source: Caselaw Access Project

author: Green, J.:

license: Public Domain

text:
    Stephen M. DETERS and Donna K. Deters, Appellants, v. NEMAHA-MARSHALL ELECTRIC COOPERATIVE ASSOCIATION, INC., and Alliance Indemnity Company, Appellees.
    No. 119,200
    Court of Appeals of Kansas.
    Opinion filed May 24, 2019.
    William C. O'Keefe, of O'Keefe Law Office, of Seneca, for appellants.
    Glenda Cafer and Terri Pemberton, of Cafer Pemberton LLC, of Topeka, for appellee Nemaha-Marshall Electric Cooperative Association, Inc.
    Joel W. Riggs, of Larson & Blumreich, Chartered, of Topeka, for appellee Alliance Indemnity Company.
    Before Leben, P.J., Green and Powell, JJ.
   Green, J.:

Stephen M. Deters and Donna K. Deters appeal from the judgment of the district court granting Nemaha-Marshall Electric Cooperative Association, Inc.'s (Nemaha-Marshall) and Alliance Indemnity Company's (Alliance) respective motions for summary judgment. On appeal, the Deters argue that the district court erred by ruling that their claims against Nemaha-Marshall were barred under the statute of repose, K.S.A. 60-513(b). The Deters further argue that the district court erred by ruling that their homeowner's insurance policy with Alliance did not cover their claims for damages.

Nevertheless, we conclude that the Deters' arguments are unpersuasive. As a result, we affirm the district court's orders of summary judgment.

Uncontroverted Facts

The following facts are uncontroverted for purposes of this appeal: The Deters live in Nemaha County, Kansas, and receive electricity from Nemaha-Marshall. Stephen has lived on the same land in Nemaha County his entire life.

In 1994, the Deters bought a "Ronk GTS" from Nemaha-Marshall. A GTS "allows a customer to safely connect a generator to his or her household wiring." Thus, if the utility power goes out, or a utility customer simply wants to use the generator, the utility customer has a generator backup. Nemaha-Marshall installed the GTS at the Deters' electric pole. Although Nemaha-Marshall installed the GTS, the Deters owned the GTS outright.

While living in their current house, the Deters started constructing a new house on their land. The Deters purchased and installed a heat pump in the new house in 1998 (original heat pump). The Deters also purchased and installed an oven, microwave, dishwasher, washing machine, and dryer in the new house in 1999.

In January 2000, the Deters moved into the new house. In the summer of 2000, the Deters removed their old house from their land. In addition to their new house, the Deters had a shop, implement shed, and a partial barn on their land. The new house, shop, and implement shed all received electricity.

Nemaha-Marshall connected the GTS to the shop and implement shed sometime in 1994 or 1995. Nemaha-Marshall connected the GTS to the new house sometime between 1996 and January 2000. Nemaha-Marshall charged the Deters for labor, a truck roll, and pigtails-a term for a device used to connect electrical wires-on November 7, 1997. Nemaha-Marshall never charged the Deters for work related to the GTS following 1997.

On May 28, 2010, the Deters' original heat pump stopped working. They installed a new heat pump on September 27, 2010. The Deters believed that this heat pump was defective. In October 2011, the Deters replaced this heat pump with another heat pump. Thus, the heat pumps were replaced twice: Replacement heat pump #1 and replacement heat pump #2.

After their original heat pump stopped working in May 2010, the Deters filed an insurance claim with their insurer Alliance. The Deters alleged that an electrical event damaged the original heat pump. At first, the Deters asserted that the wiring on the original heat pump caused the heat pump to fail from low voltage. Eventually, though, the Deters asserted that lightning damaged the original heat pump.

Ghattas Bitar, an independent engineer retained by Alliance, examined the heat pump's compressor, as well as photos of the heat pump. Bitar explained that the heat pump showed no signs of suffering an "electrical surge event." Instead, there were "signs of arcing and copper globules/balls ... on the rotor and the stator of the compressor indicating severe failure of the windings insulation." Bitar determined that "the failure of the windings' insulation was due to the compressor running hot as a result of low level of refrigerant." Based on this, Bitar concluded that the heat pump underwent "prolonged electrical failure" while running on low refrigerant, ultimately resulting in the pump's failure.

Alliance denied the Deters' claim. Alliance notified the Deters that their homeowner's insurance policy did not cover the damage to the original heat pump under Section 1-Perils Insured Against: A. Coverage A-Dwelling and Coverage B-Other Structures, (6)(a) and (b), which stated that Alliance did not cover losses caused by "[w]ear and tear, marring, deterioration" or "[m]echanical breakdown ...."

The Deters also experienced some problems with some appliances during 2010. "[B]y November 2010," an electrical event damaged the Deters' oven, microwave, dishwasher, washing machine, and dryer. The Deters replaced only some of their appliances.

On January 16, 2013, the Deters made a claim against Alliance for replacement of heat pumps #1 and #2. The Deters alleged that they were entitled to compensation for damage to the replacement heat pumps from low voltage. Since Alliance denied the Deters' claim for damage on their original heat pump, the Deters had purchased an equipment breakdown policy.

Derek Geer, an independent engineer retained by Alliance, examined replacement heat pump #2. This was the only heat pump available for examination since the company the Deters bought replacement heat pump #2 from had already removed replacement heat pump #1. Geer determined that "[n]o indications of low voltage were observed." Geer noted that the Nemaha-Marshall's "electronic monitors have reported no low voltage events ...." He noted that there "was no electrical or physical damage observed in the heat pump control compartment." Moreover, he explained that the heat pump's voltage output was normal when he tested it while running other equipment. Geer determined that any issues with replacement heat pump #2 would resolve upon further breaking in of the new unit and installing a "hard start kit," which added "capacitance to the circuit."

In September 2013, while the Deters' insurance claim was still pending, Stephen Deters opened the cover of the GTS. When he did this, he discovered that some load wire connections to the GTS were burned. Based on discoloration of some wires, he also believed that there was evidence of a repair attempt.

On September 17, 2014, at the Deters' request, Nemaha-Marshall replaced the old GTS with a new GTS.

On October 9, 2014, Alliance denied the Deters' pending claim, asserting that they had no coverage under the homeowner's insurance policy for low voltage events. Alliance explained that under the provision on dwellings, their homeowner's insurance policy excluded coverage caused by faulty, inadequate, or defective design, workmanship, repair, construction, or material used in repair or maintenance. It asserted that under the provision on personal property, their homeowner's insurance policy did not include coverage on improper wiring. Moreover, Alliance asserted that the low voltage events did not constitute an "accident" as meant under the Deters' equipment breakdown policy.

On March 16, 2015, the Deters sued both Nemaha-Marshall and Alliance for damages related to the heat pumps and appliances. The Deters argued that Nemaha-Marshall's negligent wiring of the GTS resulted in the destruction or damage of their heat pumps and appliances. In their petition, the Deters alleged that Nemaha-Marshall was negligent from the moment it connected the GTS to their new house. The Deters also argued that Alliance was liable because Bitar and Geer "failed to examine the [GTS] or take any measurements from the connection box to determine if there exist[ed] a cause for low voltage events, and if such low voltage events could be related to how the wires were connected in the connection box." As a result, the Deters argued that Nemaha-Marshall and Alliance were jointly and severally liable for over $ 50,000 of damages relating to the original heat pump, the replacement heat pumps, and appliances.

During discovery, the Deters hired Cris Neagele as their electrical engineer expert. According to Neagele, Nemaha-Marshall's improper wiring of the GTS caused the damage to the Deters' original heat pump and appliances in 2010. Neagele opined that Nemaha-Marshall crimped wires, placed the wires in pigtails, and then inserted the wires in lugs not designed to fit those particular wires. He explained that this practice could "cause excessive heating, corrosion, and high resistance point, which may cause a voltage drop during periods of high current draw." Neagele also believed that discoloration on some wires suggested that somebody had removed, cleaned, and replaced the wires at least once in the past.

During Stephen's deposition, Stephen testified to the following: He testified that he believed Nemaha-Marshall's wiring was responsible for the damage to his original heat pump, replacement heat pumps, and appliances. He testified that the first time he learned about the problem with the GTS was when he opened it in September 2013. He stated that he had no memory of "a service call out to [his] house" where Nemaha-Marshall electrical workers inspected the GTS. He explained that the company from whom he bought replacement heat pump #1 replaced it with replacement #2 at no cost. As a result, he did not have to pay for replacement #2. He explained that since the installation of the "hard start kit" and the new GTS, he had experienced no problems with replacement heat pump #2. He testified that he was unaware of any physical damage to the replacement heat pumps.

Nemaha-Marshall and Alliance moved for summary judgment against the Deters.

Nemaha-Marshall's Summary Judgment Motion

Nemaha-Marshall asserted that even if it were negligent in installing multiple wires in a lug not designed for multiple wires, it was still entitled to summary judgment under the 10-year statute of repose, K.S.A. 60-513(b). Nemaha-Marshall noted that it installed the GTS in 1994, connected the GTS to the shop and implement shed sometime in 1994 and connected the GTS to the new house sometime between 1996 and January 2000. But the Deters did not file their petition alleging that its negligent installation of the GTS harmed their heat pumps and appliances until March 16, 2015. Nemaha-Marshall argued that even if it connected the GTS to the new house in January 2000, the Deters brought their action more than 15 years after its last negligent act giving rise to the Deters' cause of action in this case.

The Deters responded that the district court should deny Nemaha-Marshall's motion because Nemaha-Marshall worked on the GTS in February 2007 and in September 2007 while in Stephen's presence. As a result, the Deters contend that K.S.A. 60-513(b)'s 10-year statute of repose would have started running in September 2007, not January 2000. The Deters produced a Nemaha-Marshall utility meter readout summary from February 2007 and a Nemaha-Marshall invoice for "the antenna wire," dated September 27, 2007, in support of this contention. The Deters also relied on statements made by Stephen in a sworn affidavit about (1) Nemaha-Marshall checking his utility meter and finding no problems in February 2007; and (2) Nemaha-Marshall "check[ing] connections" in September 2007. He further alleged in his affidavit that he saw Nemaha-Marshall employees working on the GTS during the February 2007 service call. Stephen asserted that Nemaha-Marshall came both in February and September 2007 on his request because they had been experiencing brown outs and the heat pump was failing.

Stephen signed the sworn affidavit following his deposition testimony and about a month after Nemaha-Marshall moved for summary judgment.

The district court ultimately granted Nemaha-Marshall's motion for summary judgment:

"In the present case, the Deters' negligence action against Nemaha Marshall is [ ] barred by the 10-year statute of repose as set forth in K.S.A. 60-513(b). According to the Deters, Nemaha Marshall improperly installed multiple wires or conductors in a lug inside the Ronk GTS that was not designed for multiple wires when Defendant provided and installed that piece of equipment at the Deters Property and that such act caused Plaintiffs' property loss. According to Mr. Deters' sworn testimony, he purchased the Ronk GTS, or disconnect switch, from Nemaha Marshall in 1994 and it was placed on the electric pole at the Deters Property when that pole was installed by Nemaha Marshall in 1994. According to Mr. Deters, Nemaha Marshall connected the electric lines running from the Shop or Garage and from the Implement Building or Shed on the Deters Property to the Ronk GTS in 1994 or January 1995. Mr. Deters also testified that Nemaha Marshall connected the electric lines running from the Existing House to the Ronk GTS sometime between 1996 and January 2000, when the Deters moved in their Existing House. While Nemaha Marshall's business records indicate that the Deters were charged for pigtails, and/or labor and a truck roll to the Deters Property in 1997, and that the pigtails charged to the Deters are consistent with parts that could be placed in a GTS or disconnect box, it has no business records that would indicate that it connected the electric lines running from the buildings located on the Deters Property to the Ronk GTS. However, for the purposes of this motion for summary judgment, even if Mr. Deters' testimony is assumed to be true, then Nemaha Marshall's alleged negligent act occurred when Nemaha Marshall allegedly connected the lines running from the Shop or Garage, Implement Building or Shed, and the Existing House to the lug inside the Ronk GTS, or disconnect box, and the latest that such act was done would have been when the Deters moved into their Existing House in January 2000. Plaintiffs did not file their negligence action against Defendant until March 16, 2015, which was more than 15 years after the alleged original wrongful act. Accordingly, Plaintiff's negligence action against Defendant in this case is barred by the 10-year statute of repose as set forth in K.S.A. 60-513(b)."

Next, the Deters moved the district court to alter or amend its summary judgment ruling. The Deters asserted that the district court should reverse its summary judgment ruling based on Bonnette v. Triple D Auto Parts Inc. , 55 Kan. App. 2d 130, 136-37, 409 P.3d 865 (2017), a premises liability case in which this court held that the statute of repose time limits started to run the last day the landowner-defendant could have breached its duty. 55 Kan. App. 2d at 136-37, 409 P.3d 865. Then, the Deters pointed to their interactions with Nemaha-Marshall in 2007 to argue that it filed its petition within the statute of repose time limits. The Deters also stated that Nemaha-Marshall "should be estopped to claim the statute of repose."

The district court denied this motion (1) because it maintained that its original ruling was correct and (2) because Bonnette , as a premises liability case, did not apply.

Alliance's Summary Judgment Motion

Alliance argued that it was entitled to summary judgment because the Deters' homeowner's insurance policy excluded coverage for damage to the original and replacement heat pumps. In making this argument, Alliance relied on the same provisions of the homeowner's insurance policy and equipment breakdown policy as it did when it denied the Deters' claim for the replacement heat pumps.

The Deters responded that the district court should deny Alliance's motion because "any reasonable person would believe that [ ] the continuing losses between 2010 and 2013, all occurring in the same manner and symptom, were the direct physical loss from the same cause, regardless [of] the type of policy coverage in place at the time." The Deters also asserted that Alliance ignored that it had a duty to discover the improper wiring within the GTS when they filed a claim for the failure of the original heat pump.

In the end, the district court granted Alliance's motion. Regarding the original heat pump, as well as the appliances, the district court determined that the Deters were not entitled to coverage under their homeowner's insurance policy because of the following: (1) the Deters never established a direct physical loss to the property as required by their homeowner's insurance policy; and (2) the Deters' homeowner's insurance policy excluded damage from faulty workmanship. The district court further asserted that the evidence the Deters used to support the alleged damage to the original heat pump and appliances was speculative. Regarding replacement heat pumps #1 and #2, the district court ruled that the Deters were not entitled to coverage under their homeowner's insurance policy because "there [was] no evidence that anything ever happened to damage the replacement heat pumps."

Next, the Deters moved the district court to alter or amend its ruling, arguing the district court had not sufficiently addressed if Alliance adequately investigated their claims. The district court denied the Deters' motion, ruling that Alliance had "no legal duty to inspect [the Deters'] property and discover problems in [the Deters'] wiring system."

The Deters appealed the district court's granting of Nemaha-Marshall's and Alliance's motion for summary judgment.

Did the District Court Err by Granting Nemaha-Marshall's Motion for Summary Judgment?

On appeal, the Deters attempt to controvert the facts submitted by Nemaha-Marshall as to when it last worked on the GTS (January 2000), arguing that the last time Nemaha-Marshall worked on the GTS was in dispute because it had worked on the GTS in 2007. As a result, they contend that this restarted the statute of repose time limitations. The Deters conclude that the district court erred by granting Nemaha-Marshall's summary judgment motion because "Nemaha-Marshall's adjustments to the [GTS in 2007] allowed the restart of the statute of repose."

Nemaha-Marshall responds that any 2007 contacts with the Deters are irrelevant because the Deters' cause of action stems from their negligent wiring of the GTS, which occurred no later than January 2000. Nemaha-Marshall also contends that the Deters distort both the facts and caselaw in making their argument that the statute of repose started to run in 2007.

Standard of Review

When reviewing an order of summary judgment, we apply the following standard of review:

" ' "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." ' [Citation omitted.]" Patterson v. Cowley County, Kansas , 307 Kan. 616, 621, 413 P.3d 432 (2018).

When the facts are uncontroverted, we exercise de novo review while considering the district court's granting of a summary judgment motion. Martin v. Naik , 297 Kan. 241, 246, 300 P.3d 625 (2013).

Generally, courts should grant summary judgment in negligence cases only when the question presented involves a question of law. 297 Kan. at 245, 300 P.3d 625. Whether the statute of repose applies is a question of law over which this court exercises unlimited review. Dunn v. U.S.D. 367 , 30 Kan. App. 2d 215, 218, 40 P.3d 315 (2002).

Statute of Repose

K.S.A. 60-513 provides:

"(a) The following actions shall be brought within two years:
....
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
....
"(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action ." (Emphasis added.)

In the past, this court has explained the function of the statute of repose:

"A statute of repose limits the time during which a cause of action can arise and usually runs from the act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time, even though the cause of action may not have yet accrued." Bonnette , 55 Kan. App. 2d 130, Syl. ¶ 3, 409 P.3d 865.

The parties agree that the Deters' claim against Nemaha-Marshall is an action for injury not arising under contract that falls under K.S.A. 60-513(a)(4). Moreover, for purposes of this appeal, Nemaha-Marshall concedes (1) that it negligently installed the Deters' GTS and (2) that its negligence led to damaging the Deters' heat pumps and appliances. But the parties disagree on what act constituted the last act giving rise to the Deters' cause of action.

The Deters contend that this last act occurred in 2007. The Deters believe that the utility meter readout from February 2007 and the antenna wire invoice from September 2007 established that Nemaha-Marshall conducted work on the GTS in 2007. The Deters admit that they never physically saw Nemaha-Marshall work with the GTS wires in 2007. Instead, they contend that Neagele's opinion that someone removed, cleaned, and reinserted the wires in the GTS at some point, supports that the last act occurred in 2007: "Nemaha-Marshall had then been effectively working with [the] wires and pigtails" given Neagele's opinion that the wires had been cleaned and removed at some point. As a result, the Deters argue that their March 2015 petition was timely because they filed it within 10 years of 2007.

Significantly, in making this argument, the Deters never dispute that Nemaha-Marshall first negligently wired the GTS no later than January 2000. Indeed, even in his disputed affidavit, Stephen states that his house was experiencing "low voltage events" before Nemaha-Marshall's February 2007 visit. Thus, we know that the Deters were experiencing low voltage events before Nemaha-Marshall even returned to the Deters' house in 2007 following the initial installation of the GTS. Even so, the Deters ask this court to start the clock for the statute of repose purposes on a date other than when Nemaha-Marshall originally negligently wired the GTS.

But K.S.A. 60-513(b) and our caselaw does not support this interpretation. Under Kansas law it is the last act giving rise to the cause of action, not the last contact between the plaintiff and defendant, that starts the running of the statute of repose clock: "[B]ut in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action ." (Emphasis added.)

In Admire Bank & Trust v. City of Emporia , 250 Kan. 688, 698, 829 P.2d 578 (1992), for example, our Supreme Court held: "The plain language of [ K.S.A. 60-513(b) ] and the applicable case law require that ... a negligence action must be brought within 10 years of the original wrongful act or the action is barred." ( Emphasis added.) 250 Kan. at 698, 829 P.2d 578. In Dobson v. Larkin Homes, Inc. , 251 Kan. 50, Syl. ¶ 1, 832 P.2d 345 (1992), our Supreme Court repeated this exact holding. Moreover, the Dobson case is factually similar to this case. The Dobsons sued their home builder and insurance carrier for the negligent construction of their house. The district court granted the home builder's motion for summary judgment based on the statute of repose. Our Supreme Court upheld the district court's order because the Dobsons sued more than 10 years after the home builder constructed the house. 251 Kan. at 53, 832 P.2d 345.

As a result, Kansas caselaw underscores the point that parties must bring their negligence action within 10 years of the original wrongful act. Despite the preceding caselaw, the Deters cite three cases they believe support their contention that statute of repose "restart[ed]" in 2007: Bonnette , 55 Kan. App. 2d 130, 409 P.3d 865 ; Kaminski v. United States , 218 F. Supp. 3d 1251 (D. Kan. 2016) ; and Dunn , 30 Kan. App. 2d 215, 40 P.3d 315. These cases do not support their argument.

In Bonnette , Bonnette tripped on an unmarked step outside Triple D's store. The district court granted Triple D's summary judgment motion based on the statute of repose because Triple D purchased the store some 25 years earlier. The Bonnette court reversed the district court's summary judgment ruling, holding:

"A landowner or proprietor has an ongoing duty to warn of nonopen and nonobvious dangerous conditions on the premises. Under the facts presented, the last day the defendant could have breached this duty was the day the plaintiff was injured. Accordingly, the plaintiff's claim for failure to warn was not barred by the statute of repose." 55 Kan. App. 2d 130, Syl. ¶ 5, 409 P.3d 865.

In Dunn , a plate glass door injured two students, but the school installed the door over three decades earlier. The school district moved for relief under the statute of repose. This court rejected the school district's argument, determining (1) that the school breached its duty to keep its students safe and (2) that the school's breach of duty was the last wrongful act for statute of repose purposes. 30 Kan. App. 2d at 220, 40 P.3d 315.

In Kaminski , Kaminski fell on ice in a United States Post Office parking lot while trying to enter the Post Office. Kaminski sued the United States for negligence. The United States moved for summary judgment, arguing that the statute of repose barred Kaminski's suit because the downspout that caused the accumulation of ice Kaminski fell on had been in the same place for years. The Kaminski court rejected the United States' statute of repose argument because Kaminski presented reasonable evidence that the drainage conditions in the parking lot had not existed in its current manner for the last 10 years. 218 F. Supp. 3d at 1266.

Unlike this case, Bonnette , Dunn , and Kaminski are premises liability cases. The caselaw on regular negligence actions differ from the caselaw on premises liability negligence actions because in premises liability cases, the landowner or proprietor has an ongoing duty to warn people of dangers on their land. The landowner or proprietor's ongoing duty to warn people of dangers on their land extends what date a cause of action accrues because it is the breach of the duty that creates the cause of action. But the premises liability circumstances do not exist here. Nemaha-Marshall is not a landowner that has a duty to warn the Deters of some danger on its property. Simply put, the premises liability cases the Deters rely on are distinguishable from their case.

Moreover, the Deters misconstrue Kaminski . The Deters contend that their case is much like Kaminski because a genuine issue exists about when Nemaha-Marshall altered the wires in the GTS. The Deters contend that their evidence that Nemaha-Marshall altered the wires in 2007 is comparable to Kaminski's reasonable evidence that the Post Office's parking lot drainage conditions had not existed in the same manner for the past 10 years. The Deters' argument is problematic for a couple of reasons. For starters, as explained in the next section, their evidence that Nemaha-Marshall altered the wires in the GTS in 2007 is unpersuasive.

More importantly, the Deters' argument ignores that the rule for determining when the statute of repose begins to run is when the defendant completes the last original wrongful act. Even under the premises liability cases, this is the rule. See Bonnette , 55 Kan. App. 2d 130, Syl. ¶ 4, 409 P.3d 865 (holding that "[t]he 10-year period of the statute of repose found in K.S.A. 50-513[b] begins to run when the defendant completes the last act giving rise to the cause of action"). Here, both parties agree that Nemaha-Marshall first negligently wired the GTS no later than January 2000.

In summary, the uncontroverted facts here establish that Nemaha-Marshall connected the GTS to the new house sometime between 1996 and 2000. The heat pumps and appliances all received electricity from the new house. Nemaha-Marshall charged the Deters for work related to the GTS on November 7, 1997. Nemaha-Marshall never charged the Deters for work related to the GTS following 1997. In their petition, the Deters allege that Nemaha-Marshall negligently wired the GTS when it first installed the GTS at their new house. During his deposition, Stephen testified that they experienced low voltage problems before Nemaha-Marshall's February 2007 service call. In other words, the Deters experienced low voltage problems before the date that Nemaha-Marshall employees allegedly regained access to the GTS. Moreover, during his deposition, Stephen also testified that he could not think of any time Nemaha-Marshall worked on the GTS after Nemaha-Marshall installed the GTS.

Consequently, the uncontroverted facts establish that the original act giving rise to the Deters' cause of action-Nemaha-Marshall's negligent wiring of the Deters' GTS-occurred no later than January 2000. This means that the Deters filed their March 2015 petition against Nemaha-Marshall about five years after the statute of repose had expired.

2007 Contacts

In addition, we note that the Deters' contention that Nemaha-Marshall worked on the GTS in 2007 is unsupported by the record on appeal.

The Deters' argument hinges on their belief that premises liability caselaw applied to their case. Under this belief, the Deters argued (1) that they had evidence that Nemaha-Marshall serviced the GTS in 2007 and (2) that the last act giving rise to the cause of action in their case was in 2007. To review, after Nemaha-Marshall moved for summary judgment, the Deters produced the February 2007 utility meter readout, September 2007 antenna wire invoice, and Stephen's sworn affidavit. Now, in their appellate brief, the Deters allege that the preceding documents, along with Neagele's opinion about cleaning the wires, show that Nemaha-Marshall worked on the GTS in 2007. Yet, this inference is based on supposition and conjecture.

To begin with, the Deters' utility meter readout is simply a printout of the Deters' utility meter readings from May 2005 to July 2007. According to a Nemaha-Marshall lineman supervisor, the Deters' utility meter and GTS are two distinct devices. Nemaha-Marshall could service one without servicing the other. Additionally, the Deters' expert, Neagele, explained that "[a]ny upstream voltage monitoring device, such as the utility electric meter, might not detect [a low voltage] issue."

The antenna wire invoice merely stated that Nemaha-Marshall charged the Deters for a quarter-hour's work and an antenna wire on September 27, 2007. Nothing on the invoice related to work on the GTS. Furthermore, in his sworn affidavit, Stephen admitted that the antenna wire was for his cable, not for his GTS.

As for his sworn affidavit, Stephen stated: (1) that he watched Nemaha-Marshall employees work on the GTS for "about 10 minutes" from his window in February 2007; (2) that Nemaha-Marshall employees checked the connections in September 2007, which he understood to mean they worked on the GTS. At his deposition, Stephen testified that he had Nemaha-Marshall electrical employees out at some point in the mid-2000s to address blinking lights. Nevertheless, he also testified that he had no memory of "a service call out to [his] house" where Nemaha-Marshall electrical workers would have worked on the GTS.

"It is well-established that '[a] party opposing summary judgment may not rest merely on allegations, but must set forth specific facts to support its position.' [Citation omitted.]" Seitz v. Lawrence Bank , 36 Kan. App. 2d 283, 289, 138 P.3d 388 (2006). " 'The law is clear that "an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility." [Citation omitted.]' " 36 Kan. App. 2d at 290, 138 P.3d 388. Moreover, "an affidavit cannot be used to controvert earlier deposition testimony for the purpose of avoiding summary judgment." Smith v. Kansas Orthopaedic Center , 49 Kan. App. 2d 812, 818, 316 P.3d 790 (2013). The Tenth Circuit of the United States Court of Appeals has explained that when challenging a summary judgment motion, "the nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient." Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991). Our Supreme Court has explained that the nonmovant's allegations cannot be "[f]limsy or transparent." In re Estate of Mullin , 201 Kan. 756, 761, 443 P.2d 331 (1968).

We determine that Stephen's affidavit testimony about witnessing Nemaha-Marshall employees working on the GTS, or communicating with Nemaha-Marshall employees about working on the GTS in 2007 was insufficient to establish a genuine issue of material fact. Furthermore, because the statements are flimsy and transparent, they "are insufficient to sustain a justiciable controversy requiring the submission thereof to the trier of facts." 201 Kan. at 761, 443 P.2d 331.

Finally, the Deters' assertion that Neagele's opinion that at some point somebody removed, cleaned, and then rewired the GTS does not establish that Nemaha-Marshall did this. The GTS was on the Deters' property for about 15 years. Moreover, as mentioned earlier, although Nemaha-Marshall installed the GTS, the GTS belonged to the Deters. To find that the 2007 utility meter readout and antenna wire invoice relate to the GTS box through Neagele's contention that somebody messed with the GTS wires at some point, this court would have to speculate. As a result, although Nemaha-Marshall may have interacted with the Deters in 2007 when it provided them the utility meter readout and antenna wire services, those services do not establish that Nemaha-Marshall either (1) serviced the GTS or (2) disturbed the GTS without permission. Thus, we conclude that the Deters have failed to come forward with evidence showing a genuine issue of material fact.

Improper Arguments

Finally, the Deters raise two arguments why the district court erred in granting Nemaha-Marshall's summary judgment motion that are not properly before this court.

First, the Deters seemingly complain that Nemaha-Marshall cannot seek tariff protections. Below, the Deters raised the tariff issue in their pretrial questionnaire. Although the Deters do not acknowledge this in their brief, the district court did not reach the tariff issue because it granted Nemaha-Marshall's summary judgment motion based on the statute of repose. It is a well-known rule that this court does not decide moot issues. Stano v. Pryor , 52 Kan. App. 2d 679, 682-83, 372 P.3d 427 (2016). Here, whether Nemaha-Marshall was entitled to tariff protections is moot because Nemaha-Marshall is entitled to summary judgment under the statute of repose.

Second, the Deters argue that the doctrine of equitable estoppel requires this court to reverse the district court's summary judgment ruling. Below, the Deters included one sentence on estoppel in their motion to alter or amend the district court's summary judgment ruling: "There is reason at this point that Defendant, Nemaha Marshall, by Defendant's own actions should be estopped to claim the statute of repose." When the district court denied this motion, it did not address the Deters' reference to equitable estoppel. Perhaps, the Deters' failure to object to the district court's order precludes this court's review. See McIntyre v. State , 305 Kan. 616, 618, 385 P.3d 930 (2016) (holding that parties must object to inadequate findings of fact and conclusions of law to preserve their arguments for appeal).

Regardless, the Deters' appellate argument consists of one paragraph in which they assert that this court should equitably estop Nemaha-Marshall from pleading the statute of repose because Nemaha-Marshall conceded that it negligently wired the GTS. They cite no caselaw to support their contention that courts should equitably estop parties who concede negligence from using the statute of repose as an affirmative defense. This court has consistently held that an appellant abandons a point raised incidentally in a brief. Russell v. May , 306 Kan. 1058, 1089, 400 P.3d 647 (2017). Moreover, this court has held that the failure to support a point with authority, or explain why that point is sound despite a lack of supporting authority constitutes abandoning the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 1001, 348 P.3d 602 (2015). Here, we determine that the Deters have abandoned their argument by including no analysis in their brief.

Did the District Court Err by Granting Alliance's Motion for Summary Judgment?

Next, the Deters argue that the district court erred when it granted Alliance's motion for summary judgment. In their brief, the Deters allege that they have two claims against Alliance. First, they allege that their homeowner's insurance policy covers the low voltage damage, meaning Alliance wrongly denied both their claims for damages on the original heat pump and the replacement heat pumps. Second, they contend that Alliance had a legal duty to inspect their property and discover that the source of their electrical problems was the wiring within the GTS. The Deters argue that Alliance did not investigate their claims in good faith.

Alliance responds that its homeowner's insurance policy with the Deters, as well as the equipment breakdown policy, did not cover low voltage events. Moreover, Alliance argues that it adequately investigated the Deters' claims.

Homeowner's Insurance Policy

To begin our analysis, we note that the Deters have abandoned any argument that their homeowner's insurance policy with Alliance covered their heat pumps damaged by low voltage. In their brief, the Deters have included no analysis on their homeowner's insurance policy. Instead, they include a single sentence in which they assert that their homeowner's insurance policy provided coverage. The remainder of their brief focuses on the bad-faith investigation argument. Furthermore, the Deters did not address whether their heat pumps and appliances were fixtures annexed to their realty or merely personal property. This analysis was important because the Deters' homeowner's insurance policy contained different provisions depending on whether the insureds were claiming that the event damaged their dwelling or their personal property. The Deters also never address that when they filed their claims with Alliance, they only requested damages for their original heat pump and for the replacement heat pumps. Now, they seemingly assert that they are entitled to damages from Alliance for their appliances as well.

Again, this court considers points raised incidentally in a brief abandoned. Russell , 306 Kan. at 1089, 400 P.3d 647. Here, by providing no analysis about how their homeowner's insurance policy covered low voltage events, we determine that the Deters have abandoned this argument.

Regardless, assuming for the sake of argument that the heat pumps and appliances were fixtures attached to the Deters' realty, we note that the district court correctly determined that the Deters' homeowner's insurance policy with Alliance covered no damage caused by low voltage events. Section 1-Exclusions (B) of the Deters' homeowner's insurance policy provides:

"We do not insure for loss to property described in Coverages A [Dwelling] caused by any of the following ... :
....
3. Faulty, inadequate or defective:
....
b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance;
of part or all of any property whether on or off the 'residence premises.' "

Here, the Deters' entire case hinges on Nemaha-Marshall's defective workmanship when wiring the GTS. As a result, the district court properly found that the homeowner's insurance policy covered no property loss stemming from Nemaha-Marshall's defective workmanship under this provision of the Deters' homeowner's insurance policy.

Assuming arguendo that the heat pumps and appliances constituted personal property, we point out the provision of the Deters' homeowner's insurance policy entitled Section 1-Perils Insured Against (B): Coverage-Personal Property lists what direct physical losses it covers. Losses to electrical wiring caused by a low voltage event are not included in the perils that are covered. Indeed, this provision specifically excluded coverage to the circuitry of appliances and fixtures damaged by "sudden and accidental damage from artificially generated electrical current." Thus, under the Deters' homeowner's insurance policy, no coverage existed for electrical events (1) that the utility caused, i.e., that is artificially generated electricity, and (2) that damaged only fixtures and appliances. For this reason, the Deters' homeowner's insurance policy does not cover losses caused by the low voltage events artificially generated by Nemaha-Marshall's negligent wiring if the Deters' heat pumps and appliances constituted personal property.

Last, throughout this case, the Deters have used the term "low voltage events" and "brown outs" interchangeably. For instance, in his affidavit, Stephen asserted that in "January and February 2007 [they] experienced 'low voltage events,' more [commonly] known as 'brown outs' ...." The Deters' equipment breakdown policy specifically excludes coverage for "loss, damage, or expense caused by or resulting from: [ ] electrical power surge or brown out." Because the Deters admittedly experienced brown outs because of Nemaha-Marshall's wiring of the GTS, they were not entitled to coverage under their equipment breakdown policy.

As a result, even if we were to assume that the Deters had not abandoned their argument on appeal, it is readily apparent that the Deters' homeowner's insurance policy did not cover the damage caused by the low voltage events.

Bad-Faith Investigation

The Deters frame this issue as follows: "If the insurance company is informed of the problem from the start and decides to investigate, does the insurance company have an obligation to look into the customer's complaint?" Essentially, the Deters assert that because they originally told Alliance that they believed low voltage had caused the damage to their heat pumps, Alliance had a duty to investigate if low voltage caused the damage to their heat pumps.

The Deters concede that for their claim on the original heat pump, they switched theories on what caused the damage mid-claim; at first, they asserted it was low voltage from wires on the heat pump , then they asserted that lightning caused the damage to the heat pump. But the Deters believe that their assertion that lightning caused the damage to the original heat pump should not matter since they had mentioned low voltage before. The mere mentioning of low voltage created Alliance's duty to investigate low voltage. The Deters go on to attack the findings of Alliance's claim investigators-Bitar and Geer. Nevertheless, the Deters' argument is unpersuasive.

The Deters are correct that insurers must make a good-faith investigation of a claim under Kansas law:

"[A]n insurance company is not required to pay a claim when there is a good-faith legal or factual reason to deny a claim, but at the same time, the insurer has a duty to make a good-faith investigation of the facts before refusing to pay. [Citations omitted.] ' "Good faith on the part of the insurer implies honesty, fair dealing and adequate information." [Citation omitted.]' "
Foster v. Stonebridge Life Ins. Co. , 50 Kan. App. 2d 1, 28-29, 327 P.3d 1014 (2012).

While it is true that Neagele concluded that low voltage may have caused the damage to the original heat pump, Neagele made this opinion (1) after being told there was a low voltage problem and (2) after being shown photographs of the wiring within the GTS. When considering whether an insurer acted in good faith while investigating a claim, we note that the insurer has a duty to make an investigation of the facts and circumstances before refusing to pay the claim. Here, when Bitar conducted his examination of the original heat pump compressor, the Deters were still alleging that lightning damaged the heat pump. Because the Deters were alleging lightning damage, it is unclear how Bitar had a duty to investigate low voltage. Moreover, Neagele-the Deters' own expert-determined that Bitar's conclusion that the original heat pump suffered a prolonged electrical failure because of low refrigerant was reasonable.

Because Neagele believed that it was a reasonable conclusion that the original heat pump failed because of low refrigerant, we cannot conclude that Alliance conducted a bad-faith investigation into the original heat pump claim. Clearly, a reasonable factual basis existed for Alliance to deny the Deters' original claim.

Next, when Geer examined replacement heat pump #2, he observed that replacement heat pump #2 had no damage. An insurance company cannot be expected to find evidence of damage that does not exist. In any event, Geer's report explicitly stated that there were "no indications of low voltage." In other words, despite the Deters' contention to the contrary, Geer investigated the Deters' assertion that replacement heat pump #2 was not functioning because of low voltage. Furthermore, replacement heat pump #2 continues to work without problems. This means that Geer's analysis continues to be sound-that replacement heat pump #2 did not experience low voltage damage.

Although Alliance ultimately denied the Deters' claim for damages related to replacement heat pumps #1 and #2, as considered earlier, Alliance properly denied the Deters' claim because their homeowner's insurance policy and equipment breakdown policy did not cover damage from low voltage events. Again, to investigate with good faith, the insurer needs to act with honesty, fair dealing, and information. Foster , 50 Kan. App. 2d at 28-29, 327 P.3d 1014. When Alliance denied the Deters' claim on the original heat pump, it acted on the information available then. When Alliance denied the Deters' claim on the replacements heat pumps, it acted on the information available then, which included the knowledge of Nemaha-Marshall's negligent wiring.

The Deters' argument ignores that Alliance's duty to investigate exists only for the purpose of resolving the claim. Here, Alliance had legitimate factual reasons based in the Deters' homeowner's insurance policy for resolving the Deters' claims. As a result, when Alliance denied the Deters' claim, we conclude that Alliance did so in good faith.

Although the district court did not use this reasoning when rejecting the Deters' argument, this court can uphold the district court's decision when it reaches the correct result regardless of the reasoning the district court uses. See Gannon v. State , 302 Kan. 739, 744, 357 P.3d 873 (2015). For the preceding reasons, we affirm the district court's order of summary judgment in favor of Alliance.

Affirmed.


text:
    KALISPELL AIRCRAFT COMPANY, LLC, Plaintiff, Appellee and Cross-Appellant, v. Bruce PATTERSON, Leroy Lepley, Bill Griffin, Does 1-V, Defendants, Appellants, and Cross-Appellees.
    DA 18-0386
    Supreme Court of Montana.
    Submitted on Briefs: May 1, 2019 Decided: June 25, 2019
    For Appellants: Marybeth M. Sampsel, Measure Law, P.C., Kalispell, Montana
    For Appellee: Ashley C. McCormack, Rebecca J. Henning-Rutz, James T. McCormack, Henning, Rutz, & McCormack, P.L.L.C., Kalispell, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendants/Appellants/Cross-Appellees Bruce Patterson, LeRoy Lepley, and Bill Griffin (Appellants) appeal the Order on Plaintiff's Motion for Judgment on the Pleadings issued by the Montana Eleventh Judicial District Court, Flathead County, on July 8, 2016. Plaintiff/Appellee/Cross-Appellant Kalispell Aircraft Company, LLC (KAC) cross-appeals a series of orders made by the District Court which, in relevant part, denied KAC's Motion in Limine, sanctioned KAC, and denied KAC's Motion for Pre-Judgment Interest.

¶2 We restate the issues on appeal as follows:

1. Did the District Court err when it granted KAC's Motion for Judgment on the Pleadings?
2. Did the District Court err when it denied KAC's Motion in Limine?
3. Did the District Court err when it sanctioned KAC?
4. Did the District Court err when it denied KAC's Motion for Pre-Judgment Interest?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On August 28, 2013, KAC and the Appellants signed a written Agreement for Sale of Aircraft (Agreement), in which the Appellants contracted to purchase a 1973 pressurized Cessna Skymaster 337 (Skymaster) from KAC for $ 90,000. The Agreement stated, in relevant part, that:

Buyers shall have thirty (30) days from the date of this Agreement to complete any reasonable inspection, whether pre-buy, flight inspection, etc. If Buyers note any discrepancies which KAC is unable to reasonably remedy, then Buyers shall have an absolute right to withdraw from this Agreement with no penalty or obligation.

The Appellants initially scheduled an inspection of the aircraft, but then informed KAC on September 12, 2013, without conducting an inspection, that they would not be purchasing the Skymaster as they were financially unable to obtain insurance. KAC ultimately sold the Skymaster to a different buyer on December 6, 2013, for $ 65,000.

¶5 On September 11, 2014, KAC filed its Amended Complaint in this matter, suing the Appellants for breaching the August 2013 Agreement to purchase the Skymaster. After the Appellants filed their Answer, KAC filed a Motion for Judgment on the Pleadings, which the District Court granted on July 8, 2016, finding the Appellants liable for breaching the Agreement. The Appellants appealed the District Court's ruling to this Court on August 4, 2016, but later stipulated to dismissal of their appeal without prejudice. This Court dismissed the appeal pursuant to that stipulation on September 22, 2016.

¶6 When the case returned to the District Court, KAC filed a Motion for Summary Judgment regarding damages. The District Court denied KAC's motion on April 21, 2017, finding that the amount of KAC's damages attributable to the Appellants was uncertain because KAC was currently engaged in separate litigation with an unrelated party for breach of contract regarding that party's contract for purchase of the Skymaster at issue in this case. The District Court further found that there were disputed issues of material fact concerning KAC's mitigation of damages and that KAC was not entitled to prejudgment interest.

¶7 On April 27, 2017, the District Court issued a scheduling order which set the close of discovery on July 27, 2017. The parties then began to discuss amongst themselves an agreement to extend discovery. Counsel for the Appellants suggested that she would be open to extending the discovery deadline to the end of August if KAC would agree to an early settlement conference. Counsel for KAC responded that the parties were "[g]ood to go" on extending the discovery deadline, but the parties did not agree to an early settlement conference.

¶8 KAC served the Appellants with its first discovery requests on July 11, 2017-fewer than 30 days before the close of discovery. Because KAC's discovery requests did not provide adequate time to respond before the close of discovery, the Appellants did not answer KAC's discovery requests. On February 12, 2018, KAC filed a motion in limine which sought, in relevant part, to deem Requests for Admission 1-4 of the Plaintiff's first discovery requests as admitted, because the Appellants did not answer within 30 days. In its motion in limine, KAC claimed that "[Appellants] requested and were given an extension until the end of August 2017 to complete all discovery." KAC attached two June 27, 2017 emails to its motion as an exhibit. In the exhibit, counsel for the Appellants asks if counsel for KAC would "agree to informally extend the discovery deadline to end of August with the idea that we'd get settlement conference in by end of July?" Counsel for the Appellants explains her position for possibly extending discovery and completing the settlement conference early so that the parties would not need to put time and energy into completing discovery requests when the matter may settle, and then asks for KAC's counsel's thoughts on the suggestion. Counsel for KAC simply responds "[g]ood to go on informally extending discovery until the end of August[,]" and then lists several conditions for a possible settlement conference. After the Appellants responded to KAC's motion in limine and asserted that KAC had misrepresented to the District Court whether there was an agreement to extend discovery, KAC supplemented the record with further email correspondence between the parties.

¶9 The District Court reviewed the supplemented record provided by KAC and determined that KAC either "did not diligently investigate the correspondence with opposing counsel before filing the [motion in limine], which would have shown there was a dispute concerning whether there had been a discovery extension; or ... knew of the dispute and intentionally omitted it from the [motion in limine]." The District Court determined that KAC had been dishonest and denied KAC's motion in limine. The District Court further ordered KAC to pay the Appellants' expenses incurred in opposing the motion, including attorney fees, as a sanction.

¶10 On March 21, 2018, the parties filed a Stipulation to Vacate Trial and Regarding Damages (Stipulation). The Stipulation, in relevant part, stated that "Defendants stipulate to damages in the amount of $ 25,791.00, less the forthcoming award for attorneys' fees and costs under the Court's Order on Plaintiff's Motion in Limine." The Stipulation further noted that the issue of prejudgment interest on the "stipulated damage amount" was a matter of law for the District Court to decide. On March 22, 2018, the District Court issued an Order Vacating Trial and Approving and Adopting Stipulation. After the parties briefed the prejudgment interest issue, the District Court issued an Order on Plaintiff's Motion for Pre-Judgment Interest on May 16, 2018, which denied KAC prejudgment interest. On May 31, 2018, the District Court issued its Findings of Fact, Conclusions of Law and Order on Defense Counsel's Amended Affidavit of Attorney's Fees, which ordered KAC to pay the Appellants $ 980 in attorney fees incurred responding to KAC's motion in limine. The District Court issued its Judgment on June 11, 2018, which awarded KAC $ 25,791 and the Appellants $ 980. The parties cross-appeal.

STANDARD OF REVIEW

¶11 We review a district court's decision on a motion for judgment on the pleadings pursuant to M. R. Civ. P. 12(c) de novo to determine if the court's decision was correct. Firelight Meadows, LLC v. 3 Rivers Tel. Coop., Inc. , 2008 MT 202, ¶ 12, 344 Mont. 117, 186 P.3d 869.

¶12 We review a district court's imposition of sanctions for discovery abuses for an abuse of discretion. Cox v. Magers , 2018 MT 21, ¶ 13, 390 Mont. 224, 411 P.3d 1271 (citing Schuff v. A.T. Klemens & Son , 2000 MT 357, ¶ 27, 303 Mont. 274, 16 P.3d 1002 ). A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. Sullivan v. Cherewick , 2017 MT 38, ¶ 10, 386 Mont. 350, 391 P.3d 62.

¶13 A district court's denial of prejudgment interest is a question of law, which we review for correctness. Ryffel Family P'ship v. Alpine Country Constr., Inc. , 2016 MT 350, ¶ 21, 386 Mont. 165, 386 P.3d 971.

DISCUSSION

¶14 1. Did the District Court err when it granted KAC's Motion for Judgment on the Pleadings?

¶15 A motion for judgment on the pleadings "is properly granted when, taking all of the well-pleaded factual allegations in the nonmovant's pleadings as true, the material facts are not in dispute and the moving party is entitled to judgment as a matter of law." Firelight Meadows , ¶ 11. A district court may convert a motion for judgment on the pleadings to one for summary judgment if matters outside the pleadings are presented to and not excluded by the court. M. R. Civ. P. 12(d).

¶16 After the Appellants filed their Answer to KAC's Amended Complaint in this matter, KAC moved for judgment on the pleadings regarding the Appellants' liability for breach of contract. The District Court found the Appellants liable for breaching the Agreement to purchase the Skymaster and granted KAC's Motion for Judgment on the Pleadings. The relevant language of the Agreement states:

Buyers shall have thirty (30) days from the date of this Agreement to complete any reasonable inspection, whether pre-buy, flight inspection, etc. If Buyers note any discrepancies which KAC is unable to reasonably remedy, then Buyers shall have an absolute right to withdraw from this Agreement with no penalty or obligation.

The District Court found that the Appellants did not complete an inspection within 30 days and therefore breached the Agreement by withdrawing.

¶17 The interpretation of a written contract is a question of law, which we review to determine whether the district court's interpretation is correct. King Res., Inc. v. Oliver , 2002 MT 301, ¶ 18, 313 Mont. 17, 59 P.3d 1172 (citing Eschenbacher v. Anderson , 2001 MT 206, ¶ 21, 306 Mont. 321, 34 P.3d 87 ). Where a contract has been reduced to writing, the intention of the parties is to be ascertained, if possible, from the writing alone. Section 28-3-303, MCA ; Estate of Irvine v. Oaas , 2013 MT 271, ¶ 22, 372 Mont. 49, 309 P.3d 986. "If the terms of a contract are unambiguous, a court must apply the language of the contract as written." Estate of Irvine , ¶ 22 (citing State v. Asbeck , 2003 MT 337, ¶ 18, 318 Mont. 431, 80 P.3d 1272 ). A court may only turn to extrinsic evidence when an ambiguity exists. Rich v. Ellingson , 2007 MT 346, ¶ 15, 340 Mont. 285, 174 P.3d 491 (citation omitted).

¶18 Essentially, the Appellants argue that two words in the Agreement are ambiguous-"etc." and "discrepancies"-and therefore the District Court erred by not considering extrinsic evidence. The District Court found that the language of the Agreement was "clear and unambiguous" and thus the Appellants' proffered interpretation of the Agreement was unreasonable. We agree with the District Court.

¶19 The Appellants fault the District Court for not specifically addressing the use of "etc." in the Agreement when it determined that the language was unambiguous. The definition of etc. is "[a]nd other things" and it is usually used to indicate "additional, unspecified items in a series." Et cetera , Black's Law Dictionary (10th ed. 2014). The Agreement stated that the Appellants had 30 days to conduct "any reasonable inspection, whether pre-buy, flight inspection, etc." In the Agreement, "etc." follows a series of ways to conduct an inspection of an airplane. The District Court correctly found that the subject of the Agreement's "reasonable inspection" clause could be nothing other than the Skymaster itself. The Appellants withdrew from the Agreement after discovering that they were unable to financially secure insurance-they never performed any inspection of the aircraft itself.

¶20 Relatedly, the Appellants further claim that the use of the term "discrepancies" makes the Agreement ambiguous because the sentence in which "discrepancies" is used does not explicitly state to what "discrepancies" is referring "which makes it impossible for there to be a disagreement or variance at all." "The whole of a contract is to be taken together so as to give effect to every part if reasonably practicable, each clause helping to interpret the other." Section 28-3-202, MCA. The sentence in which "discrepancies" is used immediately follows the sentence about conducting an inspection of the aircraft. Reading the contract as a whole, the only thing to which "discrepancies" could refer is the inspection of the aircraft. Any other interpretation of the contract is unreasonable, and as previously noted, the Appellants did not conduct an inspection of the aircraft.

¶21 The language of the Agreement was clear and unambiguous, and therefore the District Court correctly excluded extrinsic evidence when interpreting the Agreement. The Appellants breached the Agreement to purchase the Skymaster by withdrawing without conducting an inspection and the District Court correctly granted KAC's Motion for Judgment on the Pleadings.

¶22 2. Did the District Court err when it denied KAC's Motion in Limine?

¶23 "District courts are better positioned than we are to evaluate the conduct and good faith of parties during discovery, and as such they enjoy considerable leeway in sanctioning discovery abuses." Peterman v. Herbalife Int'l, Inc. , 2010 MT 142, ¶ 23, 356 Mont. 542, 234 P.3d 898 (citations omitted). We regard with favor a district court's imposition of sanctions for failure to comply with discovery procedures because the price for dishonesty must be made unbearable to thwart the temptation that zealous advocacy inspires. Richardson v. State , 2006 MT 43, ¶ 56, 331 Mont. 231, 130 P.3d 634 (citations omitted). A district court possesses inherent power to sanction willful or reckless conduct. Boushie v. Windsor , 2014 MT 153, ¶ 19, 375 Mont. 301, 328 P.3d 631.

¶24 KAC argues that a contract to extend the discovery deadline was created when it responded to Appellants' counsel's email proposing an extension with "[g]ood to go on informally extending discovery until the end of August." The Appellants argue that no contract to extend discovery existed because the Appellants merely made an offer with conditions and the conditions were not met. The District Court reviewed all the correspondence submitted by KAC and found that there was not a contract between the parties to extend the discovery deadline. We agree.

¶25 "A contract condition is the subsequent occurrence of a specific uncertain act, event, or circumstance.... A condition precedent to contract formation is a specific condition, usually an extraneous event or circumstance or third-party act, the occurrence upon which the reciprocal promises constituting the contract consideration depend." Davidson v. Barstad , 2019 MT 48, ¶ 20, 395 Mont. 1, 435 P.3d 640 (citations omitted). "The failure or non-satisfaction of a condition precedent to contract formation renders the contemplated contract non-existent as never formed and thus non-binding and unenforceable." Davidson , ¶ 21 (citing Thompson v. Lithia Chrysler Jeep Dodge of Great Falls , 2008 MT 175, ¶ 22, 343 Mont. 392, 185 P.3d 332 ).

¶26 In this case, the parties corresponded regarding a possible extension of discovery. The Appellants conditionally offered to extend discovery if conditions regarding an early settlement conference were met. Those conditions were never met, and thus there was no contract to extend discovery among the parties. KAC argues that the reason the settlement conference did not occur within the time suggested by Appellants is due to the Appellants' failure to abide by the pre-existing conditions regarding settlement conferences imposed by the Eleventh Judicial District's Standing Order (Standing Order) regarding settlement conferences. This argument is unpersuasive. The Appellants, three men residing in Indiana, understandably wished to attend the early settlement conference by video rather than incur the presumably large expenses involved in traveling to Kalispell. KAC insisted on the personal attendance of at least one of the Appellants, if he had full authority to settle, or the personal attendance of all three if the Appellants did not give one man ultimate settlement authority. The Appellants used conditional language when offering a discovery extension, indicating that certain conditions regarding the early settlement conference must be met before they would agree to actually extend discovery, and the Standing Order does not completely prohibit parties from virtually attending settlement conferences, merely stating that "requests to excuse personal attendance will not be entertained without exceptional justification." Presumably an agreement to video attendance among the parties and the distance and expense involved in traveling could meet the Standing Order's "exceptional justification" standard. Indeed, the parties continued to negotiate on which Appellants were personally required to attend the settlement conference until mere days before the settlement conference actually occurred in November 2017. Because the parties never met the conditions of the Appellants' offer, no contract to extend the discovery deadline existed.

¶27 KAC either willfully or negligently misrepresented to the District Court the existence of an agreement among the parties to extend the discovery deadline until the end of August 2017. Because there was no agreement to extend the discovery deadline, the District Court correctly denied KAC's motion in limine.

¶28 3. Did the District Court err when it sanctioned KAC?

¶29 In addition to denying KAC's motion in limine and preventing KAC from using any of its first discovery requests at trial, the District Court further ordered KAC to pay the Appellants' attorneys' fees and costs incurred in responding to the motion. We review the sanctions imposed by a district court to determine if they are "roughly proportionate to the gravity of the abuse and the inconvenience visited upon other parties and the district court." Peterman , ¶ 23.

¶30 In this case, the District Court found that KAC had either willfully or recklessly misrepresented the existence of an agreement to extend the discovery deadline. As discussed in Issue 2, the District Court was correct in its analysis regarding KAC's misrepresentations toward the court. The District Court's sanction of $ 980 in attorney fees and costs is reasonable with regard to KAC's conduct in this matter, and therefore will not be disturbed.

¶31 4. Did the District Court err when it denied KAC's Motion for Pre-Judgment Interest?

¶32 When a prevailing plaintiff's amount of recovery is capable of being made certain by calculation, that plaintiff is statutorily entitled to prejudgment interest under § 27-1-211, MCA. Ryffel Family P'ship , ¶ 35 (citing Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc. , 2008 MT 2, ¶ 99, 341 Mont. 33, 174 P.3d 948 ). There are three requirements under the prejudgment interest statute: (1) an underlying monetary obligation must exist; (2) the amount of recovery must be capable of being made certain; and (3) the right to recover must vest on a particular day. Petroleum Tank , ¶ 99 (citing Albers v. Bar ZF Ranch, Inc. , 229 Mont. 396, 408, 747 P.2d 1347, 1354 (1987) ). An award of prejudgment interest is inappropriate when the damages at issue are uncertain or disputed.

Ryffel Family P'ship , ¶ 35 (citing Petroleum Tank , ¶ 99 ).

¶33 After the Appellants breached the Agreement to buy the Skymaster, KAC attempted to find a new buyer for the airplane. On December 6, 2013, KAC sold the Skymaster to a different buyer for $ 65,000, which is $ 25,000 less than the $ 90,000 purchase price agreed to by the Appellants in the Agreement. Between September 28, 2013, and December 6, 2013, KAC also incurred $ 791 in hangar storage fees for the Skymaster. KAC asserts that it is therefore entitled to prejudgment interest on a total damage amount of $ 25,791 beginning on December 6, 2013. The District Court twice denied KAC prejudgment interest in this case-first denying KAC's motion for summary judgment regarding damages, which included a request for prejudgment interest, and later denying KAC's motion for prejudgment interest.

¶34 In this case, the parties filed a Stipulation on March 21, 2018. The Stipulation, in relevant part, stated that "Defendants stipulate to damages in the amount of $ 25,791.00, less the forthcoming award for attorneys' fees and costs under the Court's Order on Plaintiff's Motion in Limine." KAC argues that since the Appellants ultimately stipulated to the same numerical amount of damages as KAC claimed, that the amount of recovery has been certain since December 6, 2013. We disagree. The plain language of the Stipulation provides that damages in this matter are "$ 25,791.00, less the forthcoming award for attorneys' fees and costs " (emphasis added). The parties therefore stipulated that damages were not certain until after the District Court issued its attorneys' fees and costs award. KAC argues that, at a minimum, damages were certain when the District Court issued its May 16, 2018 Order on Plaintiff's Motion for Pre-Judgment Interest, because the District Court already had the Appellants' unopposed amended attorneys' fees affidavit. The District Court was not bound to order attorneys' fees in the amount claimed in the affidavit simply because they were uncontested. The District Court's award of attorneys' fees as a sanction was a purely discretionary act, and it could not be completed until the District Court used its discretion to award said fees. That the District Court ultimately awarded the amount claimed by the Appellants is irrelevant because a district court's sanction is not certain until it is issued. Because the damages were not certain, KAC was not entitled to prejudgment interest. Ryffel Family P'ship , ¶ 35.

¶35 Because we have determined the District Court correctly denied KAC's Motion for Pre-Judgment Interest on the grounds that the amount of recovery was not capable of being made certain, we need not reach the Appellants' arguments regarding the law of the case doctrine.

CONCLUSION

¶36 The District Court did not err when it granted KAC's Motion for Judgment on the Pleadings, when it denied KAC's Motion in Limine, when it sanctioned KAC, or when it denied KAC's Motion for Pre-Judgment Interest.

¶37 Affirmed.

We concur:

MIKE McGRATH, C.J.

JIM RICE, J.

DIRK M. SANDEFUR, J.

BETH BAKER, J.


text:
    IN RE the MARRIAGE OF:
    Kayle Jo HARDMAN, f/k/a Kayle Jo Moore, Petitioner, Appellant, and Cross-Appellee, and Shannon M. MOORE, Respondent, Appellee, and Cross-Appellant.
    DA 18-0429
    Supreme Court of Montana.
    Submitted on Briefs: May 29, 2019 Decided: July 2, 2019
    For Appellant: Marybeth Sampsel, Measure Law, P.C., Kalispell, Montana
    For Appellee: Peter F. Carroll, Attorney at Law, Kalispell, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1Petitioner/Appellant/Cross-Appellee Kayle Jo Hardman, f/k/a Kayle Jo Moore (Kayle) and Respondent/Appellee/Cross-Appellant Shannon Moore (Shannon) cross-appeal the Combined Order on Motion for Lien and Counter Motion to Vacate the Decree of Dissolution issued by the Montana Eleventh Judicial District Court, Flathead County, on July 2, 2018.

¶2 We restate the issues on appeal as follows:

1. Did the District Court have jurisdiction to divide any portion of the proceeds from Shannon's California personal injury lawsuit?
2. Did the District Court err when it denied Kayle's request for half of the proceeds from Shannon's California personal injury lawsuit?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 2005, Kayle and Shannon married in California. In 2011, Shannon and a co-worker were injured while working alongside a road in Humboldt County, California, at a jobsite supervised by the California Department of Transportation (Caltrans). After the accident, Shannon and his co-worker filed a lawsuit against Caltrans. In 2013, the parties separated and Kayle moved to Montana. After living in Montana for 100 days, Kayle filed a Petition for Dissolution (Petition) on September 25, 2013. Attached to the Petition, as Exhibit A, is a document which states, in full:

A lawsuit is pending in the State of California, due to an on the job accident involving the Respondent in August 2011. The accident left the Respondent with a disability of Post Traumatic Stress Disorder (P.T.S.D). A settlement is expected in favor of the Respondent.
The Petitioner request all debts of the parties will be paid off with the proceeds of the settlement. This includes personal loans from Patti Hardman, Quita Moore, Judy Moore, Ed and Carolyn Gellner and the American Express credit card. All of which were used to help with living expenses after the [Respondent's] disability took place. Petitioner requests the residual proceeds are to be split 50/50 between the Respondent and Petitioner.

¶5 On March 10, 2014, Kayle filed an Amended Petition for Dissolution (Amended Petition). The Amended Petition contains an identical Exhibit A to that found attached to the Petition. Both the Petition and Amended Petition were served on Shannon in California. Shannon did not appear or otherwise respond to either the Petition or Amended Petition, and the Clerk of Court issued an Entry of Default on May 5, 2014. The District Court held a hearing on the Amended Petition on May 20, 2014, noted that Shannon's default had previously been entered, and determined Kayle's proposed distribution of property and debts to be fair and equitable. The District Court issued its Findings of Fact, Conclusions of Law and Final Decree of Dissolution (Decree) on May 20, 2014. The District Court's Decree includes an identical Exhibit A as those found on both the Petition and Amended Petition. Kayle sent the Shannon a Notice of Entry of Decree on May 20, 2014.

¶6 On February 1, 2017, Shannon received a jury verdict for medical expenses, lost earnings, and noneconomic damages in the amount of $2,727,587.11 in his personal injury lawsuit against Caltrans. After Kayle learned of the verdict, she filed a Motion for Contempt, to Enforce Decree, and for Order to Show Cause on March 28, 2017. Kayle sought to be awarded half of the proceeds of Shannon's California personal injury lawsuit under the Decree. On May 8, 2017, attorney Peter F. Carroll filed a Notice of Special Appearance and Motion to Dismiss on behalf of Shannon. On May 9, 2017, the District Court held a hearing on the motion for contempt and denied it as premature. On July 6, 2017, attorney Carroll filed a Notice of Withdrawal and Notice of Change of Address, in which he withdrew from representing Shannon and informed the parties that Shannon had moved to Tennessee.

¶7 On July 13, 2017, counsel for Kayle filed a Uniform District Court Rule 10 Notice, informing Shannon that he had 21 days to appoint new counsel or appear in person, as well as informing Shannon that Kayle had, simultaneously with filing the Rule 10 notice, filed a Motion for Lien and Brief in Support. On August 9, 2017, the District Court issued an Order Establishing Lien, which, in relevant part, granted Kayle 50% of the proceeds from Shannon's personal injury lawsuit.

¶8 On November 14, 2017, attorney Carroll again appeared on behalf of Shannon and filed a Motion to Vacate Judgment. After the parties briefed this motion, the District Court held a hearing on April 25, 2018. Following the hearing, the District Court issued an Order which vacated its August 9, 2017 Order Establishing Lien because it was prematurely issued and ordering Shannon to respond to the July 13, 2017 Motion for Lien. After an extension, Shannon filed his Response in Opposition to Motion for Order Establishing Judgment Lien and Counter Motion to Vacate the Decree of Dissolution of Marriage in Whole or Part on May 15, 2018. After the parties briefed both motions, the District Court issued its Combined Order on Motion for Lien and Counter Motion to Vacate the Decree of Dissolution on July 2, 2018. The parties cross-appeal.

STANDARD OF REVIEW

¶9 Whether a court has jurisdiction is a legal conclusion, which we review de novo.

Capital One, NA v. Guthrie , 2017 MT 75, ¶ 10, 387 Mont. 147, 392 P.3d 158 (citing Pinnow v. Mont. State Fund , 2007 MT 332, ¶ 13, 340 Mont. 217, 172 P.3d 1273 ).

¶10 Review of a district court's interpretation of a judgment presents an issue of law, and we review the district court's interpretation to determine whether it is correct. Levens v. Ballard , 2011 MT 153, ¶ 10, 361 Mont. 108, 255 P.3d 195 (citing Harland v. Anderson Ranch Co. , 2004 MT 132, ¶ 20, 321 Mont. 338, 92 P.3d 1160 ).

¶11 A district court is vested with broad discretion to apportion the marital estate in a manner equitable to each party under the circumstances. In re Funk , 2012 MT 14, ¶ 6, 363 Mont. 352, 270 P.3d 39 (citing § 40-4-202, MCA ). We review a district court's division of marital property to determine whether the court's findings of fact are clearly erroneous and its conclusions of law are correct. Absent clearly erroneous findings, we will affirm a district court's division of property unless we identify an abuse of discretion. Funk , ¶ 6. As we have stated previously, each case must be examined individually, with an eye to its unique circumstances. In re Marriage of Spawn , 2011 MT 284, ¶ 9, 362 Mont. 457, 269 P.3d 887.

DISCUSSION

¶12 1. Did the District Court have jurisdiction to divide any portion of the proceeds from Shannon's California personal injury lawsuit?

¶13 In the Decree, the District Court awarded numerous personal debts solely to Shannon. These debts included a total of $13,700 in personal loans from friends and family incurred after Shannon's accident and disability. In addition, the District Court included a special provision which stated:

Husband shall pay the total of [$7,088.85] to Wife which represents 1/2 of total owed to Bank of the West, in monthly increments of $300.00 until paid in full beginning April 1, 2014. If this debt is unpaid at time of [settlement] the Respondent must pay it out of his proceeds.

Shannon argued that the District Court did not have jurisdiction to divide any portion of his California personal injury lawsuit proceeds.

¶14 A district court has broad discretion to apportion a marital estate in a manner equitable to each party under the circumstances. In re Marriage of Parker , 2013 MT 194, ¶ 46, 371 Mont. 74, 305 P.3d 816. In making apportionment, a district court must consider:

the duration of the marriage and prior marriage of either party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income.

Section 40-4-202(1), MCA.

¶15 In this case, after Shannon's default, the District Court divided the property and debts of the parties as requested by Kayle. Because Kayle lived in Montana for more than 90 days prior to filing the action for dissolution, the District Court had jurisdiction to hear the dissolution action. Section 40-4-104(1), MCA ; see also § 40-4-105(1)(c), MCA. "Jurisdiction to hear the divorce gives jurisdiction over all the rest of the problems of custody, support and division of property." Wilson v. Wilson , 186 Mont. 290, 296, 607 P.2d 539, 542 (1980).

¶16 The District Court had jurisdiction to hear the dissolution action and therefore also had jurisdiction to divide the parties' marital debts and property. The District Court awarded all the personal loan debts incurred after Shannon's injury solely to Shannon, along with half of the parties' debt to Bank of the West. It further included a provision that Shannon would be required to pay these debts out of the proceeds of his California lawsuit if Shannon had not paid these debts by the time that lawsuit was completed. We have previously held that it is not an abuse of discretion for a district court to apportion proceeds from a pending lawsuit in a dissolution proceeding. In re Marriage of Hodge , 2003 MT 146, ¶ 16, 316 Mont. 194, 69 P.3d 1192. Under the unique circumstances of this case, the District Court had both the jurisdiction and the discretion to apportion a part of Shannon's lawsuit proceeds in the conditional event that Shannon did not pay his marital debts. This provision of the Decree is only relevant because Shannon has not yet paid those debts. Indeed, Shannon has still not received any proceeds from his lawsuit and it is entirely possible that this condition is never met because he could simply pay off his marital debts at any point. The District Court did not abuse its discretion in including the special provision requiring Shannon to pay his marital debts out of his lawsuit proceeds if those debts were still unpaid at the time of settlement.

¶17 Relatedly, Shannon argues that the District Court did not have jurisdiction to issue a lien on his lawsuit proceeds. The District Court, in its Combined Order on Motion for Lien and Counter Motion to Vacate the Decree of Dissolution, granted Kayle a lien on Shannon's lawsuit proceeds in the amount of $7,088.85. At the April 25, 2018 hearing both the District Court and counsel for Kayle agreed that an additional separate lien in Montana was not necessary as Kayle could simply take the Decree to California and seek to have it enforced as a foreign judgment. The lien issued by the District Court in this case is essentially superfluous then, as both the Decree and the lien award Kayle the same amount and require the funds be paid by any settlement proceeds only if that amount is not paid before such proceeds, if any, are distributed. The status of the parties and the amount of money due to Kayle are fundamentally the same regardless of the lien-the only difference being that Kayle could additionally seek to have the lien enforced as a foreign judgment. The amount of money due to her is unchanged. As we have determined that the District Court had jurisdiction to divide a portion of the proceeds from Shannon's California personal injury lawsuit in the Decree, the District Court's issuance of a lien which may be enforced only by filing in California added nothing to Kayle's rights under the Decree.

¶18 2. Did the District Court err when it denied Kayle's request for half of the proceeds from Shannon's California personal injury lawsuit?

¶19 The District Court included Exhibit A as an attachment to its Decree. Exhibit A states, in relevant part, that "The Petitioner request all debts of the parties will be paid off with the proceeds of the settlement. ... Petitioner requests the residual proceeds are to be split 50/50 between the Respondent and Petitioner." Kayle argues that the inclusion of this language means that she is entitled to half of the proceeds from Shannon's California personal injury lawsuit. The District Court found, after reviewing the record, that neither the plain language of the Decree nor the statements of the District Court at the dissolution hearing support Kayle's contention. We agree.

¶20 "While we generally encourage trial courts to make accommodations for parties choosing to represent themselves ... [a]ny latitude given to self-represented litigants cannot be so wide as to prejudice the other party." Cox v. Magers , 2018 MT 21, ¶ 15, 390 Mont. 224, 411 P.3d 1271 (internal citation and quotations omitted).

¶21 From the time Kayle first filed for dissolution in 2013 and through the time the District Court issued its Decree in 2014, Kayle was unrepresented by counsel and proceeding pro se. Shannon did not appear in the action at all during this period and was defaulted. Kayle essentially argues that her language requesting half of the proceeds from Shannon's California personal injury lawsuit is imprecise, but its intent was clear. Kayle asserts that not awarding her half of the proceeds would be elevating form over substance. This contention is incorrect. The plain language of Exhibit A-identical in the Petition, Amended Petition, and Decree-includes a request that the debts of the parties be paid from the proceeds of Shannon's anticipated settlement and a separate request for Kayle to receive half of the proceeds from Shannon's anticipated settlement. The District Court, in the Decree, partially adopted Kayle's first request with its special provision requiring Shannon to pay the $7,088.85 debt of out the lawsuit proceeds if that debt remained unpaid at the time of settlement. It did not adopt Kayle's second request for half of Shannon's personal injury lawsuit proceeds.

¶22 At the May 20, 2014 dissolution hearing, the District Court did not ask Kayle any questions about her request for half of Shannon's potential lawsuit proceeds. While Kayle contends this demonstrates the District Court's intent to grant her request for half of those proceeds, the District Court did not specifically grant this request in its Decree. The District Court included Exhibit A in the Decree and specifically imposed a requirement for Shannon to pay his unpaid debts out of his lawsuit proceeds. If the District Court intended to specifically award Kayle what she requested-half of Shannon's lawsuit proceeds for herself-it could have done so. It did not. Kayle made a request, and the District Court, by not adopting Kayle's request, implicitly denied it. While pro se litigants are awarded latitude, that latitude cannot be so great as to prejudice other parties. Cox , ¶ 15. Kayle asked the District Court, and this Court on appeal, to award her nearly $1.4 million of Shannon's award for future lost wages, medical bills, and noneconomic damages after he was disabled in an accident at work. The District Court is required to divide the marital estate equitably. Funk , ¶ 6. In this case, for this Court to transform Kayle's request to an award, when the District Court had the opportunity to specifically make an award in the Decree but did not do so, would do great prejudice to Shannon and would be extremely inequitable. Shannon is the party who was disabled, and Shannon is the party who will live with that disability for the rest of his life. Under the circumstances of this marriage, in no sense could Kayle's interpretation of the Decree-awarding her nearly $1.4 million from the amount meant to compensate Shannon for his lifelong disability-be considered an equitable distribution of the marital estate.

¶23 The District Court's interpretation of its Decree is an issue of law. Levens , ¶ 10. The District Court correctly denied Kayle's request for half of the proceeds from Shannon's California personal injury lawsuit.

CONCLUSION

¶24 The District Court did not err when it determined that it had jurisdiction to impose a special provision related to payments from the proceeds of Shannon's California personal injury lawsuit or when it denied Kayle's request for half of the proceeds from Shannon's California personal injury lawsuit.

¶25 Affirmed.

We concur:

MIKE McGRATH, C.J.

DIRK M. SANDEFUR, J.

BETH BAKER, J.

JIM RICE, J.

      Kayle's attorney indicated she believed Kayle's California counsel had already filed the Decree in California and was attempting to enforce it as a foreign judgment.