Johnson v. Bd. of Dirs. of Forest Lakes Master Ass'n

Citation61 Kan.App.2d 386,503 P.3d 1038
Decision Date10 December 2021
Docket Number123,581
Parties Harold JOHNSON, Appellant, v. BOARD OF DIRECTORS OF FOREST LAKES MASTER ASSOCIATION, Appellee.
CourtCourt of Appeals of Kansas

Michael R. Andrusak, of Adams Jones Law Firm, P.A., of Wichita, for appellant.

T. Chet Compton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee.

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

Green, J.:

Harold Johnson appeals the trial court's order denying his request for trial court attorney fees upon remand from our decision in Johnson v. Board of Directors of Forest Lakes Master Assoc. , No. 120,145, 2019 WL 7207550 (Kan. App. 2019) (unpublished opinion), rev. denied 312 Kan. 892 (2020)a case where we reversed the trial court's order granting the Board of Directors of Forest Lakes Master Association's summary judgment motion and remanded with directions to grant Johnson's summary judgment motion. On appeal, Johnson argues that the trial court wrongly denied his motion for attorney fees because it did so based on an errant interpretation of the Johnson court's mandate. Indeed, because a review of the trial court's decision establishes that it clearly misinterpreted the Johnson court's mandate when denying Johnson's motion upon remand from Johnson , we reverse and remand with directions that the trial court consider and then rule on the merits of Johnson's motion for attorney fees.

In the first part of this opinion, we will be discussing attorney fees incurred at the trial level. In the last section of this opinion, however, we will be discussing attorney fees incurred at the appellate level.

FACTS

In Johnson , we held: (1) that Johnson had standing to sue the Board, (2) that the trial court wrongly granted the Board's summary judgment motion, and (3) that the trial court wrongly denied Johnson's summary judgment motion. There, the Board and Johnson's primary dispute involved whether the Board violated the Association's Declaration of Covenants and Bylaws' voting procedures when trying to pass an amendment to change those procedures. 2019 WL 7207550, at *1-5. In the end, because the record on appeal established that the Board had violated its voting procedures as argued by Johnson in his summary judgment motion, we "reverse[d] the trial court's order granting summary judgment in favor of the Board and direct [ed ] the trial court to grant summary judgment in favor of Johnson ." (Emphasis added.) 2019 WL 7207550, at *1.

Nevertheless, in addition to this voting procedure dispute, in Johnson , we addressed the parties' competing arguments regarding trial court attorney fees. Even though the Board asserted that the trial court properly awarded it attorney fees, we reversed the trial court's award since it hinged on its errant decision to grant the Board's summary judgment motion. 2019 WL 7207550, at *15. And after Johnson moved for appellate attorney fees, we denied Johnson's motion because it was untimely. 2019 WL 7207550, at *14. Similarly, Johnson argued that he was entitled to trial court attorney fees. But we held that Johnson's request was not properly before us for the following reason:

"In his petition, Johnson requested attorney fees. Yet, after making this request, Johnson did not request attorney fees again. That is, he did not assert he was entitled to attorney fees in his summary judgment motion. Nor did he file a separate motion for attorney fees. After filing his petition, Johnson only referenced attorney fees when discussing why the Board was not entitled to attorney fees. As a result, the issue of whether Johnson was entitled to attorney fees was not before the trial court when it denied his motion for summary judgment.
"Issues not raised before the trial court cannot be raised for the first time on appeal. Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 403, 266 P.3d 516 (2011). Because Johnson did not request attorney fees in his summary judgment motion, Johnson cannot request that we grant his request for trial court attorney fees for the first time on appeal ." (Emphasis added.) 2019 WL 7207550, at *14.

Then, after refusing to consider Johnson's attorney fees request since he was raising it for the first time on appeal, the Johnson court gave an alternative reason for denying Johnson's request:

"Furthermore, even if we assumed for argument's sake that the issue of Johnson's attorney fees was before the trial court, Johnson did not object to the trial court's failure to make findings of fact or rulings of law on his attorney fee request. Johnson had the burden of objecting to the trial court's findings and rulings if he believed them inadequate. Consequently, we must presume that the trial court found all necessary facts and rulings for its judgment. Thus, Johnson's request for trial court attorney fees fails for this reason as well. See In re Marriage of Knoll , 52 Kan. App. 2d 930, 941, 381 P.3d 490 (2016) (holding that a party who fails to object to the trial court's inadequate attorney fees findings and rulings cannot claim error on appeal)." 2019 WL 7207550, at *14.

Once Johnson's case was remanded to the trial court upon our Supreme Court's denial of the Board's petition for review, Johnson filed a motion for attorney fees. In this motion, Johnson asserted that because the Johnson court had held that "the issue of whether [he] was entitled to attorney fees was not before the trial court when it denied his motion for summary judgment," he could now move for attorney fees. In particular, he asserted that because he had never formally moved for attorney fees yet had still asked for them in his original petition, "there remain[ed] one claim in [his] case that ha[d] not been resolved."

To support his argument, Johnson pointed to the plain language of K.S.A. 2020 Supp. 58-4621(a) —the statute that allowed him to request reasonable attorney fees because he successfully sued the Board for violating the Kansas Uniform Common Interest Owners Bill of Rights Act. See K.S.A. 2020 Supp. 58-4601. He noted that subsection (c) of K.S.A. 2020 Supp. 58-4621 required the trial court to "liberally administer[ ]" the provision so that he, as "the aggrieved party" was "put in as good a position" as if the Board had never violated the Act. And Johnson argued that our Supreme Court's decision in Bussman v. Safeco Ins. Co. of America , 298 Kan. 700, 317 P.3d 70 (2014), stood for the proposition that a prevailing party may move for attorney fees postjudgment. He thus asked the trial court to award him reasonable attorney fees, which he alleged totaled $52,254.76. At the same time, in his motion, Johnson also asked the trial court to award him trial court costs, which he alleged totaled $958.80.

Even though the Board largely ignored Johnson's request for trial court costs, it responded that the trial court should deny Johnson's motion for attorney fees. It asserted that Johnson was not entitled to such fees because we ruled on the merits of his attorney fees request in Johnson , deciding the issue against him. It argued that this meant that the law of the case doctrine now barred Johnson from moving for attorney fees upon remand.

In support of its argument, the Board stressed that in summarizing the attorney fees issues in Johnson , that court held that "neither party [was] entitled to any attorney fees." 2019 WL 7207550, at *1. It further asserted that by not requesting attorney fees in the trial court's pretrial conference order, Johnson had forever abandoned any claim he may have had about his right to attorney fees. As a result, the Board asked the trial court to deny Johnson's motion for attorney fees without considering the merits, i.e., the reasonableness, of the actual attorney fees that Johnson had requested in his motion.

After the Board filed its response, Johnson filed a reply addressing the Board's assertion that the pretrial conference order needed to include his attorney fees request. He argued that nothing under K.S.A. 2020 Supp. 58-4621's plain language stated that he had to move for attorney fees before the trial court entered the pretrial conference order. Still not entirely clear, it also seems that Johnson argued that our Supreme Court's decision in Bussman as well as our decision in Harder v. Foster , 54 Kan. App. 2d 444, 401 P.3d 1032 (2017), supported that he could move for attorney fees postjudgment. Alternatively, he moved to amend the pretrial conference order to include his request for attorney fees. He noted that K.S.A. 2020 Supp. 60-216(e) —the provision governing pretrial conference orders—and Bussman supported that such orders could later be amended "to prevent manifest injustice." Then, citing to this precedent as well as the Johnson court's holding that he was entitled to summary judgment because the Board had violated its voting procedures, Johnson argued that under the assumption the pretrial conference order needed to include his attorney fee request, the trial court should now amend the pretrial conference order to include his request. He asserted that under the facts of his case, the trial court's denial of his motion to amend would cause him manifest injustice.

Eventually, the trial court held a hearing where it granted Johnson's motion for summary judgment as directed by the Johnson court and considered Johnson's pending motion for attorney fees and costs. The trial court granted Johnson's motion for trial court costs totaling $958.80. But it denied Johnson's motion for attorney fees totaling $52,254.76. It concluded that it could not grant Johnson's motion because on appeal, the Johnson court had "ruled on the merits" of his attorney fees request. It then adopted the Board's argument regarding the law of the case doctrine. Relying on the law of the case doctrine, it determined that because the Johnson court held that Johnson had failed to preserve his attorney fees argument for appeal, "[l]ogic dictate[d]" that he could not move for attorney fees upon remand.

...

To continue reading

Request your trial
2 cases
  • In re Marriage of Freeman
    • United States
    • Court of Appeals of Kansas
    • April 15, 2022
    ...... from Johnson District Court; Erica K. Schoenig, Judge. . ... Johnson v. Board of. Directors of Forest Lakes Master Assn , 61 Kan.App.2d. 386, ......
  • State v. Kriner
    • United States
    • Court of Appeals of Kansas
    • July 29, 2022
    ...constitutes a question of law over which this court has unlimited review. Johnson v. Board of Directors of Forest Lakes Master Assn., 61 Kan.App.2d 386, 393, 503 P.3d 1038 (2021); see State v. Bailey, 315 Kan. _____, 510 P.3d 1160, 1164 (2022). In his brief, Kriner supports his argument tha......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT