Opinion
No. 107,689.
2013-02-8
Faye E. MINIUM and Charley C. Minium, as Trustees of The Faye E. Minium Trust No. 1, dated June 1, 1991, and as Trustees of the Charley C. Minium Trust No. 1, dated June 1, 1991, and their successors; and Tyler J. McDonald, Appellees, v. CITY OF MORLAND, Kansas, Appellant.
Appeal from Graham District Court; Preston A. Pratt, Judge. Tony A. Potter, of Potter Law Office, P.A., of Hill City, for appellant. David J. Harding, of Harding Law Office, of WaKeeney, for appellees.
Appeal from Graham District Court; Preston A. Pratt, Judge.
Tony A. Potter, of Potter Law Office, P.A., of Hill City, for appellant. David J. Harding, of Harding Law Office, of WaKeeney, for appellees.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
The City of Morland (the City) appeals from the district court's decision to grant a permanent injunction against the City, which prohibits the City from attempting to collect unpaid charges for utility services previously provided to property currently owned by Tyler McDonald through (1) certification of an existing lien on the property or (2) refusal to provide utility services to such property.
Facts
In 2000, Faye E. Minium and Charley C. Minium, as trustees of the Faye E. Minium Trust and the Charley C. Minium Trust (the Miniums), sold their residential property to Robbie and Sheila Tuttle (the Tuttles) under an installment land contract. The Tuttles took possession, and Robbie contracted with the City for utility services.
In 2009, Robbie failed to pay for the utility services, and the Tuttles defaulted on their contract with the Miniums. The City disconnected utilities from the property due to Robbie's unpaid charges for service. The City sued Robbie and obtained judgment against him for the unpaid charges, plus costs and interest, in the amount of $1,048.21. The City tried unsuccessfully to garnish Robbie's assets to collect on the judgment.
Pursuant to the terms of their contract, upon default by the Tuttles, the Miniums regained possession of the property without taking any legal action. They subsequently sold it in January 2011 to McDonald under another installment land contract. In May 2011, McDonald requested the City provide utilities to the property. The City refused to provide utility service because of unpaid charges for services previously provided to the property. In June 2011, McDonald satisfied all of his obligations under the installment land contract and the Miniums transferred legal ownership of the property to him immediately thereafter.
On September 2, 2011, the Miniums and McDonald (Appellees) filed a petition and an application for a restraining order against the City to restore utility service to the property. On September 6, the district court granted an ex parte restraining order under K.S.A. 60–902. After a hearing, the district court issued a temporary injunction under K.S.A. 60–902 ordering the City to provide utility service to the property during the pendency of the proceeding.
On January 4, 2012, the City filed a motion for summary judgment. The City mailed a copy of the motion and supporting memorandum to Appellees' counsel by regular mail that same day. On January 6, Appellees filed their own motion for summary judgment. Appellees filed their response to the City's motion for summary judgment on January 26. After hearing arguments on the motion and cross-motion for summary judgment, the district court issued an order dismissing the Miniums for lack of standing and granting a permanent injunction against the City. Specifically, the injunction prohibits the City from certifying the existing lien on the property or refusing to provide utility services to such property.
Analysis
The City challenges the district court's summary judgment ruling on both procedural and substantive grounds. Procedurally, the City claims the uncontroverted facts set forth in its motion for summary judgment are deemed admitted by virtue of McDonald's untimely response to its motion, and the permanent injunction cannot be upheld in light of the facts admitted. Substantively, the City claims the district court's decision to grant the permanent injunction was not supported by the evidence, even if all facts and inferences which may reasonably be drawn from that evidence are resolved in favor of McDonald. In addition, the City claims the district court should have awarded attorney fees and costs to the City under K.S.A.2011 Supp. 60–211 because it prevailed on the issue of the Miniums' standing. We address each of these claims in turn.
I. The procedural challenge to summary judgment
A party responding to a motion for summary judgment must file a response within 21 days after the motion is served. K.S.A.2011 Supp. 60–256(c)(1)(B); Supreme Court Rule 141 (2012 Kan. Ct. R. Annot. 247). Under K.S.A.2011 Supp. 60–205(b)(1), “service under this section must be made on the attorney unless the court orders service on the party” when the party to be served is represented by an attorney. A paper is served under that same section by “mailing it to the person's last known address, in which event service is complete upon mailing.” K.S.A.2011 Supp. 60–205(b)(2)(C). “When a party may or must act within a specified time after service and service is made under subsections (b)(2)(C), (D), (E) or (F) of K.S.A. 60–205, and amendments thereto, three days are added after the period would otherwise expire under subsection (a).” K.S.A.2011 Supp. 60–206(d).
Here, the City filed its motion for summary judgment and supporting brief on January 4, 2012, and mailed a copy to McDonald's counsel by regular mail that same day. McDonald filed his response to the City's motion for summary judgment on January 26, 2012—22 days after the City served its motion. Relying on the fact that it served its motion for summary judgment and brief on McDonald's counsel instead of McDonald, the City argues K.S.A.2011 Supp. 60–205(a) applies instead of K.S.A.2011 Supp. 60–205(b); thus, no extension of time is warranted under K.S.A.2011 Supp. 60–206(d), the response must be deemed untimely, and the uncontroverted facts therefore must be deemed admitted.
But the statute cited by the City does not support its argument. K.S.A.2011 Supp. 60–205(b)(l) provides that when a party is represented, service under the entire section of K.S.A.2011 Supp. 60–205(b) “must” be made on the attorney. Subsection (b)(1) therefore applies to all the methods of service enumerated in subsection (b)(2), including the provision of subsection (b)(2)(C) that allows service by mailing a paper to the person's last known address. Furthermore, the language of K.S.A.2011 Supp. 60–205(b)(2) demonstrates the legislature's intent to have subsection (b)(1) apply to all the methods of service in subsection (b)(2). Subsection (b)(2) refers to “the person” rather than “the party.” This language underscores that service may be made upon either the party or the party's attorney if the party is represented. Consequently, when a party is represented by an attorney, service by mail must be made to the attorney's last known address.
The City served its motion on McDonald's attorney by mail under K . S.A.2011 Supp. 60–205(b)(2)(C); thus, K.S.A.2011 Supp. 60–206(d) applied and added 3 days to McDonald's normal 21–day period to respond to the City's motion for summary judgment. Therefore, McDonald's response—made 22 days after the City's service—was timely, and the district court did not err in so finding.
II. The substantive challenge to summary judgment
A. Summary judgment standard
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. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. David v. Hett, 293 Kan. 679, 682, 270 P.3d 1102 (2011). When the controlling facts are based on the parties' joint stipulation, an appellate court determines de novo whether the moving party is entitled to judgment as a matter of law. Klein v. Oppenheimer & Co., 281 Kan. 330, Syl. ¶ 8, 130 P.3d 569 (2006). Although the parties did not stipulate to the controlling facts in this case, they do not appear to disagree as to any material fact. Therefore, our review of the district court's order is de novo. B. Interpretation of K.S.A.2011 Supp. 12–808c
At the heart of the parties' dispute is interpretation of the language set forth in K.S.A.2011 Supp. 12–808c, which provides in relevant part:
“(a) Except as provided in subsection (b), if any person, firm, corporation, organization, political or taxing subdivision of the state or other entity other than the state of Kansas and the federal government residing, occupying, using or operating on property to which is provided utility services by a utility owned or operated by a municipality, neglects, fails or refuses to pay the fees or charges for such service, the unpaid fees or charges shall constitute a lien upon the property to which such utility service is provided. The amount of the unpaid fees or charges shall be certified by the governing body of the municipality to the county clerk of the county in which such property is located, to be placed on the tax roll for collection, subject to the same penalties and collected in the same manner as other taxes are collected by law. The governing body may refuse the delivery of such utility service as otherwise permitted by law until such time as such charges are fully paid.
“(b) A lien shall not attach to property for unpaid utility fees or charges, when the utility service has been contracted for by a tenant and not by the landlord or owner of the property to which such service is provided.”
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P .3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). “Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.” K.S.A.2011 Supp. 77–201Second. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
We begin our discussion of the statute by examining the district court's interpretation of K.S.A.2011 Supp. 12–808c. Specifically, the court found subsection (a) of the statute governs the process for creating, attaching, and enforcing a lien for unpaid utility services provided by a municipality. The court found subsection (b) precludes a lien for unpaid utility fees from attaching to property when the utility service was contracted for by a tenant.
Finding no ambiguity in the statutory language, the district court framed the first issue for decision as whether the Tuttles were tenants within the meaning of K.S.A.2011 Supp. 12–808c(b). Relying on the ordinary meaning of the word “tenant” as found in Black's Law Dictionary, the court found the Tuttles were tenants under K.S.A.2011 Supp. 12–808c(b) at the time Robbie contracted for utility service and, as a result, a lien for unpaid utility charges under K.S.A.2011 Supp. 12–808c(a) never attached to the property. In light of this finding, the court ultimately held the City could not refuse to provide utility services to the property as a mechanism to enforce a nonexistent lien for purposes of collecting past due charges.
1. The exception in K.S.A.2011 Supp. 12–808c(b) is not applicable here
The City argues that the district court erred in finding the Tuttles were tenants within the meaning of K.S.A.2011 Supp. 12–808c(b) at the time Robbie contracted for utility service; thus, the exception in subsection (b) is not applicable to the facts as presented in this case. Although not for the reasons stated by the City, we agree that subsection (b) is not applicable here.
The Tuttles agreed to pay a down payment and monthly installments to the Miniums, upon completion of which they would receive title to the property from an escrow agent. In event of their default, the Tuttles agreed that the Miniums could elect to treat the contract as terminated. Given the terms of this agreement, we necessarily conclude that the Miniums sold their residential property to the Tuttles under an installment land contract. See Black's Law Dictionary 868 (9th ed.2009) (defining “installment sale” as “[a] conditional sale in which the buyer makes a down payment followed by periodic payments and the seller retains title or a security interest until all payments have been received”).
Kansas courts consistently have held that a purchaser in a sale of real estate under an installment land contract (also called a contract for deed by Kansas courts) “becomes the equitable owner of the realty” and the seller is the “holder of the legal title.” Graham v. Claypool, 26 Kan.App.2d 94, 95–96, 978 P.2d 298 (1999). In In re Estate of Hills, 222 Kan. 231, 241–42, 564 P.2d 462 (1977), the Kansas Supreme Court found that the purchasers under an installment sales contract were “more than tenants” because they had possession of the land and a deed had been executed and placed in escrow beyond the control of the sellers. The court also noted that when a deed is delivered to a bank to be placed in escrow, it is “ ‘in legal effect a delivery of it to the grantee, subject only to the subsequent condition of final payment.’ “ 222 Kan. at 238 (quoting Gault v. Hurd, 103 Kan. 51, 53, 172 Pac. 1011 [1918] ). Although the Kansas Supreme Court once referred to the purchaser in such a contract as the “tenant-vendee,” it did so solely “for convenience.” Stevens v. McDowell, 151 Kan. 316, 319, 98 P.2d 410 (1940). Moreover, the court in that case referred to the seller as the “owner-vendor,” which is notably distinct from “landlord-vendor.” The court reiterated this point in State v. Sassman, 156 Kan. 680, 681, 135 P.2d 882 (1943), by observing that “the status of landlord and tenant does not define the relationship” of the parties in the installment land sales contract at issue.
The purchaser's status as a nontenant, equitable owner necessarily arises as a result of the different consequences to which the purchaser under an installment land contract is exposed as compared to the tenant. The Illinois Supreme Court acknowledged this difference in noting that the contract purchaser is “faced not only with the loss of possession, but, unlike a tenant ..., is likewise faced with the loss of the equity accumulated by payments made on the contract.” Rosewood Corp. v. Fisher, 46 Ill.2d 249, 257, 263 N.E.2d 833 (1970). To that end, at least one court in Kansas has held that a purchaser's status as an equitable owner means the seller in an installment land contract is not liable for any torts occurring on the conveyed property. Claypool, 26 Kan.App.2d at 97. And another court in Kansas has held that a mechanic's lien can attach to an equitable estate or interest in land. Lumber Co. v. Arnold, 88 Kan. 465, 468, 129 P. 178 (1913). In Arnold, our Supreme Court held that in an installment sales contract for land, the buyer is precluded from denying ownership of the property to avoid mechanic's liens of suppliers hired to build on the property, because “ ‘[i]t is generally held that a party in possession under a contract of purchase, and who is to be invested with full title upon compliance with certain conditions, is regarded as an owner under the mechanic's-lien laws.’ [Citation omitted.]” Arnold, 88 Kan. at 468.
Although acknowledging that the Turtles were living on the property as equitable owners pursuant to an installment land contract as opposed to a rental or lease agreement, the district court nevertheless concluded the Turtles were tenants as that term was used in K.S.A.2011 Supp. 12–808c(b). Noting that K.S.A.2011 Supp. 12–808c does not define the term “tenant,” the court relied on the following definition of tenant set forth in Black's Law Dictionary: “[o]ne who occupies another's land or premises in subordination to such other's title and with his assent, express or implied.” Black's Law Dictionary 1314 (5th ed.1979). Finding the Turtles' status as equitable owners of the property was subordinate to the Miniums' status as legal owners of the property until the final payment was made, the court held the Turtles qualified as tenants under the dictionary definition. As part of the analysis leading up to its decision to rely on the dictionary definition, the district court specifically rejected as too narrow the definition of tenant set forth in the Kansas Residential Landlord Tenant Act (KRLTA), which defines “tenant” as “a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” K.S.A. 58–2543(o). Under the KRLTA definition, the Turtles would not qualify as tenants because they were entitled to occupy the property pursuant to an installment land contract and not a rental agreement.
To justify its use of the dictionary definition as opposed to the KRLTA definition, the district court cited to the principle of statutory construction that words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. But we understand the natural and ordinary meaning of “tenant” to be consistent with the one set forth in the KRLTA. Our understanding in this regard is grounded not only in the way we believe the average person uses the word, but also in the language of K.S.A.2011 Supp. 12–808c(b), which refers both to a “tenant” and “landlord” in its provisions. This reference suggests that the legislature intended the natural and ordinary meaning of “tenant” to be placed in the context of a landlord-tenant relationship.
In the end, however, we not need decide whether the Turtles were tenants as that term was used in K.S.A.2011 Supp. 12–808c(b). This is because the exception in subsection (b) precludes a lien from attaching to the property for unpaid utility charges if, and only if, “the utility service has been contracted for by a tenant and not by the landlord or owner of the property to which such service is provided.” (Emphasis added.) K.S.A.2011 Supp. 12–808c(b). In this case, there is no dispute that the Tuttles occupied the property pursuant to an installment land contract. Although the Tuttles' interest in the property may well have been subordinate to the Miniums' interest until the final payment was made, there simply is no dispute under Kansas law that the Tuttles were equitable owners of the property at the time Robbie contracted for utility service to that property. See Claypool, 26 Kan.App.2d at 95–96. Because the Tuttles were equitable owners, the exception in subsection (b) does not apply to prevent a lien for unpaid utility fees or charges from attaching to the property.
2. Having found the exception in subsection (b) inapplicable, we find subsection (a) authorizes the collection of past due charges for utility services by refusing to provide utility service to the property until the outstanding charges are paid
The City argues K.S.A.2011 Supp. 12–808c(a) authorizes the collection of past due charges for utility services either by certifying the unpaid charges to the county clerk, to be placed on the tax roll for the property at issue or by refusing to provide utility service to the property at issue until the outstanding charges are paid. For the reasons stated below, we agree with the City's interpretation of the statute.
K.S.A.2011 Supp. 12–808c(a) consists of three sentences. The first sentence of this subsection provides that if a person fails to pay fees or charges that were billed for a utility service provided to the property upon which the person resides, “the unpaid fees or charges shall constitute a lien upon the property to which such utility service is provided.” (Emphasis added.) K.S.A.2011 Supp. 12–808c(a). The plain language within this sentence readily demonstrates that the legislature intended to establish a self-executing procedure for creating a lien, which then immediately attaches to the property where the unpaid utility services were provided. The second sentence of this subsection states that “unpaid fees or charges shall be certified by the governing body of the municipality to the county clerk ..., to be placed on the tax roll for collection.” K.S.A.2011 Supp. 12–808c(a). Although the City has not yet certified the lien in this case, the statute authorizes the City to do so, which necessarily means that the City thereafter may take steps to force a sale of the property in order to compel payment. The last sentence of K.S.A.2011 Supp. 12–808c(a) provides that the city “may refuse the delivery of such utility service as otherwise permitted by law until such time as such charges are fully paid.” On its face, this language appears to unconditionally authorize a utility company to withhold service to property indefinitely until the charges are paid, even if that means a subsequent owner is denied service.
Construing the three sentences together, we conclude the legislature intended to provide two distinct procedures for a municipality to enforce a lien attached to property as a result of unpaid utility charges. On the one hand, the City may certify the unpaid charges and place those unpaid charges on the tax roll for collection. If the unpaid charges remain unpaid, the City may take steps to force a sale of the property in order to compel payment. On the other hand, the City may refuse utility service to the property as a mechanism to compel payment of past due charges. The twin remedies provided in K.S.A.2011 Supp. 12–808c(a) are cumulative; a municipality may obtain a tax lien, stop service consistent with the statutory requirements, or do both.
That the legislature intended to provide these procedures, either separately or in conjunction with each other, is consistent with what we believe to be the purpose of the legislation in the first place: to provide municipalities a mechanism to compel payment of past due charges for utilities that already have been provided to a given property. And permitting the City to refuse utility service to the property in order to compel payment of past due charges and/or to certify the lien and force a sale of the property is legally sound. The lien is against the property and, although it does not create any personal liability, its practical effect is to compel the current owner to pay the charges secured by the lien in order to prevent foreclosure of the lien against the current owner's property.
In holding that certification for purposes of placing the unpaid charges on the tax roll and refusing utility service to the property are both legally sound procedures for enforcing an existing lien attached to the property under K.S.A.2011 Supp. 12–808c(a), we have reviewed the annotation on this subject found at Annot., 19 A.L.R.3d 1227 and have read many of the cases cited therein. Although the outcome of each case was highly dependent on the existence of, and the language in, the state statute governing the issue and the particular facts presented, we discovered many of them had a common theme that support the outcome we reach today. Specifically, the right of a municipality to compel a property owner to pay for water furnished to a former owner in most of these cases seemed to depend on the existence of a statutory lien against the property. In the absence of a statutory lien, the current owners of property generally were absolved from liability for charges incurred by the former owners of that property. Where the municipality is provided with a statutory lien to secure unpaid charges, however, most courts found that lien to be available as a means of recovery against the property, either by enforcing the lien against the property itself or by enforcing the lien against the current owner as a condition of service to the property. Annot., 19 A.L.R.3d 1227.
Based on the discussion above, we construe K.S.A.2011 Supp. 12–808c(a) to authorize the collection of past due charges for utility services either by certifying the unpaid charges to the county clerk to be placed on the tax roll for the property at issue or by refusing to provide utility service to the property at issue until the outstanding charges are paid. We find the twin remedies provided in K.S.A.2011 Supp. 12–808c(a) are cumulative; a municipality may obtain a tax lien, stop service consistent with the statutory requirements, or do both. C. The City's request for costs and fees
The City argues the district court erred in denying its request for costs and attorney fees based on a finding that the City did not prevail on summary judgment. Because the district court held the Miniums did not have standing, the City contends it prevailed on that issue and thus should be awarded costs. In addition, the City claims it is entitled to attorney fees because it incurred expenses in addressing the claims of the Miniums, who the district court allowed to remain as plaintiffs through discovery to summary judgment even though the City contested their standing early in the case.
K.S.A.2011 Supp. 60–2002 states that “ ‘[u]nless otherwise provided by statute, or by order of the judge, the costs shall be allowed to the party in whose favor judgment is rendered.’ “ Under K.S.A.2011 Supp. 60–2003, the applicable costs in this case include the docket fee and sheriff's expenses incurred in service of process. Because the district court rendered judgment in favor of both parties by granting and denying portions of each motion for summary judgment, the district court had statutory authority to award costs in favor of each party. Our Supreme Court has held, however, that regardless of who prevails, the “award of costs in a civil action is discretionary with the trial court,” because the mandatory verb “shall” in K.S.A.2011 Supp. 60–2002(a) is modified by the phrase “ ‘unless otherwise provided by ... order of the judge.’ “ Wendt v. University of Kansas Med. Center, 274 Kan. 966, 982, 59 P.3d 325 (2002). Thus, we review atrial court's decision regarding an award of costs for an abuse of discretion. Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e ., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v.. McCullough, 293 Kan. 970, 980–81, 270 P.3d 1142 (2012).
Given the judgment it rendered, the district court's decision to deny the City's request for costs does not appear to have been an abuse of discretion. Nevertheless, the district court might exercise its discretion differently in light of our decision today. Therefore, we vacate the district court's decision to deny the City's request for costs and remand the issue for reconsideration in light of our disposition of the issues presented on appeal.
The City makes a similar argument as to its claim for attorney fees under K.S.A.2011 Supp. 60–211(c), which allows a court to impose sanctions, including paying the other party's expenses and attorney fees, for misrepresentations to the court. “The issue of the district court's authority to award attorney fees is a question of law over which appellate review is unlimited.” Unruh v. Purina Mills, 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). “A court may not award attorney fees absent statutory authority or an agreement by the parties. Without such authority, a trial court's equitable powers do not extend to the awarding of attorney fees.” 289 Kan. at 1200; see Hodges v. Johnson, 288 Kan. 56, 69–70, 199 P.3d 1251 (2009); Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 495, 173 P.3d 642 (2007). Where the trial court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard. Unruh, 289 Kan. at 1200.
Because it found the City did not prevail, the district court held the City's request for attorney fees was improper under K.S.A.2011 Supp. 60–211(c). But K.S.A.2011 Supp. 60–211(c) does not require that a party prevail in order to receive expenses imposed as sanctions against the other party. Accordingly, the district court had the authority under K.S.A.2011 Supp. 60–211(c) to impose sanctions if it found them to be appropriate, and the court erred in failing to consider the City's request for fees as a sanction for misrepresentations to the court under that statute.
III. Conclusion
Because the Turtles were equitable owners of the property at the time Robbie contracted for the utility services, subsection (b) of the statute did not prevent a lien from automatically attaching to the property under K.S.A.2011 Supp. 12–808c(a). As a result of this lien, the City was permitted to pursue collection of past due charges for utility services either by certifying the unpaid charges to the county clerk, to be placed on the tax roll for the property at issue or by refusing to provide utility service to the property at issue until the outstanding charges are paid. As such, the district court erred by granting summary judgment in favor of McDonald, by enjoining the City from refusing to provide utility service to the property currently owned by McDonald, and by enjoining the City from certifying the unpaid utility charges to the county clerk. Although it appears the district court did not abuse its discretion in awarding costs solely to McDonald, the district court might exercise its discretion differently in light of our decision today; thus, we remand this issue for reconsideration. Finally, the district court erred in failing to address the merits of the City's claim for attorney fees under K.S.A.2011 Supp. 60–211(c).
Reversed and remanded with directions (1) to vacate the injunction preventing the City from pursuing collection of past due charges for utility services either by certifying the unpaid charges to the county clerk to be placed on the tax roll for the property at issue or by refusing to provide utility service to the property at issue until the outstanding charges are paid; (2) to reconsider the City's request for costs in light of our decision today; and (3) to consider the merits of the City's claim for attorney fees under K.S.A.2011 Supp. 60–211(c).