First Gen. Servs. of Kan. City, Inc. v. Nedrow
| Decision Date | 08 November 2013 |
| Docket Number | No. 109,246.,109,246. |
| Citation | 312 P.3d 398 |
| Parties | FIRST GENERAL SERVICES OF KANSAS CITY, INC., Appellant, v. Jimmy NEDROW and Shirley Nedrow, Appellees. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Wyandotte District Court; William P. Mahoney, Judge.
J. Michael Adams and Patrick M. Reidy, of Monaco, Sanders, Gotfredson, Racine & Barber, L.C., of Kansas City, Missouri, for appellant.
Kyle A, Branson, of Gillette Law Firm, P.A., of Mission, for appellees.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
First General Services of Kansas City, Inc. (First General), appeals from the district court's journal entry of judgment by default dated October 21, 2011, and the court's subsequent memorandum opinion filed November 20, 2012, denying First General's motion to set aside that default judgment. For the reasons stated below, we affirm the district court's order granting default judgment but vacate the award of damages for that judgment and remand with directions for the district court to schedule a hearing to determine the appropriate amount of damages after Jimmy and Shirley Nedrow (the Nedrows) give First General notice of such a hearing as required by K.S.A.2012 Supp. 60–254(c) and Supreme Court Rule 118(d) (2011 Kan. Ct. R. Annot. 209).
On April 24, 2008, First General filed a petition for damages in the District Court of Wyandotte County Limited Actions Department claiming the Nedrows refused to make full payment for labor and materials supplied by First General in repairing fire damage and making other repairs. Specifically, First General asserted the Nedrows caused damages and were unjustly enriched in the amount of $24,882.16. On May 27, 2008, the Nedrows filed their answer and counterclaim for $60,000 in damages for money spent to repair and replace First General's work, which the Nedrows claimed was substandard. The Nedrows also requested reimbursement in the amount of $20,000 for property allegedly stolen by First General's employees and $15,000 for attorney fees. The case was transferred in July 2008 from the limited actions department to the district court to be handled as a Chapter 60 case.
On July 24, 2009, the Nedrows submitted their first request for production of documents. On July 28, 2009, a notice of service regarding the Nedrows' first request for discovery to First General was filed, indicating it was sent to First General's counsel at an address on East 101st Terrace in Kansas City, Missouri. First General never responded to the discovery request, so the Nedrows filed a motion to compel on December 23, 2009, which was faxed to First General's counsel. The district court granted this motion to compel on January 22, 2010. The Nedrows asserted in their motion to compel, as well as in a later response, that they had sent a “golden rule letter” to First General's counsel on October 8, 2009, although the record does not contain such a letter.
On August 22, 2011, the Nedrows filed a “Motion for Judgment upon Defendants' Answer and Counterclaim for Failure of Plaintiff to Respond to Defendants' Discovery Requests.” The certificate of service attached to this motion indicated that it was mailed to First General's counsel at the East 101st Terrace address. However, in an affidavit, First General's counsel said his firm had moved from the East 101st Terrace address to a new office at East 104th Street in Kansas City, Missouri, on July 12, 2010. Counsel further stated he received the Nedrows' motion for judgment via fax on August 22, 2011, and participated in the status conference the following day as a result of a phone call received from the Nedrows' counsel. At this August 23 conference, the district court granted First General an additional 10 days within which to submit responses to the Nedrows' discovery. That same day, First General's counsel emailed his firm's new address to the court clerk.
After First General still did not file any discovery responses, the Nedrows filed a “Second Motion for Judgment upon Defendants' Answer and Counterclaim for Failure of Plaintiff to Respond to Defendants' Discovery Requests” on September 14, 2011. A hearing on this motion was set for October 21, 2011, but First General claims it did not receive notice of the hearing because it had been sent to First General's counsel's old address. The certificate of service attached to the Nedrows' second motion showed that it was mailed to First General's counsel's old East 101st Terrace address.
After the October 21 hearing, the district court issued a journal entry noting that First General made no appearance and “[the Nedrows] are entitled to judgment.” It ordered:
“[The Nedrows] are granted judgment against [First General] for the prayer in their counterclaim in the amount of $75,000.00, and that [the Nedrows] be granted attorneys fees in the amount of $15,000.00 and the costs of this action.”
As First General points out, however, this journal entry fails to expressly state that there was no just reason for delay or to expressly state that First General's claims against the Nedrows had been disposed of. Nonetheless, the case was closed on November 29, 2011, after First General failed to respond to the journal entry.
The Nedrows attempted to collect on the judgment by filing an order to appear for a hearing in aid of execution on June 5, 2012, and a second order to appear for a hearing in aid of execution on July 18, 2012. In his affidavit, First General's counsel stated he first learned of the default judgment entered against his client on June 18, 2012. On September 20, 2012, First General filed a motion to quash the order to appear and a motion to set aside the October 21, 2011, judgment alleging it was not a valid final judgment. It claimed the journal entry was not a final judgment because it did not adjudicate all the claims or rights of all the parties and did not expressly determine there was no just reason for delay. It further claimed even if the judgment was final, the district court could provide relief from the judgment due to surprise or excusable neglect because First General was not properly served with notice of the October 21, 2011, hearing. The Nedrows filed a response to these motions on October 24, 2012.
After a hearing on November 5, 2012, the district court issued a memorandum opinion on November 20, 2012, finding the judgment was final because there was no reason to explicitly state there was no just reason for delay in the journal entry and the judgment resolved all the claims between the parties. It also found no evidence of excusable neglect by First General. The district court declined to allow First General to provide evidence of damages at that late date given it had refused to produce such evidence through discovery and held the existing evidence was sufficient to sustain the award of damages. Finally, the court concluded that the award of attorney fees was proper given First General's noncompliance during discovery.
In its notice of appeal filed on December 21, 2012, First General specifies that it is appealing from the journal entry dated October 21, 2011, and filed November 2, 2011, and the court's subsequent memorandum opinion filed November 20, 2012. Before we can address the issues presented for analysis, we must first determine the jurisdictional boundaries within which our review of those issues will be confined.
The right to appeal in Kansas is statutory. Appeals must be taken in the manner prescribed by statute; otherwise, the appellate court lacks jurisdiction. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003). A timely notice of appeal must be filed within 30 days from the “entry of the judgment.” K.S.A.2012 Supp. 60–2103(a). In this case, the following dates are relevant to the scope of our authority to address the issues presented by First General:
10/21/2011: Default Judgment against First General
The chronology above reflects that First General filed its notice of appeal 30 days after the court's order denying First General's motion to set aside default judgment; thus, it appears we have jurisdiction to review the issues presented by First General on appeal that relate to the court's November 20, 2012, decision to deny the motion to set aside. But the December 21, 2012, notice specifies that First General also is appealing from the October 21, 2011, underlying journal entry of default, a judgment that was entered over a year before the notice of appeal was filed. If, as it appears from these dates, the notice of appeal was untimely filed as to the October 21, 2011, default judgment, we do not have jurisdiction to review the issues presented by First General on appeal relating to the court's decision on October 21, 2011, to enter that default judgment.
But First General argues its notice of appeal from the underlying default judgment was timely filed. In support of this argument, First General contends the October 21, 2011, journal entry was not a final judgment under K.S.A.2012 Supp. 60–2102(a)(4) and, in the absence of an express determination that there was no just reason for delay pursuant to K.S.A.2012 Supp. 60–254(b), it was only after the court disposed of all claims in its November 20, 2012, order that an appeal could have been taken.
K.S.A.2012 Supp. 60–2102(a)(4) provides that the appellate jurisdiction of the Court of Appeals may be invoked by appeal as a matter of right from a final decision in any action, except in an action where a direct appeal to the Supreme Court is required by law. Our Supreme Court has defined a final order as “ “ ‘one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions...
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...Ins. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). 46. Id. 47. First Gen. Servs. of Kan. City, Inc. v. Nedrow, 312 P.3d 398, *9 (Table) (Kan. Ct. App. Nov. 8, 2013). 48. Id. (citing Jenkins v. Arnold, 573 P.2d 1013, 1016 (Kan. 1978)). 49. Id. 50. K.S.A. § 17-6202. ......