Wiedemann v. Fraternity

• Decision Date: 23 December 2022
• Docket Number: 124,251
• Citation: 522 P.3d 325
• Parties: Frederick Todd WIEDEMANN, Appellant, v. Pi Kappa Phi FRATERNITY, et al., Appellees.
• Court: Kansas Court of Appeals

522 P.3d 325

Frederick Todd WIEDEMANN, Appellant,

v.Pi Kappa Phi FRATERNITY, et al., Appellees.

No. 124,251

Court of Appeals of Kansas.

Opinion filed December 23, 2022

Kevin M. McMaster, of McMaster & McMaster LLC, of Wichita, for appellant.

No appearance by appellees.

Before Cline, P.J., Isherwood and Hurst, JJ.

Hurst, J.:

This appeal stems from Frederick Todd Wiedemann's small claims action against multiple defendants seeking repayment of prepaid expenses for his son's room and board during the COVID-19 disrupted spring semester of 2020. What seems like a simple claim became more complicated when Wiedemann amended his small claims petition and, among other changes, added three new parties—but omitted the only party to the original small claims petition. The small claims court ultimately entered judgment against two entities, one of whom was not included as a party to the amended petition. In order to resolve the apparent civil procedure conundrum, Pi Kappa Phi Fraternity (Fraternity) appealed to the district court which agreed that the small claims court lacked personal jurisdiction to enter judgment against the Fraternity. Wiedemann now appeals the district court's dismissal of the Fraternity from the small claims judgment, although he still has a valid judgment against the second entity—Greek Housing USA.

Finding no error, this court affirms the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Wiedemann prepaid $5,250 for his child's room and board for the spring semester of 2020 at the Pi Kappa Phi Fraternity house at the University of Kansas. Unfortunately, due to the COVID-19 pandemic, Fraternity was forced to close for a portion of that semester. Wiedemann requested a refund for the months his child was unable to occupy the fraternity house due to its closure, but was denied. On May 27, 2020, Wiedemann filed a small claims petition in Sedgwick County District Court against Fraternity, seeking repayment of the prepaid room and board for the months that the fraternity house was closed—in total, he sought $3,100. Wiedemann also requested the return of several of his child's personal items that had been left in the house. Wiedemann then caused the summons to be served on Fraternity's CEO, who was also its attorney and lived in North Carolina.

On the morning of the scheduled trial date—July 1, 2020—Fraternity's attorney requested a continuance citing the ongoing COVID-19 pandemic for his inability to make it to the trial in Kansas. The court granted the requested continuance and postponed the trial just three weeks to July 22. The next week, and prior to the continued trial date, Wiedemann filed an amended petition in which he listed Pi Kappa Phi Properties (Properties), Greek Housing USA (Greek Housing), and Pi Kappa Phi Theta Epsilon Alumni Chapter, Inc. (Alumni Chapter) as the defendants. Notably, Wiedemann did not include Fraternity—the only defendant in the original petition—as a party defendant in the amended petition. Wiedemann also increased his total requested relief to $3,375 and he claimed that he had made the prepayment to Properties, rather than Fraternity. Wiedemann only served Greek Housing and Properties with the amended petition and summons, and he did not serve either Alumni Chapter or Fraternity with the amended petition.

The amended petition and summons both listed July 22—the same date of the rescheduled trial from the original petition—as the trial date. The returns on service from both the petition and amended petition show that Properties and Fraternity are located at the same address. Wiedemann later claimed that he amended the original petition without adding Fraternity because he "believed that it was not necessary to include in the Amended Petition the name of the party, [Fraternity], who had already been named, served, appeared, and obtained the continuance of the trial."

On July 22, 2020, the small claims court granted Wiedemann judgment against both Fraternity and Greek Housing in the amount of $3,375 along with costs of $129.50. There is no transcript from the trial, but the journal entry of judgment notes that the parties—Wiedemann and Fraternity—appeared. Later pleadings suggest that Fraternity was present via a nonattorney representative. The small claims court found Greek Housing in default for its failure to appear. Notably, Properties did not appear in the case caption, was not included in the judgment, and appears to have been crossed out by hand in one of the copies of the journal entry in the appellate record. Wiedemann did not object to the small claims court's failure to include Properties in the judgment.

About one week after the small claims trial, two attorneys entered their appearances on behalf of Fraternity and Fraternity appealed the small claims judgment to the district court pursuant to K.S.A. 2021 Supp. 61-2709(a). In its district court appeal, Fraternity used the same case caption and parties from the small claims court journal entry of judgment, which did not include Properties as a party. Wiedemann did not object to Fraternity's omission of Properties—which was not included in the small claims court judgment—from the case caption in its notice of appeal to the district court.

Wiedemann submitted a proposed pretrial order to the district court that included claims against Fraternity, who was included in the small claims judgment, and he also tried to add claims against Properties. But Properties was neither included in the small claims judgment, nor as a party in the district court appeal. On December 16, 2020, an attorney representing Properties, and claiming to be unable to enter an appearance, filed a motion for continuance of the pretrial conference. Properties opposed Wiedemann's attempt to add claims against it through the district court pretrial order and noted that "No judgment was entered against Properties" and that "Properties is not a party to the appeal." Properties further asserted that it had "a number of defenses to [Wiedemann's] action should [he] wish to make or revive a claim against Properties—but at this juncture, no such claim against Properties exists."

At the pretrial conference, Wiedemann acknowledged that the small claims court had not entered any judgment against Properties, and Properties was not included in the district court appeal. Wiedemann explained, "[i]t's new claims against an entity that there was no judgment entered against," but still requested permission to serve the district court appeal pretrial order on Properties pursuant to K.S.A. 2021 Supp. 60-205(a)(2). The district court denied Wiedemann's request, explaining, "[T]his is a small claims appeal, and the only judgment appealed is the judgment against [Fraternity] ... there needs to be a proper motion before the Court to cross-appeal against [Properties] in order for them to be a proper party in this action." The court then asked Wiedemann if he intended to file a cross-appeal against Properties, but Wiedemann's attorney responded, "Likely not, but I'm not saying definitively no."

Several months later, on March 5, 2021, Fraternity filed a combined motion to dismiss and for relief from small claims judgment. Fraternity argued that Wiedemann had failed to state a claim upon which relief could be granted because he lacked standing as merely the guarantor of the lease and Fraternity was not a party to the lease agreement. Fraternity also sought relief from the small claims judgment due to the excusable neglect of its nonattorney representative at the small claims trial. Finally, Fraternity argued that the small claims judgment against it was void pursuant to K.S.A. 2021 Supp. 60-260(b)(4) and that the small claims court lacked personal jurisdiction over Fraternity because Wiedemann had failed to serve it a copy of the amended petition and, therefore, it did not have notice of Wiedemann's new claims. Additionally, Fraternity was not included as a party in the amended petition. Fraternity claimed that its nonattorney representative only appeared at the July 22 trial because of the continuance of the prior trial date—in which it was included as a party—and it would not have appeared had it known Wiedemann had removed it as a party from the amended petition.

At the district court hearing on Fraternity's motion to dismiss, Fraternity explained that it was only seeking relief for itself on appeal but clarified that since Wiedemann had not cross-appealed to add Properties to the small claims judgment—Properties could not be a party to the district court appeal. Wiedemann reasserted that he should have been permitted to raise claims against Properties in the pretrial order. The district court ruled that

• (1) Wiedemann had standing to pursue reimbursement as the guarantor of his son's lease;

• (2) Fraternity was, as a matter of law, permitted to raise procedural defenses, such as lack of personal jurisdiction, that were not raised in the small claims proceeding; and

• (3) Fraternity was not properly served the amended petition and summons, did not consent to the court's jurisdiction, and did not waive its right to raise personal jurisdiction as a defense on appeal.

The court filed a handwritten motion minutes order explaining its decision and that Fraternity's motion to dismiss was "granted on jurisdiction issue."

Wiedemann filed a motion for relief from judgment and argued the district court made inadequate findings of fact and conclusions of law in granting Fraternity's motion to dismiss. Wiedemann also requested the district court correct the small claims judgment to show that Properties was in default and to enter judgment against it. Although the district court had previously found Properties was not a party to the appeal, Properties nevertheless responded to Wiedemann's motions, again asserting: "No judgment was entered against Properties nor was any action taken as to Properties at that hearing," and further noted that Wiedemann "did not file a cross-appeal" and that "[n]eithe...