Ball v. Credit Bureau Servs., Inc.
| Decision Date | 26 June 2015 |
| Docket Number | 111,144. |
| Citation | 353 P.3d 469 (Table) |
| Parties | James “Steve” BALL, Appellant/Cross-appellee, v. CREDIT BUREAU SERVICES, INC., et al., Appellees/Cross-appellants. |
| Court | Kansas Court of Appeals |
Stephen W. Johnson, of CornerStone Law, LLC, of Newton, for appellant/cross-appellee.
Shannon L. Bell, of Foulston Siefkin LLP, of Wichita, for appellees/cross-appellants Credit Bureau Services, Inc., Roland Belcher, and Rhonda Scully.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
In this employment case, the Sedgwick County District Court denied the motion of Defendants Credit Bureau Services, Inc., Roland Belcher, and Rhonda Scully, for summary judgment on Plaintiff James (Steve) Ball's claim for retaliatory discharge but granted them summary judgment on his other claims. At the parties' request, the district court found all of those rulings appropriate for immediate appeal under K.S.A.2014 Supp. 60–254(b). Although we have serious reservations about the propriety of that procedural order, we address the merits of the summary judgment rulings. In that respect, we find a single error: The district court improvidently dismissed Ball's claim for malicious prosecution. We, therefore, reverse that ruling and reinstate the claim. We otherwise affirm the district court's rulings and remand the case for further proceedings consistent with this decision.
We first offer an overview of the employment relationship between the company—commonly identified in this litigation as CBS—and Ball. We add more particularized facts in discussing the district court's handling of each of the claims. CBS is a collection agency. Ball worked for the company as a sales representative for a little over 3 years—his job was to drum up delinquent accounts from other businesses for CBS to collect. He was paid an annual salary and commissions on the accounts he generated. CBS also furnished Ball a company car. CBS and Ball did not have a written agreement when he started work in August 2007. For a time, Ball returned the company car and used his own, more spacious sedan for his business travels that included calling on potential customers across western Kansas. That arrangement figures directly in this legal dispute.
In January 2010, CBS and Ball revamped his compensation in a way that reduced his guaranteed salary and he says should have substantially increased his commissions if the company honored the agreement. CBS used the occasion of the change in compensation to set out some of the terms and conditions of Ball's employment in a memorandum he and a company representative signed.
The work relationship deteriorated as CBS and Ball disagreed over the commissions he was due. In October 2010, Ball filed a claim with the Kansas Department of Labor for unpaid wages, based on his belief he was owed commissions on accounts he developed earlier in the year. Scully, a CBS executive, fired Ball on November 30, 2010.
In 2011, CBS sued Ball in Finney County District Court for attempting to solicit business from the company's customers. Ball counterclaimed for defamation. The Finney County District Court dismissed the action in April 2012 for a failure of both sides to prosecute their respective claims. Ball based his malicious prosecution count in this case on those proceedings.
About a week after the dismissal of the Finney County suit, Ball filed this case against CBS, Scully, and company president Belcher alleging two counts of breach of contract related to unpaid commissions and to compensation for the use of his car, a count of unjust enrichment related to unpaid commissions, a count of retaliatory discharge for having submitted the wage claim to the Department of Labor, and a count for malicious prosecution. The defendants duly answered, denying any liability to Ball. The pretrial order confirms Ball sought to recover against CBS and the individual defendants in each count, although the petition itself isn't crystal clear on the point. All the defendants have been jointly represented throughout the case, and we generally refer to them collectively as CBS.
The parties engaged in discovery through mid-September 2013. On October 15, CBS filed a motion for summary judgment on all of Ball's claims on behalf of the defendants along with a supporting memorandum and evidentiary materials. Ball filed an opposing memorandum with evidentiary materials. CBS submitted a reply. The district court heard oral argument on the motion and later issued a journal entry denying summary judgment on the retaliatory discharge claim and granting summary judgment on the other claims. The district court found there were disputed issues of material fact bearing on CBS' true reason for firing Ball and the evidence taken favorably to Ball could support a finding that the company acted because of the wage claim made to the Department of Labor.
Several weeks later, the district court signed a journal entry purporting to “certify” those rulings as “final judgments” under K.S.A.2014 Supp. 60–254(b). Ball then filed a notice of appeal on the otherwise interlocutory summary judgment entered against him, and CBS filed a notice of cross-appeal from the district court's denial of summary judgment on the retaliatory discharge claim. The parties have fully briefed those issues in this court. After the merits briefing, we issued a show cause order requesting the parties explain why the appeal should be entertained under K.S.A.2014 Supp. 60–254(b). The parties duly responded.
We first address the merits of Ball's appeal and CBS' cross-appeal and then discuss our concern with the procedural vehicle that has brought this case before us.
As the party seeking summary judgment, CBS has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact as to each legal claim and judgment, therefore, should be entered in the defendants' favor as a matter of law on that claim. See Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 (2013) ; Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) ; Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, CBS must convince the court there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. A factual dispute is material if its resolution would make a difference in how a contested issue must be resolved. Zimmerman v. Brown, 49 Kan.App.2d 143, 149, 306 P.3d 306, rev. denied 298 Kan. –––– (October 30, 2013).
As the party opposing summary judgment, Ball has to point out evidence calling into question one or more material facts presented in support of the motion. See Shamberg, 289 Kan. at 900, 220 P.3d 333 ; Korytkowski, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53. If the party resisting summary judgment does so as to a legal claim, the motion should be denied as to that claim in deference to a jury's resolution of the factual disputes. In addressing a request for summary judgment, the district court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 ; Shamberg, 289 Kan. at 900, 220 P.3d 333. An appellate court applies the same standards in reviewing the entry of a summary judgment. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 ;
We initially look at the breach of contract claim for unpaid commissions and the claim for unjust enrichment based on unpaid commissions, since the district court granted summary judgment on both of those because Ball produced no evidence establishing damages. As we have said, Ball alleged he was due commissions on accounts he generated and that CBS breached their compensation agreement by refusing to pay him. For his unjust enrichment claim, Ball contends CBS promised to compensate him for accounts he took over from a departing employee and then never did.
A party suing on a breach of contract theory must establish a reasonable basis for computing damages as part of the claim. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 789, 107 P.3d 1219 (2005) ; Tyler v. Johnson, No. 109,761, 2014 WL 802322, at *2 (Kan.App.2014) (unpublished opinion). The same is true for an unjust enrichment claim. See Consolver v. Hotze, 51 Kan.App.2d 286, 289, 346 P.3d 1094 (2015) (); Shultz v. Edwards, 3 Kan.App.2d 689, 690, 601 P.2d 9 (1979) (). Accordingly, defendants are entitled to pretrial discovery from plaintiffs regarding their intended evidence on and calculation of damages so they may fairly challenge that aspect of the case at trial. In short, trial by ambush is no more permitted on damages than it is on liability. See Warren v. Heartland Automotive Services, Inc., 36 Kan.App.2d 758, 760, 144 P.3d 73 (2006) ().
Here, CBS served proper discovery on Ball to uncover the factual basis for his claimed damages and received responses that provided no specific information. At his deposition, Ball could not provide a damage amount or information from which it might be determined. We do not mean to suggest that in any given case an individual plaintiff must be able to testify to damages at deposition or trial, since the method and amount may require evidence from expert witnesses. See Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 632, 1 P.3d 891 (2000) ; Schwartz v. Abay, 30 Kan.App.2d 527, 530, 43 P.3d 831 (2002). Rather, the record establishes that Ball provided no meaningful discovery to CBS on the amount he...
To continue reading
Request your trial
-
Holick v. Burkhart
...Supreme Court is quite to the contrary. The Kansas Court of Appeals recognized as much in Ball v. Credit Bureau Svcs., Inc. , 353 P.3d 469 (Table), 2015 WL 4366440 (Kan. Ct. App. June 26, 2015), where the court observed that an "argument that the termination must depend, at least in part, o......
-
McIntyre v. Unified Gov't of Wyandotte Cnty.
...that the "dismissal of a criminal prosecution arguably presents a different mix of legal and policy issues." Ball v. Credit Bureau Servs., Inc., 353 P.3d 469 (Kan. Ct. App. 2015). Accordingly, the Court of Appeals of Kansas doubted that the less stringent standard for civil proceedings woul......