Opinion
111,144.
06-26-2015
James “Steve” BALL, Appellant/Cross-appellee, v. CREDIT BUREAU SERVICES, INC., et al., Appellees/Cross-appellants.
Stephen W. Johnson, of CornerStone Law, LLC, of Newton, for appellant/cross-appellee. Shannon L. Bell, of Foulston Siefkin LLP, of Wichita, for appellees/cross-appellants Credit Bureau Services, Inc., Roland Belcher, and Rhonda Scully.
Stephen W. Johnson, of CornerStone Law, LLC, of Newton, for appellant/cross-appellee.
Shannon L. Bell, of Foulston Siefkin LLP, of Wichita, for appellees/cross-appellants Credit Bureau Services, Inc., Roland Belcher, and Rhonda Scully.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this employment case, the Sedgwick County District Court denied the motion of Defendants Credit Bureau Services, Inc., Roland Belcher, and Rhonda Scully, for summary judgment on Plaintiff James (Steve) Ball's claim for retaliatory discharge but granted them summary judgment on his other claims. At the parties' request, the district court found all of those rulings appropriate for immediate appeal under K.S.A.2014 Supp. 60–254(b). Although we have serious reservations about the propriety of that procedural order, we address the merits of the summary judgment rulings. In that respect, we find a single error: The district court improvidently dismissed Ball's claim for malicious prosecution. We, therefore, reverse that ruling and reinstate the claim. We otherwise affirm the district court's rulings and remand the case for further proceedings consistent with this decision.
Factual and Procedural History
We first offer an overview of the employment relationship between the company—commonly identified in this litigation as CBS—and Ball. We add more particularized facts in discussing the district court's handling of each of the claims. CBS is a collection agency. Ball worked for the company as a sales representative for a little over 3 years—his job was to drum up delinquent accounts from other businesses for CBS to collect. He was paid an annual salary and commissions on the accounts he generated. CBS also furnished Ball a company car. CBS and Ball did not have a written agreement when he started work in August 2007. For a time, Ball returned the company car and used his own, more spacious sedan for his business travels that included calling on potential customers across western Kansas. That arrangement figures directly in this legal dispute.
In January 2010, CBS and Ball revamped his compensation in a way that reduced his guaranteed salary and he says should have substantially increased his commissions if the company honored the agreement. CBS used the occasion of the change in compensation to set out some of the terms and conditions of Ball's employment in a memorandum he and a company representative signed.
The work relationship deteriorated as CBS and Ball disagreed over the commissions he was due. In October 2010, Ball filed a claim with the Kansas Department of Labor for unpaid wages, based on his belief he was owed commissions on accounts he developed earlier in the year. Scully, a CBS executive, fired Ball on November 30, 2010.
In 2011, CBS sued Ball in Finney County District Court for attempting to solicit business from the company's customers. Ball counterclaimed for defamation. The Finney County District Court dismissed the action in April 2012 for a failure of both sides to prosecute their respective claims. Ball based his malicious prosecution count in this case on those proceedings.
About a week after the dismissal of the Finney County suit, Ball filed this case against CBS, Scully, and company president Belcher alleging two counts of breach of contract related to unpaid commissions and to compensation for the use of his car, a count of unjust enrichment related to unpaid commissions, a count of retaliatory discharge for having submitted the wage claim to the Department of Labor, and a count for malicious prosecution. The defendants duly answered, denying any liability to Ball. The pretrial order confirms Ball sought to recover against CBS and the individual defendants in each count, although the petition itself isn't crystal clear on the point. All the defendants have been jointly represented throughout the case, and we generally refer to them collectively as CBS.
The parties engaged in discovery through mid-September 2013. On October 15, CBS filed a motion for summary judgment on all of Ball's claims on behalf of the defendants along with a supporting memorandum and evidentiary materials. Ball filed an opposing memorandum with evidentiary materials. CBS submitted a reply. The district court heard oral argument on the motion and later issued a journal entry denying summary judgment on the retaliatory discharge claim and granting summary judgment on the other claims. The district court found there were disputed issues of material fact bearing on CBS' true reason for firing Ball and the evidence taken favorably to Ball could support a finding that the company acted because of the wage claim made to the Department of Labor.
Several weeks later, the district court signed a journal entry purporting to “certify” those rulings as “final judgments” under K.S.A.2014 Supp. 60–254(b). Ball then filed a notice of appeal on the otherwise interlocutory summary judgment entered against him, and CBS filed a notice of cross-appeal from the district court's denial of summary judgment on the retaliatory discharge claim. The parties have fully briefed those issues in this court. After the merits briefing, we issued a show cause order requesting the parties explain why the appeal should be entertained under K.S.A.2014 Supp. 60–254(b). The parties duly responded.
Legal Analysis
We first address the merits of Ball's appeal and CBS' cross-appeal and then discuss our concern with the procedural vehicle that has brought this case before us.
As the party seeking summary judgment, CBS has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact as to each legal claim and judgment, therefore, should be entered in the defendants' favor as a matter of law on that claim. See Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 (2013) ; Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) ; Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, CBS must convince the court there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. A factual dispute is material if its resolution would make a difference in how a contested issue must be resolved. Zimmerman v. Brown, 49 Kan.App.2d 143, 149, 306 P.3d 306, rev. denied 298 Kan. –––– (October 30, 2013).
As the party opposing summary judgment, Ball has to point out evidence calling into question one or more material facts presented in support of the motion. See Shamberg, 289 Kan. at 900, 220 P.3d 333 ; Korytkowski, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53. If the party resisting summary judgment does so as to a legal claim, the motion should be denied as to that claim in deference to a jury's resolution of the factual disputes. In addressing a request for summary judgment, the district court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 ; Shamberg, 289 Kan. at 900, 220 P.3d 333. An appellate court applies the same standards in reviewing the entry of a summary judgment. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 ;
Unpaid Commissions
We initially look at the breach of contract claim for unpaid commissions and the claim for unjust enrichment based on unpaid commissions, since the district court granted summary judgment on both of those because Ball produced no evidence establishing damages. As we have said, Ball alleged he was due commissions on accounts he generated and that CBS breached their compensation agreement by refusing to pay him. For his unjust enrichment claim, Ball contends CBS promised to compensate him for accounts he took over from a departing employee and then never did.
A party suing on a breach of contract theory must establish a reasonable basis for computing damages as part of the claim. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 789, 107 P.3d 1219 (2005) ; Tyler v. Johnson, No. 109,761, 2014 WL 802322, at *2 (Kan.App.2014) (unpublished opinion). The same is true for an unjust enrichment claim. See Consolver v. Hotze, 51 Kan.App.2d 286, 289, 346 P.3d 1094 (2015) (under quantum meruit or unjust enrichment, party entitled to recover value of benefit conferred on other party); Shultz v. Edwards, 3 Kan.App.2d 689, 690, 601 P.2d 9 (1979) (under quantum meruit “there must be proof of damages”). Accordingly, defendants are entitled to pretrial discovery from plaintiffs regarding their intended evidence on and calculation of damages so they may fairly challenge that aspect of the case at trial. In short, trial by ambush is no more permitted on damages than it is on liability. See Warren v. Heartland Automotive Services, Inc., 36 Kan.App.2d 758, 760, 144 P.3d 73 (2006) (“The discovery provisions of our Rules of Civil Procedure were designed from the outset to do away with trial by ambush[.]”).
Here, CBS served proper discovery on Ball to uncover the factual basis for his claimed damages and received responses that provided no specific information. At his deposition, Ball could not provide a damage amount or information from which it might be determined. We do not mean to suggest that in any given case an individual plaintiff must be able to testify to damages at deposition or trial, since the method and amount may require evidence from expert witnesses. See Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 632, 1 P.3d 891 (2000) ; Schwartz v. Abay, 30 Kan.App.2d 527, 530, 43 P.3d 831 (2002). Rather, the record establishes that Ball provided no meaningful discovery to CBS on the amount he claimed to be due him for wrongfully withheld commissions. Accordingly, CBS moved for summary judgment on the grounds Ball could not prove damages, an essential component of his claims for commissions. A district court may grant summary judgment against a party who cannot establish a legally necessary component of his or her claim. Drouhard–Nordhus v. Rosenquist, 301 Kan. 618, 627, 345 P.3d 281 (2015) ; Bank of America v. Inda, 48 Kan.App.2d 658, 668, 303 P.3d 696 (2013). The district court properly did so here.
Ball contends the district court should have considered a spreadsheet his lawyer forwarded to CBS' lawyer after the close of discovery. The district court declined to do so precisely because the document was provided to CBS after the discovery cutoff date. But Ball suggests the district court erred because CBS submitted the spreadsheet as an exhibit to its reply on summary judgment, thereby putting the document in the record. CBS did so simply to illustrate the only information it had been given about Ball's damages for the disputed commissions. The company did not offer the spreadsheet as substantive evidence.
Ball's argument leaves us unpersuaded. A decision to admit or exclude a particular piece of evidence that is presumably relevant largely rests in the district court's sound discretion. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002) ; Ives v. McGannon, 37 Kan.App.2d 108, 120, 149 P.3d 880 (2007). A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). Here, the district court acted within the governing legal rules and understood the circumstances regarding the untimely production of the spreadsheet. And the district court's ruling merely enforced an established deadline closing discovery some 17 months after Ball filed suit. We find no abuse of discretion in that call.
Because the spreadsheet is in the record, we have perused it. The document consists of columns listing, among other things, companies that presumably were customers of CBS, dates, and amounts designated as commissions due and commissions paid. We gather Ball prepared the spreadsheet. Standing alone, the document is something less than admissible evidence establishing a basis from which a jury could reasonably decide damages. It really is nothing more than a compilation of information from unidentified sources and an unexplained computation of commissions. The sources of Ball's information and his method of computation are not self-evident. So even if the spreadsheet had been produced during discovery, CBS would have been entitled to and almost certainly would have wanted to examine Ball about what he contends the document shows. Had the district court chosen to consider the spreadsheet, the document alone would not have furnished a proper basis to defeat CBS' motion for summary judgment. It was not sworn to, as an affidavit would be; nor was it anything other than vague and conclusory absent some extrinsic explanation. See RAMA Operating Co. v. Barker, 47 Kan.App.2d 1020, Syl. ¶ 6, 286 P.3d 1138 (2012) (affidavits used to support or oppose summary judgment must “set forth specific facts”); Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir.2010) (party opposing summary judgment may not rely on “conclusory” affidavits but must set forth facts that would be admissible as evidence at trial); Fischer v. Forestwood Co., Inc., 525 F.3d 972, 978 (10th Cir.2008) ( “ ‘affidavit evidence’ “ submitted in opposition to summary judgment may fail to create a material factual dispute if it is “ ‘nonspecific ... vague, conclusory, or self-serving’ “ [quoting Piercy v. Maketa, 480 F.3d 1192, 1197–98 (10th Cir.2007) ] ).
The district court correctly found Ball failed to present evidence establishing damages as a necessary legal component of his claims for unpaid commissions and correctly entered summary judgment for CBS.
Use of Personal Car
Ball sued CBS for breach of contract because he contends the company reneged on an agreement to pay him a monthly stipend when he started using his own car for business travel. In support of its motion for summary judgment, CBS produced a signed agreement with Ball dated September 1, 2009, resolving their dispute over the car reimbursement. Under the agreement, CBS paid Ball $200 a month for the 6 preceding months and he would go back to using a company car. The district court found Ball failed to produce evidence CBS owed him any additional amount for the use of his car.
Ball attempted to undercut the agreement by citing his deposition testimony in which he acknowledged signing the document and receiving the money but claimed he felt “forced” into accepting the deal. That sort of self-serving conclusion without some factual predicate cannot defeat a request for summary judgment resting on the signed agreement. It actually supports CBS' argument that the agreement reflected a final resolution of the dispute, albeit on terms Ball disliked. Ball would not have described his acceptance as forced if he expected additional negotiation on the matter.
The agreement looks to be an accord and satisfaction of the dispute over the car stipend and, thus, a defense to the claim in Ball's suit. See EF Hutton & Co. v. Heim, 236 Kan. 603, 610–11, 694 P.2d 445 (1985) ; Mitchell v. Certified Finance, Inc., 183 Kan. 787, 789, 332 P.2d 516 (1958) (“accord and satisfaction ... defined ... as being a contract which composes a dispute between the parties and ends the dispute under the terms of a new contract”). We find no error in the district court's ruling granting CBS summary judgment on that claim.
Malicious Prosecution
Ball's malicious prosecution claim stems from the action CBS filed against him in Finney County District Court in 2011 alleging he continued to solicit business from its customers without disclosing he no longer worked for the company—essentially diverting their collection business to his benefit under false or at least misleading pretenses. The suit requested injunctive relief and money damages. Ball filed an answer denying liability and included a counterclaim for defamation. So far as the record in this case shows, nothing else happened in the Finney County litigation. On March 2, 2012, the Clerk of the District Court for Finney County distributed a notice that the case would be dismissed for lack of prosecution in 30 days unless the parties presented good cause otherwise. On April 9, the Finney County District Court filed an order dismissing that case without prejudice.
In this case, filed on April 17, 2012, Ball has alleged the Finney County action constituted malicious prosecution of him. To prevail on the claim, Ball must prove: (1) CBS initiated the Finney County action; (2) CBS did so without probable cause; (3) CBS acted with malice and primarily for reasons other than adjudicating the alleged solicitation of its customers; (4) the Finney County action terminated in his favor; and (5) he sustained damages. See Bergstrom v. Noah, 266 Kan. 829, 836–37, 974 P.2d 520 (1999) ; Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980). The district court found that the Finney County action did not end in Ball's favor given the dismissal of both CBS' claim and his counterclaim for lack of any meaningful effort to pursue them. On appeal, the parties confine their argument to that element of the tort. As presented, the issue is a narrow legal one, since the pertinent facts are uncontroverted.
To prop up the district court's order, CBS essentially argues for a categorical rule that a dismissal for lack of prosecution can never be considered a termination in favor of a defendant and, thus, cannot support an action against the plaintiff for malicious prosecution. CBS contends the dismissal must entail a finding for the defendant based on the merits of the claim to be a favorable termination. Kansas, however, has not adopted such an unyielding rule and, to the contrary, has long recognized that a dismissal for the failure to prosecute may be sufficient for a malicious prosecution claim. Nelson, 227 Kan. at 280, 607 P.2d 438.
In Nelson, the court acknowledged three situations in which a civil claim may be terminated in favor of the defendant: (1) an adjudication by a competent tribunal in defendant's favor; (2) the plaintiff's withdrawal of the claim; or (3) a dismissal of the claim for a failure to prosecute. 227 Kan. at 280, 607 P.2d 438. The court cited Marbourg v. Smith, 11 Kan. 554, 562 (1873), and the Restatement (Second) of Torts § 674 (1976) as allied authority. The Marbourg court explained that there need not be an adjudication on the merits to support a malicious prosecution action. 11 Kan. at 562. Rather, “ ‘[i]f the action has been dismissed ... that is sufficient, if the action has not been commenced again.’ “ 11 Kan. at 562. In keeping with the Restatement approach, Nelson tempered the rule to suggest case-specific circumstances could be considered in looking at whether the plaintiff had probable cause to bring the original suit and whether the termination should be treated as in the defendant's favor. 227 Kan. at 280, 607 P.2d 438 (“Whether a withdrawal or an abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn.”); see Restatement (Second) of Torts § 674, comment j (same).
We confine our discussion to the dismissal of a civil claim as the predicate for a malicious prosecution action. The dismissal of a criminal prosecution arguably presents a different mix of legal and policy issues. See Restatement (Second) of Torts § 660 (1976), comments a and g. In short, the rule CBS would have us apply conflicts with Kansas law found in Nelson and reaching back to Marbourg. Nor does it square with the view of the Restatement authors. The Kansas appellate courts have regularly turned to the Restatement (Second) of Torts as an authoritative source for general principles reflecting well-reasoned policy on a variety of issues. See Estate of Belden v. Brown County, 46 Kan.App.2d 247, 271–72, 261 P.3d 943 (2011). Other courts have also adopted the Restatement (Second) of Torts § 674 as a sound approach to malicious prosecution claims. See, e.g., Cult Awareness v. Church of Scien., 177 Ill.2d 267, 275–79, 226 Ill.Dec. 604, 685 N.E.2d 1347 (1997) (endorsing Restatement treatment of what constitutes “favorable” termination as element of malicious prosecution and noting other jurisdictions, including Kansas, that have done so).
CBS attempts to divert the discussion in Nelson as dicta because that case did not involve a dismissal for failure to prosecute but the plaintiff's voluntary dismissal of one claim in a suit otherwise being actively litigated. The Nelson court, however, rendered a detailed, studied analysis of the elements of malicious prosecution, including when a termination should be treated as in the defendant's favor. Accordingly, the Nelson court's discussion and its embrace of the Restatement must be given what amounts to precedential weight. See State v. Hankins, 49 Kan.App.2d 971, 991–92, 319 P.3d 571 (2014) (Atcheson, J., concurring) (near precedential weight generally should be afforded superior court's detailed analysis of issue even if technically dicta), rev. granted February 19, 2015. CBS cites no Kansas authority indicating Nelson has been overruled or even questioned on this point. Its brief is, instead, populated with foreign caselaw.
Likewise, CBS' argument that the termination must depend, at least in part, on some determination of the underlying merits of the dismissed claim cannot be reconciled with Kansas law on malicious prosecution. Allowing dismissal for want of prosecution, as CBS did here, amounts to an abandonment of the claim. And without some additional explanatory evidence, that's sufficient. See Nelson, 227 Kan. at 280, 607 P.2d 438. Abandonment arguably does reflect the sort of conduct (or nonconduct) that would be consistent with a claim filed for an ulterior purpose and without probable cause. The question of merit really bears more on those elements of malicious prosecution rather than the method of termination. Here, CBS will be free to present and argue its evidence disputing malicious intent and lack of probable cause at trial.
The element requiring a dismissal favoring the defendant principally serves different purposes. First, of course, it requires the case to have been concluded—otherwise defendants could file malicious prosecution suits before the original cases against them have ended. Without the rule, a plaintiff in the original case might prevail in that action while having had to simultaneously defend the malicious prosecution case. Such pyramiding litigation would unfairly increase the effective cost of pursuing the original claim, and the mere prospect of double litigation undoubtedly would deter the filing of otherwise meritorious actions. Secondly, termination of the original case in the plaintiff's favor typically would both establish probable cause for the claim and belie any cognizable damages to the defendant from having been subjected to the litigation—results legally incompatible with a cause of action for malicious prosecution. See Nelson, 227 Kan. at 280–81, 607 P.2d 438.
As Nelson and the Restatement (Second) of Torts recognize, the plaintiff in the original suit dismissed for lack of prosecution may respond to a malicious prosecution action by producing evidence showing that the outcome wasn't favorable to the original defendant under the particular circumstances. The original plaintiff may have obtained the desired relief by agreement with the original defendant or by practical effect if, for example, the defendant spontaneously ceased the objectionable conduct prompting the litigation. Rather than formally dismissing the original suit, the original plaintiff might then simply allow it to wither through inaction and a court-ordered dismissal for lack of prosecution. See Benedetto v. Justin Wooten Const., LLC, 2009 Ark. App. 825, 372 S.W.3d 391, 397 (Ark.App.2009) (dismissal of landlord's ejectment action for lack of prosecution was not termination in tenant's favor supporting malicious prosecution claim where tenant vacated premises, thereby obviating landlord's need to pursue ejectment). CBS has made no such fact-based argument with respect to the Finney County suit. Given the summary judgment record in this case, we would have to draw inferences favoring CBS and against Ball to reach such a conclusion, contrary to the governing standards of review.
More broadly, requiring that the basis for dismissal of the original claim directly reflect lack of merit—CBS' position here—would inhibit malicious prosecution claims in circumstances particularly warranting relief. A plaintiff could file a groundless claim and engage in extensive document discovery and far flung depositions early on in the case simply to inflict heavy litigation expenses on the defendant, only to then pull back and await a dismissal for failing to prosecute or for failing to respond to defendant's later discovery. Neither form of dismissal would, strictly speaking, entail a merit-based determination and, thus, would preclude the defendant from then pursuing a malicious prosecution action, as CBS would have things. See Cult Awareness Network, 177 Ill.2d at 278, 226 Ill.Dec. 604, 685 N.E.2d 1347 (A rule requiring merit-based dismissal “has the unfortunate consequence of allowing those who utilize our courts for wrongful purposes to do so with impunity so long as they obtain a nonfactual disposition of the action[:] ... [A] disingenuous plaintiff can merely nonsuit his or her frivolous lawsuit in order to guard against a future malicious prosecution action.”). Kansas law is otherwise and recognizes malicious prosecution as an independent tort, notwithstanding the availability of sanctions for some frivolous litigation. See, e.g ., K.S.A.2014 Supp. 60–211.
By the same token, however, we recognize the elements of malicious prosecution are to be strictly construed to keep the cause of action from being wielded by wrongdoers as a threat to ward off legitimate suits. Laing v. Shanberg, 13 F.Supp.2d 1186, 1188–89 (D.Kan.1998) (tort of malicious prosecution to be construed narrowly to avoid “discourag[ing] individuals from seeking redress in the courts”). Nothing in our decision upsets the balance Newton and the Restatement have struck between unduly burdening legitimate civil litigation in the first instance and permitting malicious prosecution claims against parties who would file baseless actions for malicious purposes.
Finally, CBS argues Ball should not be permitted to bring a claim for malicious prosecution based on the Finney County suit because his counterclaim for defamation was also dismissed for lack of prosecution. CBS points out the district court granted summary judgment because it “would be hard-pressed to determine who won that battle” in the face of the dismissal of “[t]he parties' competing claims” for lack of prosecution. But CBS' argument and the district court's explanation don't address the proper question. Ball need not have “won” the Finney County case in the sense of receiving a judgment in his favor on either CBS' claim or his counterclaim or both to pursue a cause of action for malicious prosecution in this case. The supposition more or less repackages the notion that the termination must have been merit based without saying so in those words. Ball could have filed a slew of counterclaims and lost them all on the merits without necessarily relinquishing a valid claim that CBS' initial action was meritless, the product of malice, and otherwise satisfied the elements for malicious prosecution. The correct question on summary judgment is simply whether CBS has shown Ball cannot, as a matter of law, prevail on the malicious prosecution claim. And the question speaks only to the character of CBS' claim in the Finney County case. Especially given the narrow challenge CBS has made, the answer must be in Ball's favor. The dismissal of Ball's defamation claim for failure to prosecute is legally irrelevant.
The district court erred in granting summary judgment to CBS on the malicious prosecution claim. We, therefore, reverse that much of the district court's ruling.
Retaliatory Discharge
Ball contends CBS fired him because he filed a claim for unpaid commissions under the Kansas Wage Payment Act, K.S.A. 44–313 et seq. The Kansas Supreme Court has recognized that a worker fired for making a claim under the Act may sue his or her employer for the common-law tort of retaliatory discharge. Campbell v. Husky Hogs, 292 Kan. 225, Syl. ¶ 1, 255 P.3d 1 (2011). The elements of the tort in this context require: (1) The employee file a complaint under the Act; (2) the employer have knowledge of the complaint; (3) the employer take adverse action against the employee; (4) the adverse action be causally connected to, i.e., in retaliation for, the wage complaint; and (5) the employee suffer damages as a result of the adverse action. See 292 Kan. at 235, 255 P.3d 1 ; Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass'n, 272 Kan. 546, 554, 35 P.3d 892 (2001) (retaliation for filing workers compensation claim); Lumry v. State, 49 Kan.App.2d 276, 302, 307 P.3d 232 (2013) (elements of “state retaliatory discharge claim”), rev. granted June 20, 2014.
On summary judgment, CBS submitted that it terminated Ball for job performance problems wholly unconnected to his claim for wages. The issue joined, thus, turned on CBS' intent or motive for firing Ball. Typically, questions of intent are unsuited for determination on summary judgment and are left for juries to answer. See Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989) ; Rosen v. Hartstein, No. 108,479, 2014 WL 278717, at *4 (Kan.App.2014) (unpublished opinion) (“Courts generally should be cautious about granting summary judgment when the controlling issue turns on intent [.]”), rev. denied ––– Kan. –––– (February 19, 2015). The district court found this case presented no exception to the general rule and denied summary judgment. CBS has cross-appealed that ruling, arguing it should have been granted summary judgment.
In employment cases, the search for intent can be elusive. Seldom do employers openly announce—or confirm in writing—an illegal or otherwise improper intent animating a decision to take an adverse job action, such as demotion or termination, against an employee. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (in age discrimination case, Court notes there “ ‘will seldom be “eyewitness” testimony as to the employer's mental processes' “ [quoting Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) ] ). This case is no exception to that rule. So the search necessarily depends on circumstantial evidence.
Forty years ago, the United States Supreme Court developed a burden-shifting method for evaluating circumstantial evidence of an employer's intent in race and other discrimination actions to determine if a case should be submitted to a jury. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Kansas appellate courts have adopted that framework in workplace discrimination and retaliation cases brought under state statutes or common-law theories. Rebarchek, 272 Kan. at 552–53, 35 P.3d 892 ; White v. Tomasic, 31 Kan.App.2d 597, 601, 69 P.3d 208 (2003). The McDonnell Douglas staging of proof first requires the employee to come forward with prima facie evidence of discrimination, thereby triggering the employer's obligation to present a nondiscriminatory reason for the adverse action. Finally, the employee must then point to facts indicating the employer's stated reason to be false or, in other words, a pretext for unlawful discrimination. See Rebarchek, 272 Kan. at 552–53, 35 P.3d 892.
Here, CBS pinned its summary judgment motion on Ball's inability to marshal evidence showing the company's stated reasons for his termination to be pretextual or a faade for unlawful retaliation. CBS, thus, focused on the final step in the McDonnell Douglas analysis, so we needn't separately assess the sufficiency of Ball's prima facie showing or CBS' response. To defeat summary judgment, Ball has to show disputed issue of material fact that if resolved in his favor would permit a jury to find CBS' stated reasons for firing him to be unworthy of belief. See Plotke v. White, 405 F.3d 1092, 1102 (10th Cir.2005) (jury may conclude employer acted unlawfully based on evidence showing employer's asserted justification to be false); Robinson v. City of Arkansas City, Kan. ., 896 F.Supp.2d 1020, 1036 (D.Kan.2012). That's because a jury properly may infer unlawful intent or animus if it disbelieves an employer's stated reasons for demoting or terminating an employee. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“[R]ejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, ‘[n]o additional proof of discrimination is required [.]’ “ [quoting Hicks v. St. Mary's Honor Center, 970 F.2d 487, 493 (8th Cir.1992) ] ).
CBS contends Ball could demonstrate only a weak temporal relationship between the wage claim and his firing as evidence of an actual causal connection. And CBS further asserts a temporal association alone cannot be sufficient to defeat summary judgment when the employer offers legitimate reasons for the adverse job action. But CBS underplays the facts shown in the summary judgment record.
CBS argues Ball filed his wage claim with the Department of Labor on October 20, 2010, and was not fired until November 30—some 40 days later. The summary judgment record does support those dates. But the relevant date is when CBS learned of Ball's wage claim—not when he presented it to the state agency. In a request for admission, CBS acknowledged receiving notice of the claim “sometime in late November of 2010.” In support of its summary judgment motion, CBS submitted Ball's answer to an interrogatory stating the company fired him “within days of learning” that he had filed the wage claim. Although the time between CBS finding out about the wage claim and firing Ball has not been precisely established in the summary judgment record, it is far less than the 40 days the company suggests. Given the summary judgment standards requiring reasonable inferences in favor of the party opposing the motion, a reviewing court could fairly estimate the lapse of time as several days to a week.
Courts recognize that close temporal proximity in combination with other circumstantial evidence suggests an employer's stated reasons for an adverse action to be a cover-up for unlawful intent or purpose. See Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1179 (10th Cir.2006) ( “[E]vidence of temporal proximity in combination with additional circumstantial evidence may give rise to a genuine issue of material fact regarding whether an employer offered a pretextual reason for terminating an employee [.]”); Annett v. University of Kansas, 371 F.3d 1233, 1240 (10th Cir.2004) ; Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.1996) (“We have recognized that protected conduct closely followed by adverse action may justify an inference of retaliatory motive.”). The closer in time, of course, the stronger the inference of pretext and improper intent. See Weth v. O'Leary, 796 F.Supp.2d 766, 782 (E.D.Va.2011) (employer's decision to tell employee she was demoted the day she returned from time off taken under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 (2006)et seq., “gives rise to a strong inference” of impermissible retaliation).
Here, contrary to CBS' argument, there is more than just timing. In the interrogatory answers CBS used to support its motion for summary judgment, Ball stated that Belcher, the company president, “always indicated to me that I was a good salesman.” In the answer, Ball recounted that when he tendered his resignation, Belcher agreed to provide a written statement of terms and conditions of employment to keep him on board. We may reasonably infer that statement to be the January 2010 document Ball and a CBS representative signed. Ball also stated in the interrogatory: “I have never received any indication, letter, conversation, statement, write-up or other reason to believe CBS did not consider me a great employee.” Although we may strip that statement of hyperbole—Ball's characterization of himself as a “great” employee—we are obligated to credit the factual representations and reasonable inferences in considering the motion for summary judgment. At this stage, therefore, we must conclude CBS neither conveyed to Ball any criticism of his work before firing him nor documented for him any substandard job performance.
In support of its summary judgment motion, CBS offered no written performance evaluations of Ball, good or bad; no written warnings to him; or any executive memos or other materials documenting either unacceptable work on his part or counseling sessions with him. To show Ball's substandard job performance, CBS relied solely on a single paragraph constituting its answer to an interrogatory Ball propounded during discovery. Asked to explain the reasons for terminating Ball, CBS offered this answer signed by company vice president Ruth Resley:
“ANSWER: Plaintiff was terminated by letter on 11/30/10 after a rocky relationship with the company. There was not one sole reason for Plaintiffs termination. Many reasons lead up to his termination, including his failure to attend weekly meetings that had been discussed with him many times, his signing of check collection contracts with clients who did not even accept check payments so that he could earn a check contract commission, his vulgar language and poor relationships and combative attitude with co-workers on the job, and going through paperwork in the office that belonged to the title company.”
We question whether CBS may support a motion for summary judgment with its own interrogatory answer when the response does not establish that the person signing the interrogatories for the company had firsthand knowledge of the facts. See Johnson v. Holder, 700 F.3d 979, 982 (7th Cir.2012) (party may not rely on own answer to opponent's interrogatory to oppose summary judgment unless answer plainly based on firsthand or personal knowledge rather than on hearsay that would be inadmissible at trial); cf. Somrak v. Junghans Agency, Inc., No. 107,973, 2013 WL 5422319, at *2 (Kan.App.2013) (unpublished opinion) (information in affidavit presented on summary judgment may be considered only if affiant properly could testify to it at trial). Conversely, a party receiving interrogatory answers may use them as admissions of the answering party. We put that foundational concern aside and look at the substance of CBS' interrogatory answer.
The answer fails to furnish any details about the generically described problems. For example, there is no indication when or how often Ball failed to attend the staff meetings. Although the interrogatory response contends the failure was discussed with Ball, his interrogatory answer, on which CBS also relies, contradicts that representation. We cannot resolve that conflict and must accept Ball's version that he was never cautioned. Similarly, CBS does not explain what vulgar language Ball used, how often, and if anyone complained. The assertion that Ball had “poor relationships and combative attitude with co-workers” is a conclusory assertion insufficient to warrant summary judgment, since it amounts to an opinion without factual support in the record. Although Ball acknowledged disagreements with Scully, that alone doesn't provide the necessary factual underpinning for CBS' claim of legitimate reasons for firing him or, in turn, its motion. In short, the interrogatory answer lacks sufficient specificity to establish facts for consideration on summary judgment. Cf. RAMA Operating Co. v. Barker, 47 Kan.App.2d 1020, Syl. ¶ 6, 286 P.3d 1138 (2012) (affidavits used to support or oppose summary judgment must “set forth specific facts”); Somrak, 2013 WL 5422319, at *2 (vague or conclusory representations in affidavits insufficient to develop material fact on summary judgment).
Especially in the absence of any contemporaneous business records documenting the shortcomings outlined in CBS' interrogatory answer, we are left with what amounts, at best, to conflicting accounts of Ball's work performance during his 3 years with the company. His tenure alone suggests some degree of competence. See MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1121 (10th Cir.1991) (employee's extended tenure in job without material criticism considered prima facie evidence of satisfactory work performance). The lack of documentation of the purported problems supports an inference that any transgressions weren't sufficiently serious to be memorialized or an inference—consistent with Ball's version—that he was considered a fine employee until CBS got wind of his wage claim. Both inferences point toward pretext. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir.2000) (“Carlton never received a negative written performance evaluation or formal warning, nor is there any writing whatsoever criticizing his job performance, indicating that as a reason for his firing for poor job performance was an afterthought.”); Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248, 261 (S.D.N.Y.2009) (“lack of prior notice of underperformance” evidence supporting pretext); Bolin v. Okl. Conf. of the United Methodist Church, 397 F.Supp.2d 1293, 1308 (N.D.Okla.2005) (“absence of negative work reviews,” temporal proximity between protected conduct and termination, and dispute about source of policy employee supposedly violated ostensibly justifying termination are sufficient to deny employer's motion for summary judgment); Hernandez v. Data Systems Intern., Inc., 266 F.Supp.2d 1285, 1305 (D.Kan.2003) (employer's failure to tell employee he was performing inadequately or needed to improve particular skills “highlighted” pretextual quality of stated reasons for discharge). There may be less sinister reasons for the absence of documentation about Ball's work, although CBS hasn't offered one. But such a reason likely would do no more than add to the factual mix and its conflicting inferences.
We have juries to sort out those sorts of conflicts based on courtroom testimony. It is neither our place on appeal nor the district court's place in ruling on summary judgment in the first instance to make those determinations from a record consisting mostly of amorphous interrogatory responses and nonspecific deposition excerpts. So the district court properly denied CBS' motion for summary judgment on Ball's retaliatory discharge claim. To do otherwise would have impermissibly construed the record evidence in favor of CBS to decide a question of intent. Summary judgment isn't supposed to serve that purpose. We affirm the district court's ruling on the retaliatory discharge claim and deny CBS's cross-appeal.
Order under K.S.A.2014 Supp. 60–254(b)
Although we have addressed the merits of this appeal, we pause to comment on the district court's use of K.S.A.2014 Supp. 60–254(b) to treat rulings that would otherwise be interlocutory and, thus, not appealable, as a final judgment. We have serious reservations about the propriety of the district court's decision, especially in light of Wilkinson v. Shoney's, Inc., 265 Kan. 141, Syl. ¶¶ 2–4, 958 P.2d 1157 (1998), and Gillespie v. Seymour, 263 Kan. 650, Syl. ¶ , 952 P.2d 1313 (1998). Despite those concerns, we have chosen not to set aside the district court's order, meaning the final judgment remains intact. Rather, we have taken up the appeal principally because the parties had fully briefed their points long before we first questioned the district court's 60–254(b) order. We issued our show cause order shortly before oral argument. Our decision to reach the merits should not be construed as an endorsement of what procedurally happened in the district court or a suggestion that this case reflects an example of how K.S.A.2014 Supp. 60–254(b) ought to be applied.
Typically when a district court grants summary judgment on some but not all the claims in a case, those rulings are interlocutory and subject to change until the remaining claims have been otherwise resolved. In short, there is no final judgment and nothing to appeal. That's precisely what K.S.A.2014 Supp. 60–254(b) provides. Were the general rule otherwise, a party could appeal a grant of summary judgment on a claim while other claims remained for trial. The result would be piecemeal review of a case in the appellate courts, something to be avoided as inefficient. As the Kansas Supreme Court has said: “[P]iecemeal appeals are discouraged and are considered exceptional.” In re Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010) ; see also State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014) (“Kansas has a clear policy against piecemeal appeals.”); Gillespie, 263 Kan. at 656, 952 P.2d 1313.
Moreover, the time for full appellate review likely will be measured in years. During that process witnesses may become unavailable and memories almost certainly will fade, degrading the quality of the delayed trial. See State v. Salcido–Quintana, No. 105,007, 2012 WL 3289942, at *7 (Kan.App.2012) (unpublished decision) (“[A]n extended delay generally tends to impair the truth-seeking function of a trial because some witnesses may be lost altogether and the memories of those who testify may well be dulled by the passage of time.”), rev. denied 296 Kan. 1135 (2013).
Nonetheless, K.S.A.2014 Supp. 60–254(b) permits the district court to direct entry of a final judgment on some claims while others remain unresolved “when there is no just reason for delay.” So there ought to be a good reason for such an order. In multiparty litigation, for example, a plaintiff taking a default against one of several defendants might request a final judgment under K.S.A.2014 Supp. 60–254(b) to begin collection efforts against the defaulting defendant.
Here, however, we fail to see a particularly sound reason to deviate from the common treatment of summary judgment rulings disposing of fewer than all of the claims in a case. After the district court ruled, Ball and CBS should have either settled the case or tried the remaining claim for retaliatory discharge. Depending on the outcome at trial, either party could then have assessed the soundness of an appeal of any disputed issues, including the summary judgment rulings and preserved trial errors. Lawyers in cases with multiple parties and multiple claims routinely make those calls. This case is no different and should not have been treated as the exceptional one calling for an early entry of final judgment.
Conclusion
The district court's rulings are affirmed, except for the summary judgment granted CBS on Ball's claim for malicious prosecution. That ruling is reversed. CBS's cross-appeal on the retaliatory discharge claim is denied. The case is remanded for trial or other proceedings consistent with this decision on Ball's claims for malicious prosecution and retaliatory discharge.
Affirmed in part, reversed in part, and remanded with directions.