Tanner v. Hancock
| Citation | 619 P.2d 1177,5 Kan.App.2d 558 |
| Decision Date | 05 December 1980 |
| Docket Number | No. 80-51382-A,80-51382-A |
| Parties | Kathleen TANNER, Appellant, v. Connie HANCOCK, Appellee. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
A Kansas judgment which has been registered as a foreign judgment under the Uniform Enforcement of Foreign Judgments Act of a sister state, cannot subsequently be registered as a foreign judgment in Kansas under K.S.A. 60-3001 et seq..
George S. Murray, III, and Charles C. Shafer, Jr., Kansas City, Mo., and Mark R. Singer, Overland Park, for appellant.
Laurence M. Jarvis, Kansas City, for appellee.
Before SWINEHART, P. J., and ABBOTT and PARKS, JJ.
This is an appeal from a decision of the District Court of Johnson County sustaining the defendant's motion to cancel the plaintiff's registration of a Missouri judgment. The Missouri judgment resulted from the registration in Missouri of a judgment rendered in the District Court of Johnson County, Kansas.
Plaintiff raises two issues on appeal: (1) whether the trial court erred in refusing to allow the plaintiff to register in Kansas a Missouri judgment which had been registered there on the basis of a Kansas judgment still subject to proceedings in the District Court of Johnson County; (2) whether the trial court erroneously failed to require the defendant to furnish security prior to moving to dismiss and cancel plaintiff's registration of foreign judgment and writ of execution, in violation of K.S.A. 60-3004.
On December 12, 1973, a default judgment was entered in the District Court of Johnson County in the amount of $9,000 against the defendant Connie Hancock. The plaintiff in that action (case No. 55,746) was Donald F. Tanner. In the fall of 1978, Kathleen Tanner, plaintiff in the instant case, requested a general execution on the judgment as assignee of Donald Tanner. On December 26, 1978, the defendant Connie Hancock filed a motion for relief from the judgment pursuant to K.S.A. 60-260(b ). At present, the motion is still pending in the District Court of Johnson County.
Thereafter on June 28, 1979, the plaintiff filed a registration of foreign judgment and writ of execution in the District Court of Johnson County. By this action the plaintiff was attempting to register a foreign judgment entered on January 12, 1977, in the Circuit Court of Jackson County, Missouri, in the sum of $9,000 plus interest and costs. That Missouri judgment was entered as a result of a petition filed on June 29, 1976, by the plaintiff in the Circuit Court of Jackson County, Missouri, as assignee of Donald Tanner. The judgment that plaintiff registered in Missouri was the judgment rendered on December 12, 1973, in the District Court of Johnson County, Kansas, in favor of Donald Tanner.
On July 10, 1979, the defendant filed a "Motion to Dismiss Petition and Cancel Registration" asking the District Court of Johnson County to dismiss plaintiff's action to register the Missouri judgment on the ground that litigation was pending in the District Court of Johnson County in case No. 55,746 which was the basis of the Missouri judgment that plaintiff had sought to register in Kansas. On July 18, 1979, the plaintiff moved for an order requiring the defendant to furnish security in order to maintain her motion and to cancel registration of the foreign judgment. Alternatively, plaintiff sought an order overruling the defendant's motion to cancel registration. She cited K.S.A. 60-3004(a ) and (b ) as the statutory support for her motion. A hearing on the matter was held on July 27, 1979. A journal entry was filed on August 2, 1979, in which the trial court sustained the defendant's motion to dismiss and the order of registration of a foreign judgment was cancelled. On August 22, 1979, plaintiff filed a notice of appeal.
This appeal turns primarily upon one very basic question: Is the judgment which was entered in the Circuit Court of Jackson County, Missouri, on January 12, 1977, under the Missouri Uniform Enforcement of Foreign Judgments Act, Mo.Rev.Stat. § 511.760 (1978), a "foreign judgment" entitled to registration under the Kansas Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq.? We find that it is not. Our answer to this question is crucial to determine whether the Missouri judgment, which was based upon the Kansas December 12, 1973, judgment, was transformed after registration in the Jackson County Circuit Court into a new and independent judgment that then on its own strength could be used to enforce, in Kansas, a judgment originally entered in this state and later registered in Kansas as a foreign judgment. This attempted use of the Uniform Enforcement of Foreign Judgments Acts in Kansas and Missouri presents a novel case of first impression in this state. Neither the parties nor this court have discovered the same, or even a similar issue, in the decisional law of other jurisdictions.
The essence of the plaintiff's argument lies in the following statement from her brief: "The Missouri foreign judgment is a new, personal judgment independent of the original Kansas judgment in Case No. 55746." The next two reasons given in support of plaintiff's argument, that is, that the Missouri judgment is enforceable until it is set aside, vacated or stayed, and that a Missouri judgment based upon a Kansas judgment subsequently vacated and void would be deemed valid by the courts of Kansas, are necessary offshoots of the goal she seeks to obtain, i. e., registration of the judgment in Kansas, rather than reasons for registration in the first place. In addition, plaintiff argues that the trial court's cancellation of the registration on the ground there was pending a K.S.A. 60-260(b ) motion against the original Kansas judgment was erroneous because it violated "ripeness" standards. Further, she claims decisional and secondary authorities recognize the validity of a foreign judgment based upon a judgment of another state later vacated and found void. These last two assertions are also really dependent upon a finding that her basic contention that the Missouri judgment is a new judgment, independent of the original Kansas judgment, is sound.
The crux of the issue, then, is found in the nature of the Missouri judgment. What is its status? Is it a "foreign judgment" within the meaning of K.S.A. 60-3001 et seq., and thereby entitled to registration in Kansas and to all of the enforcement rights afforded such judgments? Defendant argues the judgment is not entitled to registration and the trial court properly cancelled the registration for the following reasons: (1) the doctrine of collateral estoppel barred registration of the Missouri judgment in Kansas; (2) the Missouri judgment is really a "Kansas" judgment and not registrable under K.S.A. 60-3001; (3) a foreign judgment is entitled to no greater force than a local judgment; and (4) plaintiff did not comply with the procedural requirements of K.S.A. 60-3003 because she did not file an affidavit containing the last known post office address of the judgment creditor.
Defendant's last contention may be quickly disposed of at the outset. It should not be considered on appeal because this defense was apparently never asserted at the district court level. The record on appeal bears no trace of any such argument and defendant fails to provide any citation to any action she took raising this defense below. Landrum v. Taylor, 217 Kan. 113, Syl. P 5, 535 P.2d 406 (1975).
The general rule regarding foreign judgments is found in Fischer v. Kipp, 177 Kan. 196, 197-98, 277 P.2d 598 (1954): "(A) properly authenticated judgment rendered by a court of one state is, under the full faith and credit clause of the United States Constitution, Article 4, Section 1, entitled in the courts of another state to the force, the effect, and the full faith and credit, it has by law in the courts of the state where judgment was rendered." Accord, National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 587 P. 870 (1978); Hickman v. Frerking, 4 Kan.App.2d 590, 609 P.2d 682 (1980). While there are recognized exceptions to the full faith and credit requirement, see, e.g., National Equip. Rental, Ltd. v. Taylor; Brockman Equipment Leasing, Inc. v. Zollar, 3 Kan.App.2d 477, 596 P.2d 827 (1979); Restatement (Second) Conflict of Laws, §§ 103-105 (1971), none of them seem precisely applicable here.
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