Opinion
No. 108,561.
2013-08-9
Timothy CASEY, Appellant, v. Eugene HUMBLE, Jr., Appellee.
Appeal from Crawford District Court; John C. Gariglietti, Judge. Robert S. Tomassi and Eric W. Clawson, of Wheeler & Mitchelson Chartered, of Pittsburg, for appellant. Richard D. Loffswold, Jr., of Girard, and Burton M. Harding, of Mound City, for appellee.
Appeal from Crawford District Court; John C. Gariglietti, Judge.
Robert S. Tomassi and Eric W. Clawson, of Wheeler & Mitchelson Chartered, of Pittsburg, for appellant. Richard D. Loffswold, Jr., of Girard, and Burton M. Harding, of Mound City, for appellee.
Before Bruns, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy Casey claimed he was wrongfully evicted from pasture land he had leased from Eugene Humble when Humble demanded that Casey remove his cattle from the leased pasture. The district court granted summary judgment to Humble. Casey appeals. In our de novo review, we conclude that there remains no genuine issue of material fact and Humble is entitled to judgment as a matter of law. Thus, we affirm the ruling of the district court.
The standards for granting summary judgment are found in K.S.A. 60–256. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Supreme Court Rule 141 (2012 Kan. Ct. R. Annot. 247) provides the protocol for asserting and challenging a summary judgment motion. It requires the movant to set forth in separately numbered paragraphs the uncontroverted facts upon which the movant relies, supporting each fact with a precise reference to the record. The adverse party must characterize each of the movant's claimed facts as either controverted or uncontroverted. If controverting a claimed fact, the adverse party must concisely summarize the conflicting testimony or evidence and provide a precise reference to the record where such contrary testimony or evidence can be found.
As stated in Lovitt v. Board of Shawnee County Comm'rs, 43 Kan.App.2d 4, 12, 221 P.3d 107 (2009):
“K.S.A. 60–256 and Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) set forth a detailed protocol for proceedings on motions for summary judgment. If [there is a fact that a party] wishes to rely upon in support of its motion, that fact must be addressed in the manner described in Rule 141(a). It must be set forth in a separately numbered paragraph as an uncontroverted contention of fact with a precise reference to where in the record it can be found. This rule is not mere ‘fluff; it serves a necessary purpose, and it means what it says. See McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984).”
On appeal, we apply K.S.A. 60–256 and Rule 141 de novo in considering the motion Humble presented to the district court. Because our review is de novo, we need not address claims that the district court erred in its ruling. Our task is simply to consider the motion anew based on the motion, response, and arguments presented to the district court and to determine whether there remains any genuine issue of material fact that needs to be resolved at trial and, if not, whether the uncontroverted facts entitle Humble to judgment as a matter of law.
In his answer to Casey's petition, Humble denied he had breached the lease and raised various affirmative defenses, including waiver. In his summary judgment motion, Humble relied on four claimed uncontroverted facts which, somewhat summarized, are as follows:
1. On March 7, 2009, Casey and Humble entered into an agreement for Casey to rent pastureland for 1 year beginning April 1, 2009.
Casey's response: Uncontroverted.
2. On June 27, 2009, Humble demanded that Casey remove his cattle from the rented pasture.
Casey's response: Uncontroverted.
3. Humble tendered to Casey $2,400 as a prorated refund of the rent.
Casey's response: Uncontroverted that Humble tendered this amount, but Casey contends, without the precise citation to the record required by Supreme Court Rule 141, that the $2,400 does not constitute a pro rata refund of the amount due. Nowhere in his brief in opposition to the motion does he refer to this contention or explain his response.
4. Casey removed his cattle from the pasture that day or shortly thereafter.
Casey's response: Uncontroverted.
Casey claimed in his petition that he was evicted under duress from the rented pasture. Of course, Casey cannot rely on a mere allegation in his petition to defeat summary judgment. He must come forward with something of evidentiary value to support this contention. See K.S.A. 60–256(e). In his response to Humble's motion, Casey did not provide any additional facts beyond the four asserted by Humble. Thus, the question is whether on these four facts alone is Humble entitled to judgment as a matter of law.
Viewing the facts in the light favoring Casey, the nonmoving party, we note that Humble demanded that Casey remove his cattle about 3 months into a 1–year lease for no apparent reason. This is a clear violation of Casey's rights under the lease.
In Rockgate Management Co. v. CGU Ins., Inc., 32 Kan.App.2d 743, 88 P.3d 798 (2004), a panel of this court looked to New York law in determining whether a party had a cause of action for wrongful eviction. In defining eviction, the court stated:
“One New York court has defined ‘wrongful eviction’ as involving actual interference with possessory rights to real property. See County of Columbia v. Continental Ins., 189 App. Div.2d 391, 395, 595 N.Y.S.2d 988 (1993).
“ ‘Eviction’ is defined as:
‘Dispossession by process of law; the act of depriving a person of the possession of land or rental property which he has held or leased. Act of turning a tenant out of possession, either by re-entry or legal proceedings, such as an action of ejectment. Deprivation of lessee of possession of premises or disturbance of lessee in beneficial enjoyment so as to cause tenant to abandon the premises....' Black's Law Dictionary 555 (6th ed.1990).” Rockgate, 32 Kan.App.2d at 751.
Our Supreme Court considered the wrongful eviction claim of a service station operator against his oil company lessor in Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 542 P.2d 297 (1975). There, the Derby Refining Company, the lessor, erroneously informed Prather,;he lessee of a service station, that his sublease was not valid. Derby retook possession of the station.
“Mr. Prather signed the final audit document, relinquished his keys to the Derby officials, supplied $75 of his cash for making change, supplied the combination to the safe, agreed to sell his small amount of equipment and left the station. Mr. Prather admits no physical force or threats were used, but he justifies his leaving as avoiding a fight.” 218 Kan. at 114.
The Kansas Supreme Court specifically addressed Prather's apparent acquiescence in the eviction.
“On the record here presented great importance cannot be attached to Mr. Prather's alleged acquiescence in the takeover. Actual ouster or physical dispossession is no longer necessary. (49 Am.Jur.2d, Landlord and Tenant, § 301, p. 316.) Forceful ejectment is not required to perfect legal rights. Thus in Woods v. Kirby, 238 Ark. 382, 382 S.W.2d 4 (1964) a farm tenant was held not to have waived his claim for damages for wrongful eviction by voluntarily surrendering possession of the land instead of waiting to be ousted by the sheriff.” Prather, 218 Kan. at 116–17.
The Prather court held that “when Derby as lessor ‘took over’ the possession of the station in question [Prather] had a cause of action for breach of the sublease.” 218 Kan. at 116.
We conclude that when Humble demanded that Casey remove his cattle from the leased pasture, Casey had a cause of action against Humble for wrongful eviction. The question then becomes whether by subsequent conduct Casey waived his wrongful eviction claim against Humble. Humble asserted the doctrine of waiver as an affirmative defense in his answer.
Prather came to the Supreme Court following the district court's entry of summary judgment. Prather was decided in 1975, before Supreme Court Rule 141 was adopted in 1980. In that case, Derby conceded that in considering the motion the court must assume that Derby took over Prather's service station without his consent. But
“Derby contends Mr. Prather, with full knowledge of the facts, voluntarily accepted the return of the security deposit held by Derby under the sublease, and voluntarily accepted payment for goods sold to Derby as part of the transaction alleged to constitute a wrongful termination on the sublease, and therefore, by such conduct waived any claim he might have had against Derby.” 218 Kan. at 115.
The Prather court examined the facts and determined that the defense of waiver did not apply because
“Prather was falsely told he lad no contract, and believing the representation to be true he responded as if he had no valid sublease.
“... Prather's actions fall short of waiver, which has been defined as the intentional relinquishment of a known right. [Citations omitted.] The intent to waive known rights is essential .” 218 Kan. at 117.
Unlike in Prather, Casey did not set forth in his response to the motion any fact from which a factfinder could conclude that his actions in taking the money and removing his cattle was anything other than a voluntary relinquishment of a known right. Further, he does not argue the point in his brief in opposition to the motion.
In his appellate brief, Casey sets forth a whole host of additional facts which, he argues, demonstrate that his actions in taking the money and removing his cattle was not voluntary. But none of these facts is found in his response to Humble's summary judgment motion. Casey now claims on appeal that “Plaintiff plainly advised Mr. Humble that he (Humble) would be responsible for any damages he suffered. Clearly, the Plaintiff has stated his intent: that notwithstanding the acceptance of the money, he was not waiving his claim for injuries and losses he may suffer.” But nowhere in his response to Humble's summary judgment motion does he contend that taking the money and removing his cattle was involuntary or anything other than a waiver of his wrongful eviction claim.
Casey claimed in his response to uncontroverted fact No. 3 that the $2,400 he received from Humble did not constitute full reimbursement for what Humble owed him for the unexpired term of the lease and for what Humble owed Casey in damages when Casey was forced to supply hay for Casey's cattle. The per diem pasture rent was about $8.92. An exact proration of the pasture rent would have required Humble to return $2,470.23 to Casey. Casey received $2,400. In his response to uncontroverted fact No. 3, Casey does not identify what he claims was owed for the hay. But more importantly, he provides no authority to support the proposition that acceptance of an amount less than full compensation for Humble's breach did not constitute a waiver of his claim of wrongful eviction.
The facts set forth in Humble's motion are uncontroverted. Based upon those uncontroverted facts, Humble is entitled to judgment as a matter of law on Casey's claim of wrongful eviction.
Affirmed.