Reed v. Hess, No. 57598

CourtUnited States State Supreme Court of Kansas
Writing for the CourtSCHROEDER
Citation239 Kan. 46,716 P.2d 555
PartiesGeorge REED, Appellee, v. Paul HESS, et al, Appellants.
Docket NumberNo. 57598
Decision Date28 March 1986

Page 555

716 P.2d 555
239 Kan. 46
George REED, Appellee,
v.
Paul HESS, et al, Appellants.
No. 57598.
Supreme Court of Kansas.
March 28, 1986.

Page 556

Syllabus by the Court

1. The statute of frauds was enacted to prevent fraud and the courts refuse to allow it to be used as a shield to protect a fraud or to enable one to take advantage of his own wrong.

2. Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, if the one who forbears has a reasonable and sincere belief in its validity. Under the facts of this case it is held: Plaintiff's agreement not to sue the defendants for the mishandling of an estate provided adequate consideration for the contract.

3. Discovery orders and sanctions in the nature of civil penalties for violation of such orders as to parties are normally deemed interlocutory and thus nonappealable by the parties as interlocutory appeals because these orders can be reviewed and corrected when final judgment is entered by including them in the appeal from the final judgment.

4. It is within the discretionary powers of a trial court to order a party to pay reasonable expenses including attorney fees incurred by the opposing party for refusal to comply with a discovery order. Under the facts of this case it is held: The monetary sanctions imposed by the trial court against defendants who frustrated the orderly administration of justice by disregarding or showing total indifference to court rules and procedures were reasonable and within the discretionary power of the court.

Page 557

Karl V. Shawver, Jr., of Shawver & Shawver, Paola, argued and on brief, for appellants.

Lynn E. Martin, Paola, argued and on brief, for appellee.

SCHROEDER, Chief Justice:

This is a contract action in which George Reed (plaintiff-appellee) sued Paul Hess, Anne Oliver Hess, and Maxine Oliver (defendants-appellants) for $16,300. During pretrial discovery, the trial court imposed monetary sanctions totaling $900 against defendants and they appeal from the orders imposing those sanctions. The trial court granted plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment and defendants appeal those rulings. The [239 Kan. 47] case was transferred from the Court of Appeals to the Supreme Court on this court's motion.

The controlling facts are not in dispute.

Under the terms of the will of Earl LaFontaine Hennigh, John Oliver, father of Anne Oliver Hess and husband of Maxine Oliver, was named the executor. In the event the testator's real estate was to be sold, John Oliver was granted the first option to purchase certain real estate. If John Oliver declined, the second option to purchase was devised to George Reed, plaintiff herein.

John Oliver was very interested in purchasing the property and had inquired into financial arrangements. However, before he could exercise his first option to purchase, John Oliver died March 22, 1978. On April 19, 1978, Anne Oliver Hess was appointed administratrix de bonis non of the Hennigh estate and she filed a petition for sale of the real estate at a private sale on September 18, 1978. A dispute arose between the parties. Plaintiff contended he had the second opportunity to purchase, while the heirs of John Oliver--Anne Oliver Hess, Maxine Oliver, and Rebecca Jane Oliver (since deceased)--contended they had inherited the first opportunity to purchase. This dispute was eventually taken to the Kansas Court of Appeals where, in an unpublished opinion rendered March 27, 1981, the Court of Appeals ruled the heirs of John Oliver did not inherit his first option to purchase and, therefore, plaintiff was eligible to exercise his option under the terms of the will.

Defendants still wanted to buy the real estate and, on October 27, 1981, plaintiff and defendant Paul Hess entered into the contract in question. Both of them signed the contract at that time. Defendants Anne Oliver Hess and Maxine Oliver signed the contract in September 1982. The contract, which is set forth later in the opinion, contained two provisions. For consideration of $16,300, plaintiff first assigned to defendants any and all rights he acquired under the Hennigh will, including his option to purchase. Plaintiff also agreed, for the same amount of consideration, not to sue the defendants over the mishandling of the Hennigh estate.

On October 5, 1982, as administratrix de bonis non, Anne Oliver Hess again petitioned the probate court for sale of the real estate at private sale. In that petition she stated plaintiff assigned his right to purchase the real property in question to defendants [239 Kan. 48] for the sum of $16,300, and on September 14, 1982, the probate court ordered the land to be sold to pay expenses. Defendants did not pay plaintiff the agreed upon sum and in a separate action plaintiff sued defendants on March 24, 1983, for $16,300, plus twelve per cent interest from October 12, 1981, based on the assignment of plaintiff's rights under the Hennigh will. Subsequently, the probate court ordered the plaintiff to exercise his option to purchase by January 4, 1984. If plaintiff declined, he forfeited his right. The plaintiff never exercised his option to purchase.

In its journal entry filed April 16, 1984, the trial court granted plaintiff's motion for summary judgment on the contract action and denied defendants' motion.

Other facts relevant to the issues on appeal concern monetary sanctions imposed by the trial court during pretrial discovery.

Defendants had failed to answer plaintiff's interrogatories within the statutory

Page 558

time period of 30 days as provided by K.S.A. 60-233(a) and plaintiff moved to compel and to assess attorney fees as provided by K.S.A. 60-237. The trial court granted defendants another four days in which to answer the plaintiff's interrogatories. When defendants again failed to comply, plaintiff moved for a default judgment or, in the alternative, to compel defendants to answer and to award plaintiff reasonable attorney fees. At the hearing on plaintiff's motion, the trial court found defendants had willfully and intentionally disobeyed previous court orders, had deliberately attempted to frustrate the progress of plaintiff's lawsuit to the prejudice of plaintiff, and awarded plaintiff reasonable attorney fees of $300, as a sanction against defendants for their dilatory tactics.

Defendants filed their answers to plaintiff's interrogatories on August 18, 1983. A hearing on plaintiff's motion for a default judgment was held August 22, 1983, and after examining defendants' answers to the interrogatories and finding many of the answers to be deficient and non-responsive, the trial court awarded plaintiff an additional $300 judgment for attorney fees as a result of defendants' failure to comply with 60-233(a).

Finally, on November 10, 1983, a hearing was held on plaintiff's motion to compel defendants to deliver their pretrial questionnaire as ordered by the trial court. Although defendants received notice of the hearing they failed to appear and the trial [239 Kan. 49] court again awarded plaintiff a $300 judgment for reasonable attorney fees as a sanction for defendants' failure to appear, and comply with court orders. This third sanction, however, was imposed only against defendants Paul Hess and Anne Oliver Hess.

The first issue discussed on appeal is whether the trial court erred in granting plaintiff's motion for summary judgment.

The general rules concerning summary judgments are well established as set forth in Allegri v. Providence-St. Margaret Health Center, 9 Kan.App.2d 659, 662-63, 684 P.2d 1031 (1984), as follows:

" 'Summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact remaining, leaving the moving party entitled to a judgment as a matter of law." Zehring v. Wickham, 232 Kan. 704, 706, 658 P.2d 1004 (1983).

" 'As a general rule, an appellate court, in examining the validity of a motion for summary judgment, should read the record in the light most favorable to the party who defended against the motion. It should accept such party's allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.' Stanfield v. Osborne Industries, Inc., 7 Kan.App.2d 416, Syl. p 7, 643 P.2d 1115, aff'd in part, rev'd in part 232 Kan. 197, 654 P.2d 917 (1982).

" 'A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.' Stanfield v. Osborne Industries, Inc., 7 Kan.App.2d 416, Syl. p 8, 643 P.2d 1115; Hendrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 (1976)."

The written contract in question is short and consists of two agreements...

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25 practice notes
  • Flores Rentals, L.L.C. v. Flores, No. 95,535.
    • United States
    • United States State Supreme Court of Kansas
    • March 16, 2007
    ...the Court of Appeals determined that Skahan v. Powell, 8 Kan. App.2d 204, 653 P.2d 1192 (1982), disapproved on other grounds Reed v. Hess, 239 Kan. 46, 716 P.2d 555 (1986), which applied the "collateral order" doctrine to retain the appeal of an order disqualifying counsel, remains controll......
  • Kan. Med. Mut. Ins. Co. v. Svaty, Nos. 102,075, 102,164.
    • United States
    • United States State Supreme Court of Kansas
    • December 10, 2010
    ...for consideration as a basis of jurisdiction. See Harsch, 288 Kan. at 289-90, 200 P.3d 467 (discussing nonappealable order); Reed v. Hess, 239 Kan. 46, 53-54, 716 P.2d 555 (1986) (discovery orders are generally deemed interlocutory and thus nonappealable by the parties as interlocutory appe......
  • Hernandez v. Pistotnik, 121,593
    • United States
    • Court of Appeals of Kansas
    • July 23, 2021
    ..."can be reviewed and corrected when final judgment is entered by including them in the appeal from the final judgment." Reed v. Hess , 239 Kan. 46, 53, 716 P.2d 555 (1986). Typical discovery orders thus make steps toward final disposition of the merits of the case and can be effectively rev......
  • Herr v. McCORMICK GRAIN-THE HEIMAN COMPANY, INC., No. 92-1321-PFK.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 19, 1994
    ...enforceable claim, or an extension of the time for the payment thereof, is a sufficient consideration for a promise."), and Reed v. Hess, 239 Kan. 46, Syl. ¶ 2, 716 P.2d 555 (1983) ("Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, ......
  • Request a trial to view additional results
25 cases
  • Flores Rentals, L.L.C. v. Flores, No. 95,535.
    • United States
    • United States State Supreme Court of Kansas
    • March 16, 2007
    ...the Court of Appeals determined that Skahan v. Powell, 8 Kan. App.2d 204, 653 P.2d 1192 (1982), disapproved on other grounds Reed v. Hess, 239 Kan. 46, 716 P.2d 555 (1986), which applied the "collateral order" doctrine to retain the appeal of an order disqualifying counsel, remains controll......
  • Kan. Med. Mut. Ins. Co. v. Svaty, Nos. 102,075, 102,164.
    • United States
    • United States State Supreme Court of Kansas
    • December 10, 2010
    ...for consideration as a basis of jurisdiction. See Harsch, 288 Kan. at 289-90, 200 P.3d 467 (discussing nonappealable order); Reed v. Hess, 239 Kan. 46, 53-54, 716 P.2d 555 (1986) (discovery orders are generally deemed interlocutory and thus nonappealable by the parties as interlocutory appe......
  • Hernandez v. Pistotnik, 121,593
    • United States
    • Court of Appeals of Kansas
    • July 23, 2021
    ..."can be reviewed and corrected when final judgment is entered by including them in the appeal from the final judgment." Reed v. Hess , 239 Kan. 46, 53, 716 P.2d 555 (1986). Typical discovery orders thus make steps toward final disposition of the merits of the case and can be effectively rev......
  • Herr v. McCORMICK GRAIN-THE HEIMAN COMPANY, INC., No. 92-1321-PFK.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 19, 1994
    ...enforceable claim, or an extension of the time for the payment thereof, is a sufficient consideration for a promise."), and Reed v. Hess, 239 Kan. 46, Syl. ¶ 2, 716 P.2d 555 (1983) ("Forbearance to sue can be good consideration for a promise, regardless of the actual validity of the claim, ......
  • Request a trial to view additional results

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