Budd v. Walker, 122,446

CourtCourt of Appeals of Kansas
Writing for the CourtPowell, J.
Citation491 P.3d 1273
Parties Donald E. BUDD Jr., Appellee, v. H. Reed WALKER and Reed Walker, PA, Appellants.
Docket NumberNo. 122,446,122,446
Decision Date21 May 2021

491 P.3d 1273

Donald E. BUDD Jr., Appellee,
Reed Walker, PA, Appellants.

No. 122,446

Court of Appeals of Kansas.

Opinion filed May 21, 2021.

Kate B. McKinney, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Overland Park, and David E. Larson, pro hac vice, of the same firm, of Kansas City, Missouri, for appellants.

R. Pete Smith and William C. Odle, of McDowell, Rice, Smith & Buchanan, P.C., of Kansas City, Missouri, for appellee.

Before Arnold-burger, C.J., Powell and Cline, JJ.

Powell, J.:

H. Reed Walker, a Kansas attorney, and his law practice Reed Walker, PA (together referred to herein as Walker), appeal from a jury's verdict finding him liable for malicious prosecution. In 2016, Walker represented Lisa Tanking in litigation related to an alleged common-law marriage with Donald E. Budd Jr., the appellee in this case. After that litigation concluded, Budd sued Walker and Tanking, alleging malicious prosecution for the filing of two divorce actions in Johnson County in 2016. Tanking was later dismissed from the case, and a jury awarded Budd damages of $75,394.41. The jury also approved punitive damages, which the district court then assessed at $35,000, bringing the total damages awarded to Budd at $110,394.41.

Walker now appeals, claiming the district court erred by not granting him summary judgment and by not granting him a directed verdict at the close of the evidence. Walker also argues the district court erred by refusing to allow the admission of evidence relating to Budd's and Tanking's settlement. After a careful review of the record on appeal, we conclude as a matter of law that Budd failed to establish one element of his malicious prosecution claim, namely that he prevailed

491 P.3d 1277

on his underlying litigation against Tanking. Thus, we reverse and remand for the district court to enter judgment for Walker. Because the district court erred in failing to grant judgment as a matter of law to Walker, we also vacate the award of damages to Budd and the assessment of punitive damages against Walker.


Walker has been an attorney licensed to practice law in the State of Kansas since 1977. His practice primarily focuses on family law.

In August or September 2016, Tanking decided to end her relationship with Budd, which had lasted more than 20 years. Ending this relationship prompted Tanking to move out of the home, located in Wyandotte County, the couple had shared for approximately 15 years. The home was originally only in Budd's name but was later reconveyed to "Donald E. Budd, Jr., a single person and Lisa Marie Tanking, a single person." Tanking and Budd were listed on the home's deed as joint tenants with rights of survivorship. When Budd discovered Tanking was ending the relationship and moving out of their home, he asked her to provide him with a settlement number. This request prompted Tanking to retain Walker.

During her meetings with Walker, Tanking advised Walker that she was a coowner of the house and that she wanted to get her share of the equity out of it. Tanking told Walker there had never been a ceremonial marriage between Budd and her, but they were viewed by others as a married couple; Budd had given her a large diamond solitaire ring and a diamond eternity band, which she wore on her left hand; and the couple had hosted a 20-year anniversary party at their home. She also testified she personally believed they were in a common-law marriage. Nevertheless, she informed Walker that she and Budd were never legally married, they had no agreement to be married, and they did not hold themselves out as husband and wife to the public. Further, on Walker's new client intake form, Tanking listed the date and place of the couple's marriage as "zero."

Walker testified that based upon his experience and interpretation of the law, he concluded there was information presented by Tanking to suggest that she and Budd did hold themselves out as husband and wife, despite Tanking's interpretation of the phrase. Walker concluded that he might be able to prove the elements of a common-law marriage based on the length of the couple's cohabitation and their public activity.

Accordingly, Walker filed a petition for divorce on September 15, 2016, on Tanking's behalf in the Johnson County District Court. The petition alleged the existence of a common-law marriage between Tanking and Budd, requested a dissolution of the common-law marriage and division of the marital assets, and asserted an alternative claim for equitable division of the assets based upon Eaton v. Johnston , 235 Kan. 323, 681 P.2d 606 (1984). Walker testified he believed that if the district court did not find a common-law marriage, it would then follow Eaton and equitably divide the jointly owned property.

Yet, when Walker filed this suit, Tanking was not a resident of Johnson County. While she was in the process of moving from the couple's home in Wyandotte County to Johnson County, she did not yet have an official residence, contrary to what the petition alleged. A few weeks after filing, Budd filed a motion to change venue because Tanking did not live in Johnson County. This motion prompted Walker, on Tanking's behalf, to dismiss the lawsuit without prejudice on September 30, 2016, and then refile a second case in the Johnson County District Court the same day, at which point Tanking was a Johnson County resident. Budd did not contest the venue thereafter.

In these filings, Walker requested the Johnson County District Court's standard domestic restraining orders, which were granted. Budd testified these restraining orders froze his assets, except for living and attorney fee expenditures, which made it hard for him to conduct business.

On October 3, 2016, shortly after the refiling of the divorce case in Johnson County, Budd filed an action in Wyandotte County seeking a declaratory judgment that no common-law marriage existed between Budd and

491 P.3d 1278

Tanking. This petition did not seek a division or allocation of any shared property. This filing prompted the district judge presiding over the Johnson County divorce case to stay the case on comity grounds as Budd's case filed in Wyandotte County could possibly be dispositive of whether Budd and Tanking were common-law married.

While the Johnson County case was pending, Budd's attorney requested several times that Walker dismiss that case. Walker refused to do so, as it was the only case in the dispute that sought division of the property at the time. Subsequently, on May 1, 2017, Budd filed a notice of intent in the Wyandotte County case to seek an equitable allocation of the property jointly owned or acquired by himself and Tanking during the time they lived together, citing Eaton , and requested the home be set aside entirely to him.

At some point prior to the June 2017 trial for the Wyandotte County case, Tanking told Walker that she no longer wanted to fight about the parties' marital status or the common-law marriage; she just wanted to get half of the equity from the house. But Walker believed that under Eaton , the existence of a common-law marriage would still have to be litigated for Tanking to receive an equitable distribution.

Budd's Wyandotte County declaratory judgment action proceeded to a bench trial in June 2017. The district court made a finding that a common-law marriage did not exist. Specifically, the district court held:

"[T]he evidence showed that the parties never entered into a ceremonial marriage and never had a common law agreement to be husband and wife, and the second element therefore fails. Additionally the parties never held themselves out as husband and wife. To the contrary, all legal documents, including deeds and tax returns, that the parties filed over the years were filed as single individuals. Furthermore, neither party told third parties that they were married to one another."

The district court then found that Tanking had an equitable interest in the house she and Budd owned together and that she was entitled to a baby grand piano in Budd's custody as her separate property. Rather than order the property sold and proceeds allocated between Budd and Tanking, the district court ordered that the property be appraised and Tanking receive 20% of the appraised value less the amount Budd had invested in the property. The district court found that Budd's investment in the property amounted to $1,052,110.27. Subsequently, the property was appraised at a value of $885,000, which resulted in no net positive monetary interest for Tanking and no payment to her.

On July 12, 2017, the Johnson County case was dismissed due to the Wyandotte County District Court finding there had been no marriage between Tanking and Budd.

Walker appealed the Wyandotte County case on behalf of Tanking. Another panel of this court affirmed the district court's judgment. Budd v. Tanking , No. 118,445, 2018 WL 4262676, at *5 (Kan. App. 2018) (unpublished opinion). After this adverse decision, Walker, again on behalf of Tanking, sought review from the Kansas Supreme Court.

On July 5, 2018, while Tanking's appeal was still pending before the Supreme Court, Budd filed his present suit against Tanking and Walker, alleging malicious...

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1 practice notes
  • Marcus v. Swanson, 122,400
    • United States
    • Court of Appeals of Kansas
    • August 19, 2022
    ...of summary judgment, as an interlocutory ruling, does not itself have any preclusive effect. See Budd v. Walker, 60 Kan.App.2d 189, 197, 491 P.3d 1273 (2021). As a broad proposition, district courts should act "with caution" in granting summary judgment. See Manley v. Hallbauer, 308 Kan. 72......
1 cases
  • Marcus v. Swanson, 122,400
    • United States
    • Court of Appeals of Kansas
    • August 19, 2022
    ...of summary judgment, as an interlocutory ruling, does not itself have any preclusive effect. See Budd v. Walker, 60 Kan.App.2d 189, 197, 491 P.3d 1273 (2021). As a broad proposition, district courts should act "with caution" in granting summary judgment. See Manley v. Hallbauer, 3......

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