Brown v. Zimmerman

Decision Date04 February 2022
Docket Number123,320
Parties Scott BROWN, Appellee, v. Casey ZIMMERMAN, Appellant.
CourtKansas Court of Appeals

61 Kan.App.2d 537
506 P.3d 300

Scott BROWN, Appellee,
v.
Casey ZIMMERMAN, Appellant.

No. 123,320

Court of Appeals of Kansas.

Opinion filed February 4, 2022.


J. Curtis Brown, of Law Office of J. Curtis Brown, LLC, of Hays, for appellant.

Heather R. Fletcher, of Johnson Fletcher, LLC, of Hays, for appellee.

Before Arnold-Burger, C.J., Green, and Buser, JJ.

Buser, J.:

61 Kan.App.2d 537

After a district magistrate judge entered judgment for Scott Brown in a small claims action, Casey Zimmerman appealed to the district court invoking K.S.A. 2020 Supp. 61-2709(a). Upon reviewing the small claims record of proceedings, the district judge affirmed the judgment on appeal pursuant to K.S.A. 2020 Supp. 20-302b(c)(2). Contending that he was entitled to a trial de novo, not simply a review of the record, Zimmerman appeals to our court from the district judge's ruling.

Upon our review, we find that Zimmerman appealed from the judgment entered pursuant to the Small Claims Procedure Act, K.S.A. 61-2701 et. seq., which was on the record and determined by the district magistrate judge who is not regularly admitted to practice law in Kansas. Under these circumstances, the appeal should have been tried and determined de novo by a district judge as provided in K.S.A. 2020 Supp. 61-2709(a). Accordingly, we reverse the judgment and remand with directions to the district court to conduct a trial de novo.

61 Kan.App.2d 538

FACTUAL AND PROCEDURAL BACKGROUND

Brown and his wife were looking for a cheap but reliable used car for their daughter. They saw an advertisement by Double Z's Trailers, LLC in Hays for a 2002 Oldsmobile Intrigue. Zimmerman is the owner of the dealership. The advertisement said the car had been driven only 135,000 miles and was "100% mechanically sound—no engine light or any other warning lights of any kind. Ready to roll." The advertisement also stated: "This is not a brand new vehicle, so do not waste my time.... If you are expecting a brand new car with a bumper to bumper warranty look elsewhere please."

Brown contacted Zimmerman and arranged to look at the car. According to Brown, Zimmerman told him he had purchased the Intrigue at an auto auction in Topeka and that his wife had driven the vehicle from Topeka to Hays without any

506 P.3d 302

mechanical problems. Zimmerman later denied making the statement and testified that the vehicle had been "trailered" from Topeka to Hays. Brown took the car for a brief, unremarkable test drive on Zimmerman's property. On that eventful day, July 9, 2019, Brown purchased the Intrigue for $2,292.75, sales tax included.

After leaving Zimmerman's business and driving the newly purchased vehicle 20 miles down the highway, the Intrigue's engine overheated. According to Brown, "we ended up limping it off the road at Munjor Exit on I-70." When a telephone conversation with Zimmerman was not especially productive in resolving the problem, Brown had the vehicle towed 90 miles to his home in Gem, Kansas.

A later inspection by Brown under the hood revealed "the upper radiator hose that goes to the thermostat housing was actually tied on with baling wire. And the engine was full of stop leak." A mechanic inspected the car and informed Brown, "at minimum we have a bad head gasket." Repair costs were estimated at between $2,000 and $3,000.

After filing a complaint with the Kansas Attorney General's Office to no avail, Brown filed an action under the Small Claims Procedure Act (SCPA) in Ellis County District Court. Brown complained: "I purchased a vehicle from Mr. Zimmerman under false pretenses. Statements made by the seller were found to be

61 Kan.App.2d 539

contrary to fact, and the vehicle is not operational without substantial repair. I am seeking a refund of my expenses with this fraudulent transaction."

Trial was held on March 9, 2020, before District Magistrate Judge Brendon Boone, who is not regularly admitted to practice law in Kansas. Brown and Zimmerman appeared pro se. Judge Boone informed the parties at the beginning of trial, "Small claims is a little bit like what you see on TV, but without all the drama." Both men were sworn, testified regarding the dispute, and presented 41 pages of documents, papers, text messages, and photographs in support of their legal positions. The trial proceedings were memorialized in a 17-page transcript.

At the conclusion of trial, Judge Boone ruled, "I think, Mr. Zimmerman, you did misrepresent the vehicle, just the aspect of it being a hundred percent mechanical." The Judge also noted that in Zimmerman's "text messages to Mr. Brown, you state you did drive it from Topeka, it didn't heat up." Yet, Zimmerman had testified the vehicle was trailered from Topeka to Hays. Judgment was entered in favor of Brown. Zimmerman was ordered to pay Brown $2,375.25 and interest. Possession of the Intrigue was awarded to Zimmerman.

Zimmerman, now represented by an attorney, filed a timely notice of appeal in the Ellis County District Court, "pursuant to K.S.A. 61-2709(A)" requesting a trial de novo before a district judge. Five months later, District Judge Blake A. Bittel filed a journal entry of appeal that stated: "After review of the record pursuant to K.S.A. 20-302b(c)(2) [j]udgment ... is hereby Affirmed."

Zimmerman filed a motion to reconsider, arguing his appeal should have been heard de novo because, unlike K.S.A. 20-302b(c)(2) which applies generally to decisions of district magistrate judges, K.S.A. 2020 Supp. 61-2709(a) specifically applies to appeals from small claims judgments and provides for a trial de novo. Zimmerman argued that "[t]he more specific statute should control, and the appeal should be heard de novo." Brown opposed the motion and the district judge denied the motion to reconsider.

61 Kan.App.2d 540

Zimmerman filed a timely notice of appeal of Judge Bittel's affirmance of the small claims judgment, and the denial of Zimmerman's motion to reconsider.

DID THE DISTRICT COURT ERR IN AFFIRMING THE SMALL CLAIMS JUDGMENT WITHOUT CONDUCTING A TRIAL DE NOVO ?

On appeal, Zimmerman contends the district court erred in denying his appeal by only reviewing the record because K.S.A. 2020 Supp. 61-2709(a) requires that appeals under the SCPA "shall be tried and determined de novo before a district judge." Brown counters that the district court properly applied K.S.A. 2020 Supp. 20-302b(c)(2)(A) which provides that an appeal of an order or final decision by a district magistrate judge who is not regularly admitted

506 P.3d 303

to the practice of law shall be determined on the record if one was made.

Zimmerman's appeal requires statutory interpretation, which is an issue of law subject to unlimited review. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019). In particular, this appeal necessitates the interpretation of two Kansas statutes, K.S.A. 2020 Supp. 61-2709(a) and K.S.A. 2020 Supp. 20-302b(c)(2).

K.S.A. 2020 Supp. 61-2709(a) states, in relevant part: "An appeal may be taken from any judgment under the small claims procedure act. ... All appeals shall be tried and determined de novo before a district judge , other than the judge from which the appeal is taken." (Emphasis added.)

On the other hand, K.S.A. 2020 Supp. 20-302b(c)(2) states in relevant part:

"(2) In accordance with the limitations and procedures prescribed by law, and subject to any rules of the supreme court relating thereto, any appeal permitted to be taken from an order or final decision of a district magistrate judge: (A) Who is not regularly admitted to practice law in Kansas shall be tried and determined de novo by a district judge, except that in civil cases where a record was made of the action or proceeding before the district magistrate judge, the appeal shall be tried and determined on the record by a district judge. " (Emphasis added.)

Zimmerman contends that K.S.A. 2020 Supp. 61-2709(a) takes precedence over K.S.A. 2020 Supp. 20-302b(c)(2)(A) because it is specific to judgments under the SCPA, compared to

61 Kan.App.2d 541

K.S.A. 2020 Supp. 20-302b(c)(2), which relates to appeals from orders or final decisions of district magistrate judges generally. Zimmerman also points out that the prefatory language "[i]n accordance with the limitations and procedures prescribed by law" provided in K.S.A. 2020 Supp. 20-302b(c)(2) necessarily gives precedence to the appeals procedure for small claims cases set forth in K.S.A. 2020 Supp. 61-2709(a).

For his part, Brown argues that the district court properly applied K.S.A. 2020 Supp. 20-302b. Brown acknowledges Zimmerman's claim that as an overall rule, specific statutes ordinarily control over general statutes. But Brown argues that K.S.A. 2020 Supp. 20-302b is the more specific statute because "it includes details as to what happens if there is a record; what happens if there is not a record; what happens if the District Magistrate Judge...

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  • Wiedemann v. Fraternity
    • United States
    • Kansas Court of Appeals
    • 23 Diciembre 2022
    ...(Emphasis added.) Armstrong v. Lowell H. Listrom & Co. , 11 Kan. App. 2d 448, 451, 725 P.2d 540 (1986) ; Brown v. Zimmerman , 61 Kan. App. 2d 537, 541, 506 P.3d 300 (2022) ("[T]he statutory language is plain, clear, and all-encompassing ... all SCPA appeals—without exception—shall be tried ......

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