Opinion
No. 110,695.
2014-09-26
Linda KISSACK, Appellant, v. FARMERS INSURANCE COMPANY, INC., Appellee.
Appeal from Sedgwick District Court; A.J. Maughan, Judge.Robert T. Cornwell, of Wichita, for appellant.Teresa L. Adams and Stanford J. Smith, Jr., of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
Appeal from Sedgwick District Court; A.J. Maughan, Judge.
Robert T. Cornwell, of Wichita, for appellant. Teresa L. Adams and Stanford J. Smith, Jr., of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Linda Kissack appeals the district court's granting of summary judgment for Farmers Insurance Company, Inc. (Farmers) in this spoliation lawsuit. Kissack raises two issues on appeal. First, she contends the district court did not make findings of fact or conclusions of law in granting Farmers' summary judgment motion. Second, Kissack argues the district court improperly considered documents that were not included in the summary judgment record.
We find that both issues Kissack now raises in our appellate court were not presented to the district court and, therefore, may not be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Moreover, assuming these issues had been raised properly, we hold they are without merit. Accordingly, we affirm the district court's order of summary judgment for Farmers.
Factual and Procedural Background
In her petition against Farmers, filed on September 17, 2012, Kissack alleged an accident occurred on June 21, 2005, when her 1999 Chevrolet Tahoe “on its own volition, accelerated to a high and dangerous rate of speed” resulting in a one-vehicle collision, severely injuring her and extensively damaging the vehicle. Kissack asserted she was the owner of the Tahoe which was insured by Farmers. After the accident, Farmers took possession of the wrecked vehicle.
About July 18, 2005, Kissack's attorney, Robert T. Cornwell, contacted Bob McMillin, the Farmers adjuster handling the accident, who agreed to put a hold on the vehicle so it could be available for an inspection. McMillin also faxed a document to Cornwell stating: “ ‘I have put a hold on the vehicle at our Salvage Pool so you can inspect if needed.’ “ During litigation, however, Farmers denied any implication that “such a hold would be for an indefinite period of time.” In a deposition, McMillan testified that he understood he was only putting a hold on the vehicle until the property damage claim was settled. McMillin testified to his understanding that the insurance claim was settled, the vehicle's title was received, and there “would not be a need to extend the hold” keeping the wrecked vehicle.
On September 9, 2005, in keeping with an insurance settlement, Farmers issued a check in the amount of $11,612.50 to Kissack for the total loss of her vehicle. During September 2005, Kissack executed a power of attorney appointing Farmers to receive title to her vehicle. As of September 16, 2005, Farmers had received “all right, title, and interest in the vehicle.” Kissack cashed the check on October 6, 2005.
In 2007, Kissack sued the Tahoe's manufacturer, General Motors, for products liability and the dealership for warranty claims. On December 26, 2007—almost 2 1/2 years after the accident—Cornwell attempted to inspect the Tahoe, but he was informed the vehicle had been sold by Farmers to a salvage yard on September 30, 2005. According to the salvage yard, the vehicle was dismantled and there was nothing left to inspect. Kissack's lawsuit was dismissed following a motion for summary judgment.
Subsequently, on September 30, 2008, Kissack filed a lawsuit against Farmers, claiming the insurance company failed to preserve the wrecked vehicle. Kissack alleged this failure was spoliation of evidence which prevented her from successfully suing the Tahoe's manufacturer. Shortly after McMillan's deposition, Cornwell, however, filed a motion to stay the proceedings asserting that during McMillin's deposition “he was unable to recall a critically important telephone conversation he had with [Cornwell].” As a result, the motion informed the district court, “it is necessary for [Cornwell] to withdraw as counsel for Plaintiff and be a witness in this case.”
On February 22, 2012, the district court granted Kissack's motion and stayed the matter 30 days to allow Kissack to retain replacement counsel. The order also provided that if replacement counsel did not enter an appearance within 30 days “this matter will be dismissed without prejudice.” Subsequently, new counsel did not enter an appearance and the lawsuit against Farmers was dismissed without prejudice on March 12, 2012.
Kissack's lawsuit against Farmers was refiled by Cornwell on September 17, 2012. On February 28, 2013, Farmers filed a motion for summary judgment. Farmers contended it was entitled to summary judgment because the insurance company did not undertake any duty to assist Kissack in her lawsuit against the vehicle's manufacturer and dealership or to indefinitely preserve the Tahoe. In short, Fanners asserted that “Kansas law does not recognize a tort claim for spoliation of evidence under the undisputed facts of this case.”
Kissack responded that Farmers' motion was premature, Kissack did not sell her wrecked vehicle, discovery might disclose sufficient facts that Farmers' agreement to hold the vehicle constituted a contract, there were contested material facts, and Farmers' actions constituted spoliation under Kansas law.
On May 16, 2013, the district court held a hearing on Farmers' motion for summary judgment. At the outset, the district court adopted the legal standards regarding summary judgment set out in Farmers' motion and summarized, “Court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in the favor of the party against whom the ruling is sought.” The district court also acknowledged that in order to grant summary judgment “it must appear conclusively that there remains no genuine issue or allegation material to the facts and that one of the parties is entitled to judgment as a matter of law.”
Next, the district court addressed Kissack's objection to Farmers' motion which claimed discovery was incomplete. In addressing this objection the district judge noted that
“in looking at the timeline that was given by counsel and the timeline that I was able to derive from all of the pleadings and motions and discovery that had already been completed that was attached as an exhibit, it appears that [in] the 2008 case ... [was] filed on September 30th of 2008 and then was dismissed by agreement of the parties on March 8th of 2012. That was approximately three and a half years.
“The latest case, the 2012 case that we're here on today was filed on September 17th of 2012.”
The district court noted the lengthy duration of the litigation and concluded there were “almost four years open for discovery, and at some point in time we need to be fair to both parties and say ... we've concluded discovery, at least for the summary judgment concerns.”
Employing a two-prong test to determine if Farmers' conduct constituted first party or third party spoliation, the district court ruled that third-party spoliation was at issue because Farmers was not a party to Kissack's 2007 products liability and warranty lawsuit. The district court then discussed the legal parameters of the common law tort of spoliation in Kansas.
The district court identified Koplin v. Rosel Weil Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987) as the “main case” regarding spoliation. The district court summarized its understanding that the intentional interference with a prospective civil action by spoliation of evidence only applied where there is a duty owed by one party to the person seeking recovery. The district court found “there has been no information or evidence presented that there was any type of a special duty” owed by Farmers.
The district court also cited Gabb v. International Brotherhood of Boilermakers, 2013 WL 789506, at *2 (2013) (unpublished opinion), a federal district court case from the District of Kansas which was filed 2 months prior to the summary judgment hearing. According to the district court, Gabb provided: “The window that remains open for an intentional spoliation of evidence claim under Kansas law is for a claim by a plaintiff in the underlying action against a defendant in the underlying action where the defendant destroys evidence to its own advantage.” Applying this caselaw to the facts of the present case, the district court found: “that's not what we have here. [Farmers] did not destroy the evidence for its own advantage.”
Following this discussion, the district court referenced the parties' controverted and uncontroverted facts and determined that “the only true controverted fact was whether or not the plaintiff and her husband owned [the vehicle] or just she owned it,.. and again, that's not a relevant material fact.”
Next, the district court focused on the ownership of the Tahoe at the time it was sold to the salvage company. Noting Kissack's assertion that Farmers did not own the vehicle when they sold it, the district court found
“in looking at the materials that have been provided, [Farmers] received all rights, title and interest [in] the vehicle on September 16th of 2005. At that point in time the title had been signed over to them from [Kissack]. We're all aware that title transfers ownership. At that point in time the vehicle was owned by Farmers, and there is no reason why this Court should impose any duty upon them on how they should treat their property.”
Based upon the district court's factual and legal findings, Farmers' motion for summary judgment was granted.
At the end of the summary judgment hearing, Farmers agreed to prepare the journal entry of judgment. After a proposed journal entry was submitted to Kissack, Cornwell objected because he claimed it did not correctly journalize the district court's actions. The district court then prepared and issued its own journal entry of judgment:
“WHEREUPON, after hearing arguments of counsel, and upon reviewing the record, the court file in this case, the court file in Case No. 08 CV 3795, the applicable law, statutes, and rules, the Court finds based upon the undisputed facts and law presented that Farmers is entitled to summary judgment.
“The Court incorporates by reference the findings of fact and conclusions of law as articulated from the bench in the attached transcript (Attachment A).
“IT IS ACCORDINGLY ORDERED, CONSIDERED, ADJUDGED AND DECREED that defendant Farmers' motion for summary judgment is granted in favor of the defendant on all claims raised (or that could have been raised) and judgment is hereby entered in favor of defendant Farmers Insurance Company, Inc.”
The district court attached to the journal entry a transcript of its bench ruling at the hearing on the motion for summary judgment.
Kissack filed a timely appeal.
After the notice of appeal was filed, Kissack filed an objection to Farmers' request to add documents from the 2008 case file to the record on appeal in this case. Farmers had attached numerous transcripts and other documents from the 2008 case in support of its motion for summary judgment in the 2012 case. The district judge stated, “I want the Court of Appeals to have everything that I considered, obviously.” The district court then asked the parties which documents in the 2008 case file were not part of Farmers' motion for summary judgment.
Following a discussion regarding the individual attachments, the district court noted that it had reviewed the 2008 case file at some point after the refiling of the case in 2012 to understand the potential conflict issue regarding Cornwell's legal representation of Kissack and the need for him to be a material witness in the spoliation litigation. In fact, Farmers, in answering Kissack's petition in the 2012 case, had requested the disqualification of Cornwell because he had asserted in the 2008 case that he was a material witness. The district judge noted that it had looked at documents in the 2008 case, besides those attached to Farmers' motion, “So I think it's appropriate that if it was in my knowledge, then, it should be in the Appeals Court's knowledge as well.”
Kissack filed a separate appeal of this ruling. That appeal was dismissed by our court. Upon Kissack's motion, we granted her request for additions to the record on appeal and supplemental briefing in the present case to address whether the district court improperly considered extrinsic documents in ruling on the summary judgment motion.
Did the District Court Make Findings of Fact and Conclusions of Law?
On appeal, Kissack contends the district court did not make findings of fact or conclusions of law in the journal entry of summary judgment dismissing the case.
We begin our analysis with a summary of the relevant Kansas law. “In a contested matter submitted to the court without a jury—and when the court grants a motion for summary judgment—the court must state its findings of fact and conclusions of law in compliance with K.S.A. 60–252.” Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265). K.S.A.2013 Supp. 60–252(a) requires in granting summary judgment, “the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of evidence, or may appear in an opinion or a memorandum of decision filed by the court.”
Of particular importance to this appeal, as a general rule, a litigant has the responsibility of objecting to inadequate findings of fact and conclusions of law to give the trial court the opportunity to correct them. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012). Where no objection is made in the district court, an appellate court will presume the trial court found all facts necessary to support its judgment. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006).
Next, we must consider whether Kissack's claim of error was preserved for appellate review. Following the district court's ruling from the bench, the district judge inquired, “Counsel, is there anything that I've not addressed?” Cornwell replied, “I do not believe so, Your Honor.” The record is clear that despite the district court specifically providing Cornwell with an opportunity to object to any insufficiency in its summary judgment ruling or to request additional findings of fact or conclusions of law, Cornwell declined the district court's invitation. Moreover, Cornwell did not object to any insufficiency in the district court's subsequently prepared journal entry of judgment. These failures are consequential. As a result of the failures to raise this issue in the district court, we presume the district court made all findings necessary to its judgment. 282 Kan. at 356.
An appellate court, however, may still consider a remand if the lack of specific findings precludes meaningful review. 282 Kan. at 356. As set forth earlier, the district court made numerous oral factual findings and legal conclusions based upon uncontroverted material facts. The district court also identified and discussed pertinent Kansas and federal caselaw applicable to the tort of spoliation. Given this caselaw, the district court concluded that Farmers was a third party to the products liability and warranty litigation. Moreover, the district court found that Farmers did not undertake a duty to preserve the Tahoe as evidence in the other litigation. Finally, the district court concluded that once Kissack conveyed title of the Tahoe to Farmers, the insurance company owed no duty to Kissack to preserve Farmers' own property for Kissack's litigation purposes.
Kissack notes the district court did not address Pirocchi v. Liberty Mut. Ins. Co., 365 F.Supp. 277 (E.D.Pa.1973), in its ruling, but failure to address a particular case from a foreign jurisdiction does not make the ruling insufficient. Moreover, our Supreme Court mentioned Pirochi in the Koplin case, which the district court discussed at length in its bench ruling.
Finally, it should be noted that Kissack does not contend the district court erred in granting summary judgment, only that the district court failed to make required findings of fact and conclusions of law. “[A]n issue not briefed is deemed waived or abandoned.” Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Accordingly, we have not addressed the merits of the spoliation issue, only the sufficiency of the district court's findings.
In summary, upon our review of the journal entry which incorporated the district court's oral ruling from the bench, it is apparent the district court gave meaningful review to the facts and law of the case. The district court's findings of fact and conclusions of law are sufficient to comply with the requirements of K.S.A.2013 Supp. 60–252(a), Supreme Court Rule 165, and O'Brien.
Did the District Court Err in Considering Documents from the 2008 Case File When Ruling on the Motion for Summary Judgment?
For her second issue, which is addressed in supplemental briefing, Kissack contends the district court improperly considered documents from the 2008 case file in granting summary judgment for Farmers in this case.
An understanding of the facts underlying Kissack's argument is important to resolution of this issue. Farmers included documents from the 2008 lawsuit as attachments to its summary judgment pleadings in the 2012 case. At the hearing on Farmer's motion for summary judgment, the district court specifically referenced looking at the 2008 materials—“all of the pleadings and motions and discovery that had already been completed that was attached as an exhibit.” (Emphasis added.)
Kissack did not object in the district court or to our court, regarding Farmers' submission of these 2008 materials attached as an exhibit in support of its summary judgment motion in 2012 or the district court's consideration of these materials. Of note, the 2008 materials were particularly relevant to Farmers' argument that summary judgment in the 2012 case was not premature because of the long duration of both lawsuits which involved identical parties, lawyers, and legal claims.
In the district court's summary judgment journal entry it concluded:
“WHEREUPON, after hearing arguments of counsel, and upon reviewing the record, the court file in this case, the court file in Case No. 08 CV 3795, the applicable law, statutes, and rules, the Court finds based upon the undisputed facts and law presented that Farmers is entitled to summary judgment.” (Emphasis added.)
Kissack did not object to the district court's journal entry or object to any claimed impropriety in the district court's consideration of the 2008 court file.
After Kissack filed this appeal and Farmers sought to make additions to the record on appeal, Kissack filed with the district court an objection to the proposed additions. In particular, citing “Supreme Court Rules 3.01 and 3.02.” Kissack objected to “the inclusion of pleadings in another case [2008 case] between the parties which are not a part of the file of this case.”
The district court held a hearing on Farmers' additions to the record on appeal. In that hearing, the parties attempted to identify and distinguish those 2008 materials attached as exhibits to Farmer's motion for summary judgment and other materials contained in the 2008 court file but not attached to Farmers' motion. During oral argument the district judge stated, “Well, I want the Court of Appeals to have everything that I considered, obviously.” Cornwell replied, “Oh, absolutely.... And we do. We've already designated all that.” From this colloquy it appears that Cornwell was satisfied that the 2008 materials included as attachments in Farmers' motion for summary judgment were appropriately considered by the district court and already included in the record on appeal.
Later in the hearing, while the parties continued their efforts to separate the 2008 materials attached as exhibits to Farmers' motion for summary judgment from other documents found in the 2008 case file, the district judge stated:
“The reason that this is difficult is because I—I agree with Mr. Cornwell, if it's something that I did not consider and it wasn't part of the decision on the Motion for Summary Judgment, then, I don ‘t know that it's fair to have the Appeals Court look at stuff that I didn't look at.
“But the concern that I have with not allowing the 2008 material in is that I recall this case, and I recall that I did look at—because it was a court document and I knew from looking at the 2012 case that it was just more or less a continuation of the 2008 case because I knew Mr. Cornwell got out of the 2008 case [because] he was possibly going to be a witness so there was a conflict. And initially, my concern was, well, why is there not a conflict now so why is Mr. Cornwell still in the case, so I reviewed a lot of the 2008 file.”
Upon hearing the district court's statements, Cornwell did not object to the comments or to the process used by the district court in evaluating Farmers' motion for summary judgment. Ultimately, the district court allowed Farmers' additions to the record on appeal. Once again, the district judge inquired after its ruling, “Is there anything else, counsel?” Cornwell replied, “No, thank you, Your Honor.”
Now, for the first time on appeal, Kissack argues that K.S.A.2013 Supp. 60–256(c)(C)(2) “makes it abundantly clear that the only matters to be considered on a Motion for Summary Judgment are the Court File and anything added by Affidavits or declarations attached to the Memorandum or the opposing party's Response.” Kissack maintains: “If Counsel for Appellant had known, during the Summary Judgment Motion Hearing, that the Trial Court had or was planning to read the entire Court File in the [2008 case] he could have objected and argued that such was not proper.”
Kissack's claim of error is not timely. The conclusion to the district court's journal entry granting summary judgment specifically referenced its review of the 2008 court file. Cornwell did not file an objection. After Kissack appealed, and in ruling on Farmers' motion for additions to the record on appeal, the district court discussed the circumstances surrounding its consideration of materials from the 2008 case file. Once again, Cornwell did not object or raise this issue with the district court.
As discussed earlier, as a general rule, issues not raised before the trial court may not be raised for the first time on appeal. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Cornwell had two opportunities to object to the district court's consideration of materials in the 2008 case file. In neither instance did he bring this issue to the district court's attention. Accordingly, the issue is not properly before our court for review.
If we were to consider this matter, however, it would fail on the merits. From the district court's statements at the hearing on Farmers' motion for additions to the record on appeal, Kissack assumes the district court specifically considered materials in the 2008 case file, which were not included as exhibits in Farmers' summary judgment motion, in deciding that motion. We interpret the district court's remarks differently.
From the district court's statements, we understand that—at some point during the litigation of the 2012 case—the district court reviewed the 2008 case file because of its concern there could be a conflict with Cornwell's legal representation of Kissack since he was a potential material witness in the spoliation case. Indeed, Farmers' answer in the 2012 case requested disqualification of Cornwell based on facts developed during the 2008 case: “[Kissack's] counsel has acknowledged that he is a fact witness in this case and as such, he is not able to represent [Kissack] in this case and must withdraw. ( See Order for Temporary Stay in Case no. 08 CV 3795).”
Quite simply, the meaning of the district court's words is not sufficiently clear for us to make a judgment. Because Kissack did not contemporaneously object in the district court seeking to clarify the matter, the record is too ambiguous to establish any reversible error. “On appeal, error below is never presumed and the burden is on the appellant to make it affirmatively appear.” First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, Syl. ¶ 8, 647 P.2d 1268 (1982). It is Kissack's burden to provide a record showing error, and her failure to meet that burden is fatal to her claim of error.
Additionally, assuming the district court considered materials in the 2008 case file which were not included in the attachments to Farmers' motion for summary judgment, Kissack has not shown that any of these documents were relevant or material to the district court's summary judgment ruling. Certainly, the issue involving whether Cornwell should have been disqualified as counsel in the 2012 case was not a basis upon which the district court rendered summary judgment for Farmers. Indeed, on appeal, Kissack has not identified any aspect of the district court's summary judgment ruling which was allegedly based on a document contained in the 2008 case file but not a part of Farmers' attachments.
On the contrary, as detailed earlier in this opinion, our review of the district court's findings of fact and conclusions of law issued from the bench convinces us that they were amply supported by the parties' uncontroverted facts, thoroughly addressed in their briefs, and based on supporting materials. Kissack has not shown that any purported impropriety in considering extrinsic documents had any effect on the district court's ultimate summary judgment ruling.
Affirmed.