding that the court's dismissal of a motion to modify based on the pleadings and without an evidentiary hearing was "akin to granting a motion to dismiss, which means we assume the factual allegations contained in the motion are true").

But we do not do so here. As we discuss below, the district court had good reason not to assume the truth of all the factual allegations in Bruce's motion. And a motion is not a pleading. See K.S.A. 2018 Supp. 60-207(a) (listing the only pleadings allowed); (b) (listing requirements for motions and other papers). Bruce has not shown why we should apply the same standard to Rebecca's motion to dismiss his posttrial motion to modify that we apply to a pretrial motion to dismiss a pleading. We assume the factual allegations in a motion to dismiss a pleading are true because no evidence has been presented, the case has just begun, and generally, the only issue is the legal sufficiency of the pleading in stating a claim upon which relief may be granted. See, e.g., Platt v. Kansas State University , 305 Kan. 122, 126, 379 P.3d 362 (2016). Yet the procedural posture of a motion to modify child custody is significantly different. Bruce and Rebecca filed their pleadings long ago and then presented evidence at trial. The district court weighed that evidence, made credibility calls, and issued a final order in the case. Bruce later moved to modify that final order, Rebecca responded by seeking to dismiss Bruce's motion, and the district court dismissed the motion. What happened here is more akin to the court dismissing Bruce's posttrial motion for a new trial based on newly discovered evidence than it is to a court dismissing a pleading before any evidence has been presented. See K.S.A. 2018 Supp. 60-259(g) (requiring a movant for a new trial based on newly discovered evidence to present evidence by affidavit or by declaration under penalty of perjury); State v. Laurel , 299 Kan. 668, 676, 325 P.3d 1154 (2014) (requiring such a movant to show, in addition to other things, that the evidence is of such materiality that it would be likely to produce a different result upon retrial); State v. Warren , 302 Kan. 601, 615, 356 P.3d 396 (2015) (finding the district court must assess the credibility of the newly proffered evidence in determining whether that evidence is material).

We exercise unlimited review in determining whether a plaintiff has presented a prima facie case. See Becker v. Knoll , 291 Kan. 204, 206, 239 P.3d 830 (2010) ; In re Marriage of Novacek , No. 118628, 2018 WL 3320195, at *8 (Kan. App. 2018) (unpublished opinion) (applying unlimited review in the context of whether a movant made a prima facie case of material change of circumstances in a child custody case); In re Marriage of Uehling , 2017 WL 1369958, at *2 (same). We apply this standard here. Accordingly, we exercise de novo review of Bruce's motion. A prima facie showing is one "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it [may] later be proved to be untrue." Black's Law Dictionary 1382 (10th ed. 2014). Cf. Frick Farm Properties v. Kansas Dept. of Agriculture , 289 Kan. 690, Syl. ¶ 1, 216 P.3d 170 (2009) (finding "[p]rima facie evidence is evidence sufficient to sustain a verdict in favor of the issue it supports, even though it may be contradicted by other evidence"). This is similar but not identical to the pleading standard Bruce suggests.

The Statutory Requirements

The foremost consideration in any custody determination is a placement that is in the best interests of the child. In re Marriage of Vandenberg , 43 Kan.App.2d at 701, 229 P.3d 1187. A decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. Simmons v. Simmons , 223 Kan. 639, 642, 576 P.2d 589 (1978). Yet a district court "may change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown." K.S.A 2018 Supp. 23-3218(a).

This statute requires a party who moves a district court to modify its previous decision on custody, residency, and parenting time, to file a motion stating

"with specificity in the verified motion, or in an accompanying affidavit, all known factual allegations which constitute the basis for the change of custody or residential placement. If the court finds that the allegations set forth in the motion or the accompanying affidavit fail to establish a prima facie case, the court shall deny the motion. If the court finds that the motion establishes a prima facie case, the matter may be tried on the factual issues." K.S.A. 2018 Supp. 23-3219(a).

The statute requires both sworn testimony and specificity. Bald conclusions, mere affirmations of belief, or suspicions are thus insufficient to make a prima facie case of a material change in circumstances.

The purpose of requiring verification is shown by the contents of the verification itself: to assure the court that what is stated in the document is true. See K.S.A. 53-502(c) (providing " '[v]erification upon oath or affirmation' means a declaration that a statement is true made by a person upon oath or affirmation"). This serves the same purpose as an affidavit, which is to assure the court that the affiant is willing to swear to the truthfulness of the facts asserted. See Simpson and Selden, The Truth About Affidavits , 11 App. Advoc. 7, 10 (1998) (noting "[t]he purpose of an affidavit is to ensure the efficient admission of truthful evidence of personally known facts"). A statutory requirement that a document be supported by affidavit or verification not only assures the truthfulness of the document but also discourages claims lacking merit. See Crosby v. County of Spokane , 137 Wash.2d 296, 301, 971 P.2d 32 (1999) (regarding application for writ of certiorari).

By requiring that a movant file a "verified motion, or ... an accompanying affidavit," K.S.A. 2018 Supp. 23-3219(a) requires evidentiary proof, not merely unsupported factual allegations:

"In [his] petition, he not only made allegations of fact, he arguably provided proof of any allegations he had made because he verified his petition-meaning he swore an oath that the contents of the petition were 'true and correct.' This court has long held that a 'petition verified, positively, and not on information and belief, is, in effect, an affidavit.' Atchison v. Bartholow , 4 Kan. 124, 128, 1866 WL 457 (1866). And we have allowed the use of a verified petition as evidence as long as it was not 'verified on information and belief.' State, ex rel. Fatzer v. Molitor , 175 Kan. 317, 325, 263 P.2d 207 (1953)." Sperry v. McKune , 305 Kan. 469, 488, 384 P.3d 1003 (2016).

Matters verified on information and belief do not rise to the level of evidence but are mere unsupported allegations.

"A petition verified on information and belief only is not an affidavit and is not evidence.... The reasoning is simple, a witness would not be permitted from the witness stand to testify to a fact upon his information and belief. By the same token his affidavit on information and belief only will not be given the weight accorded sworn testimony." State, ex rel. Fatzer v. Molitor , 175 Kan. 317, 325, 263 P.2d 207 (1953) (finding a petition verified on information and belief an insufficient base upon which to appoint a receiver).

In addition to requiring sworn testimony and specific facts, the statute requires a showing of material change in circumstances. The party requesting the modification bears the burden of showing a material change in circumstances. Kimbell v. Kimbell , 190 Kan. 488, 490, 376 P.2d 881 (1962). "A material change in circumstances" requires the district court to consider a variety of factors and circumstances. Johnson v. Stephenson , 28 Kan.App.2d 275, 280, 15 P.3d 359 (2000). "[O]ur courts have not been very specific as to what constitutes a material change in circumstances." In re Marriage of Cobb , 26 Kan.App.2d 388, 389, 988 P.2d 272 (1999). Nonetheless, the district court must determine whether the facts sworn to in the motion are material, meaning that these facts have some real bearing on the decision in the case. State v. Haygood , 308 Kan. 1387, 1392, 430 P.3d 11 (2018). And to be considered a material change in circumstances, the change must be of a substantial and continuing nature as to make the prior custody decree unreasonable. In re Marriage of Whipp , 265 Kan. 500, Syl. ¶ 3, 962 P.2d 1058 (1998).

Requiring a material change in circumstances is for good reason:

"A twofold policy underlies the material change in circumstance rule. First, a reasonable degree of stability in a child's important relationships contributes to the emotional, intellectual, and moral development of the child. Second, the court generally favors one-time adjudication of matters and opposes repetitive actions. Johnson v. Stephenson , 28 Kan.App.2d 275, 280, 15 P.3d 359 (2000), rev. denied 271 Kan. 1036 (2001)." In re Marriage of Lehner , No. 96698, 2007 WL 1667115, at *8 (Kan. App. 2007) (unpublished opinion).

Those policies are well served by K.S.A. 2018 Supp. 23-3219(a)'s requirement that a party who seeks to change a court order of child custody must do so by specific and known factual allegations either in a verified motion or in an affidavit accompanying an unverified motion.

The Motion to Modify Child Custody

With those general principles in mind, we examine Bruce's motion to modify child custody. It was not accompanied by an affidavit but purported to be a verified motion, as the statute permits. See K.S.A. 2018 Supp. 23-3219(a). Bruce's verification of the motion swore that he had read the motion, that he "knows and understands the contents thereof, and that the statements and allegations therein made are true."

The first factual assertion in Bruce's motion was that the parties had entered an agreed parenting plan. Yet that factual assertion was one the district court could not accept as true. The district court had held an eight-hour evidentiary hearing on the matter, which the court characterized as "highly contested." The district court's order correctly found that the parties had fully litigated the issues of child custody and parenting time at an all-day evidentiary hearing. After hearing the evidence, the district court adopted Rebecca's parenting plan, making it the order of the court. A party seeking to modify child custody based on a prior agreement of the parties incorporated into the divorce decree does not have to show a material change of circumstances when there has never been a prior court hearing held on child custody. See In re Marriage of Jennings , 30 Kan.App.2d 860, 863-64, 50 P.3d 506 (2002). Instead, in that situation, the court may modify an agreement simply based on the best interests of the child. See 30 Kan.App.2d at 862-63, 50 P.3d 506. But that was not Bruce's situation. Because no agreed parenting plan had been entered, Bruce bore the burden to show a material change of circumstances in addition to the best interests of the children. Bruce's first factual statement in his motion was not only inaccurate, it was materially so.

Bruce's motion next alleged that since the parenting plan had been entered, a material change in circumstances had occurred and it would be in the children's best interests for him to have primary residential custody and for Rebecca to have limited and supervised parenting time. This assertion is merely introductory and conclusory, and largely repeats the legal standard necessary for such motions.

Bruce's motion then made four assertions to show a material change in circumstances:

"a) "Upon information and belief, [Rebecca] has physically and emotionally abused the children since custody was last determined. The children have been slapped to the point their nose bled and [Rebecca] pokes, slaps, pinches, scratches, and 'fist pushes' the children.
"b) Upon information and belief, [Rebecca] berates the children in front of their friends. One such incident occurred at a child's track meet. [Rebecca] became upset that the child didn't recognize that [she] was cheering on the child from the stands during the race. [Rebecca] unnecessarily confronted the child in front of all of her friends at the conclusion of the race in a manner not in the child's best interest, but solely in the interest of [Rebecca]. Upon returning home an argument ensued and [Rebecca] slapped the child so hard that the child began to cry. When the child tried to move away from [her], [Rebecca] dug her nails into the child's shoulder and dragged her back towards [her.]
"c) Since the prior Parenting Plan, both children's grades have been greatly challenged and several of their grades substantially fell. When [Bruce] is exercising parenting time, the parties' son often forgets, or is directed, to not bring his homework with him. Both children have fallen behind on their school work. Daughter was declared academically ineligible for cross country. [Bruce] believes that [Rebecca] is not spending adequate time with the children on their studies and actively encourages the children not to do their homework with [Bruce].
".... [Bruce] is cut out of school activities due to lack of notice by [Rebecca], is not a part of enrollment or class selection, and has had zero say in the medical decisions related to the children."

The first two factual allegations were admittedly not based on Bruce's personal knowledge-instead they were based "upon information and belief." That portion of the motion consists of mere allegations even though the motion itself was verified under oath. See Aeroflex Wichita, Inc. v. Filardo , 294 Kan. 258, 276, 275 P.3d 869 (2012) (examining a verified petition). But the statute requires the movant to set forth "all known factual allegations which constitute the basis for the change of custody or residential placement." K.S.A. 2018 Supp. 23-3219(a) ; see In re Marriage of Ziebart , No. 117293, 2018 WL 1545786, at *7 (Kan. App. 2018) (unpublished opinion) (finding " K.S.A. 2016 Supp. 23-3219 [a] ... acts as a gatekeeper requiring verified facts to be alleged with specificity and requires a court to deny the motion if it fails to allege a prima facie case for a change of legal or residential custody"). Bruce's allegations of physical and emotional abuse were based on information and belief and were not verified factual assertions-they fail to meet the statutory requirement of sworn evidence.

We have not often addressed the requisite evidentiary basis for a motion to change child custody. But we have often addressed the necessary evidentiary basis for affidavits in the criminal context. Affidavits are usually based on one's personal knowledge of the facts stated in the document. But they may be based on hearsay in some circumstances. "[W]hile [a search warrant] affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to an affiant's personal knowledge to provide a rational basis upon which a magistrate can make a determination of probable cause." State v. Hicks , 282 Kan. 599, 614, 147 P.3d 1076 (2006).

Those requirements, of course, do not apply here. But the underlying rationale is the same. If a verified motion or an affidavit in support of a change of custody motion is based on hearsay, such as a statement made by one's child, it must contain sufficient affirmative allegations of fact about the movant's personal knowledge to provide a rational basis on which the district court can determine whether the movant has met the statutory requirements. The district court cannot be faulted for considering in its prima facie determination the movant's admitted lack of personal knowledge of the facts alleged.

But even if Bruce's factual allegations had been sufficiently sworn and based on his personal knowledge, his motion would still not have met the statutory standard. His allegations of Rebecca's physical and emotional abuse were substantial and perhaps continuing, but they were not specific as to time, place, or other circumstances. The same is true for Bruce's allegation that Rebecca berates the children in front of their friends. These are conclusory assertions or opinions which the court must disregard. Only the sworn facts of a verified motion, as distinguished from mere conclusory allegations, must be accepted as true. See Aeroflex , 294 Kan. at 278, 275 P.3d 869 (examining verified petition and affidavits in reviewing whether a plaintiff had made a prima facie showing that the defendant had committed a tortious act in Kansas). And Bruce's allegation about the track meet incident, even if specific and substantial, was about a one-time event, not of a continuing nature. Declining grades, although concerning to parents, can be due to many causes. Bruce's allegations about grades and homework issues are not sufficiently substantial or specific to warrant a hearing on a motion to modify child custody.

But even if Bruce's facts were properly sworn and specific enough, Bruce failed to show they constituted a material change in circumstances. The district court found, to the contrary, that some or all the issues Bruce alleged in his motion had been previously litigated, saying it was "unable to determine whether any of these allegations raised in the motion took place before the hearing." It specifically noted Bruce's "whole deal of notice at the school," "issues of abuse," and "issues of school," were among the many issues the parties had litigated during the prior evidentiary hearing. Bruce does not dispute that finding on appeal. Bruce cannot meet his burden of establishing a prima facie case with the same evidence the trial court previously considered and rejected.

Before concluding that Bruce had failed to state the facts with specificity, the district court noted that Rebecca denied the abuse and said their daughter was on the honor roll. It stated: "You can't be on the honor roll and be declared academically ineligible." Bruce argues that this comment, among others, shows that the district court did not accept the allegations in his motion as true but relied on Rebecca's motion and weighed the competing factual allegations in her favor. We agree that the district court erred in this respect and should have based its decision about a prima facie case solely on the sworn facts in Bruce's verified motion. See K.S.A. 2018 Supp. 23-3219(a) ("If the court finds that the allegations set forth in the motion or the accompanying affidavit fail to establish a prima facie case, the court shall deny the motion. If the court finds that the motion establishes a prima facie case, the matter may be tried on factual issues." [Emphasis added.] ).

But we find no reversible error. Our review is de novo. Having reviewed the motion ourselves, we find that even if we consider only Bruce's motion and consider all its sworn facts as true, the factual assertions fail to make a prima facie case of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3219(a). Because Bruce failed to make a prima facie case, the district court did not need to conduct an evidentiary hearing. See K.S.A. 2018 Supp. 23-3219(a). Thus, no reversible error has been shown.

DID THE DISTRICT COURT ERR BY HEARING THE MOTION TO DISMISS WITHOUT PROVIDING NOTICE TO THE PARTIES ?

Bruce next contends that the district court committed reversible error by dismissing his motion to modify child custody at a hearing which noticed only the parties' joint motion for mediation and at which he was not present. This, he contends, violated his right to due process. Rebecca responds that Bruce did not raise the issue of improper notice at the time of the hearing and that under the circumstances, no hearing or notice of hearing on his motion was necessary.

This matter is governed by our statutes and court rules. Bruce relies on K.S.A. 2018 Supp. 60-206(c)(1), which generally provides that a written motion and notice of the hearing must be served at least seven days before the time specified for the hearing. But Kansas Supreme Court Rule 133(c) (2019 Kan. S. Ct. R. 204) specifies that when neither party requests oral argument, the court may either set the matter for hearing or rule on the motion without a hearing and communicate the ruling to the parties. That is what happened here.

"(c) Oral Argument . The following rules govern oral argument and rulings on motions.
(1) When Oral Argument is Requested . A party may request oral argument-either in the motion or in a response filed by the adverse party under subsection (b). The court must grant a timely request for oral argument unless it states in the ruling or by separate communication that oral argument would not aid the court materially.
(2) When Oral Argument is Not Requested . If no party requests oral argument, the court may:
(A) set the matter for hearing; or
(B) rule on the motion immediately and communicate the ruling to the parties." Rule 133 (c) (2019 Kan. S. Ct. R. 205).

Neither party requested oral argument of either Bruce's motion to modify child custody or of Rebecca's motion to dismiss, so the district court had the authority under Supreme Court Rule 133(c)(2)(B), after waiting the seven-day response time, to rule on both motions without any hearing. It did so.

The district court addressed the motion to dismiss during a hearing that had been noticed for the parties' joint motion for mediation. This is not ideal but neither is it reversible error. The district court did not need to notice a hearing because it had the power to rule on Bruce's or Rebecca's motion immediately and to communicate the ruling to the parties. Because dismissal of Bruce's motion to modify was warranted, no need to mediate that motion existed. Bruce was not prejudiced because the district court had no duty to hold a hearing either on his motion to modify or on Rebecca's motion to dismiss, and Bruce had ample opportunity to request a hearing on both or either motion yet chose not to do so. Under these circumstances, where the district court complied with both the statute and Supreme Court Rule 133(c)(2)(B), no due process violation has been shown.

Affirmed.