Opinion
No. 111,370.
2015-02-6
Duane MOEDER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Dickinson District Court; David R. Platt, judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Dickinson District Court; David R. Platt, judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Duane Moeder appeals the district court's dismissal, without prejudice, of his petition for review of his driver's license suspension by the Kansas Department of Revenue (KDR). This case is presented to our court with a sparse record. Finding no abuse of discretion, we affirm the district court's judgment.
The underlying circumstances of Moeder's driver's license suspension are largely immaterial. On December 1, 2012, he was stopped for driving under the influence, and a blood test showed him to have an alcohol level over the legal limit. As a result, the KDR suspended Moeder's driving privileges. Through his lawyer, Moeder requested and received an administrative hearing. The hearing officer upheld the suspension. On July 25, 2013, Moeder filed a petition for review in the district court.
On January 8, 2014, a notice of hearing was filed indicating that the case was set for a status conference via telephone on January 24, 2014, at 10 a.m. The notice indicated that the case would be presented to the court at that hearing based upon a stipulation of facts. The next document in the record is an order of dismissal without prejudice filed on February 14, 2014, noting that there were no appearances and no stipulation presented to the court at the January 24, 2014, hearing. Moeder timely filed a notice of appeal.
There has been a substantial amount of procedural activity in the case following the appeal. Moeder filed his initial brief with this court, but on July 21, 2014, this court issued a letter to Moeder instructing him to correct his brief. In that letter, the chief deputy clerk of the appellate court informed Moeder that his brief contained insufficient citation to the record to satisfy the requirements of Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 40). The letter further advised Moeder: “If the district court record is limited, counsel should utilize Supreme Court Rule 3 .05 and work with opposing counsel and the district court judge to create an agreed statement.”
In a status report filed on August 6, 2014, Moeder informed this court that counsel had drafted an “Appeal on Agreed Statement Pursuant to Kansas Supreme Court Rule 3.05,” which was included as an attachment. It stated in relevant part:
“On January 24, 2014, at 9:55 a.m. plaintiff's counsel called every number possible for the Dickinson County District Court and left messages not only for the judge's assistant, but also for the Clerk of the District Court. Plaintiff's counsel called in at least four (4) times and left at least two (2) messages. After being unsuccessful in reaching the judge plaintiff's counsel contacted Don Cooper, counsel for the Kansas Department of Revenue, and explained the situation. Mr. Cooper did not have any additional numbers for the judge and both counsel agreed to wait for the response to the telephone messages which had been left earlier.
“Approximately 40 minutes later an assistant from the judge's office contacted plaintiffs counsel and informed him that because nobody had called in to the judge the judge had simply dismissed the case.... Plaintiff's counsel was informed that he had needed to call a specific number (although the number was not listed in the pleadings nor on the notice of hearing) and she would explain the circumstances to the judge.... Both counsel agreed that they would simply await the Court's decision and hope that the Court would simply reschedule the mater [ sic ] for status.”
On August 12, 2014, Moeder filed a second status report informing this court that the district judge had refused to sign the agreed statement of facts. Attached to the status report was a letter from the district judge addressed to both parties. In the letter, the judge explained that he was unable to approve the parties' agreed statement of facts because “[i]t contains statements that the Court has no knowledge of or evidence to support.”
On August 13, 2014, this court issued an order remanding Moeder's case to the district court with instructions that the judge either sign the agreed statement of facts—together with any additions that the district court considered necessary for a full presentation of the issues on appeal—or the judge must make a record documenting why he declined to sign the agreed statement of facts. This court instructed Moeder to file either the agreed statement of facts signed by the judge or the record documenting why the judge declined to sign the agreed statement of facts.
On August 22, 2014, the district court conducted a “remand hearing” on the record regarding the agreed statement of facts submitted by the parties. The district court asked counsel whether they wished to make a statement or present evidence at the hearing. Moeder's counsel indicated that he had submitted an agreed statement of facts pursuant to Supreme Court Rule 3.05 and was seeking the district court's approval. The KDR's counsel declined to make any statement or present any evidence at the hearing.
The district court acknowledged that it had received the parties' statement of agreed facts and reviewed it, along with the court's own file and notes. The district judge referenced his letter to the parties stating that he was unable to approve the statement. The judge then stated his recollection of the events in question:
“[I]n checking with the clerks and the secretaries there, I believe, the secretary got a call from Mr. Holland's office at 3:27 that afternoon, and presumably was informed that the Court had—of January 24th, excuse me. That the case had been dismissed.”
“I think she normally would generate that dismissal order at that time, and that's the one that I asked her to hold until February. And in checking further with the secretary and clerks, there was something in there about a number that you weren't familiar with, as I recall. And I understand that, but when the procedure here is, when an attorney schedules something and gets permission to appear by phone, the secretary or clerk will routinely set those hearings, oh, 10 minutes apart or so, depending on the circumstances. And gives you an actual extension into the courtroom, and that probably would have been the number that you didn't find published or whatever.
“But in checking with the clerk's office, they—if they get a call, either buzz into the courtroom, or if not—or if the phone is on Do Not Disturb, because of court or something, and not expecting calls, then they will actually get up, come down, and come into the courtroom and let us know.
“All I can say is, we did not get a call here in the courtroom on the morning of January 24th, and no clerk came in to advise us that there was anyone on the phone.
“So, that's why I said I have no knowledge of or evidence to support your agreed statement.”
On August 28, 2014, Moeder filed another status report notifying this court that a hearing had taken place in district court. On September 3, 2014, this court ordered Moeder to provide a copy of the district court's findings on remand. Moeder responded that the district court made no findings other than those memorialized in the transcript of the August 22, 2014, hearing. This court ordered that the transcript of the August 22, 2014, hearing be added to the record on appeal. Thereafter, both parties filed a brief with this court attempting to address the merits of the appeal.
Moeder's sole argument on appeal is that the district court abused its discretion in dismissing his case for lack of prosecution. He contends that the district court gave no warning of any potential dismissal, made no findings of culpability on his behalf, and afforded him no opportunity to explain his failure to appear at the scheduled hearing. The KDR disputes these claims, arguing that the district court properly dismissed Moeder's petition after providing proper notice pursuant to K.S.A.2014 Supp. 60–241.
The district court's decision to dismiss a petition for lack of prosecution is reviewed under an abuse of discretion standard. Fischer v. Roberge, 34 Kan.App.2d 312, 314, 120 P.3d 796 (2005). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. 296 Kan. at 935.
As a preliminary matter, the parties disagree as to the effect of the agreed statement of facts presented to the district court upon remand. Moeder has copied the statement in its entirety and included it in the statement of facts in his brief. Throughout Moeder's brief, he relies on the information included in the agreed statement.
The State argues that the parties' agreed statement of facts does not satisfy the requirements of Supreme Court Rule 3.05 and thus cannot be properly considered a part of the record on appeal. Supreme Court Rule 3.05 (2014 Kan. Ct. R. Annot. 26) states:
“In place of the record on appeal as defined in Rule 3.01, the parties may prepare, sign, and submit to the district court not later than 21 days after filing the notice of appeal a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts asserted and proven or sought to be proven that are essential to the appellate court's resolution of the issues. The statement must include a copy of the judgment appealed from, a copy of the notice of appeal with its filing date, and a concise statement of the issues raised. If the statement is truthful, it—together with any additions that the district court may consider necessary to a full presentation of the issues on appeal—must be approved by the district court. The statement then must be filed with the clerk of the district court and constitutes the record on appeal in lieu of the record specified in Rule 3.02.”
The State points out that the notice of appeal in this case was filed on February 27, 2014. Moeder notified this court of the parties' submission of the agreed statement of facts to the district court on August 6, 2014—more than 5 months later. The State contends that because the statement was submitted well outside the 21 days provided in Supreme Court Rule 3.05, it cannot be relied upon to constitute the record on appeal.
We reject the State's argument that the agreed statement of facts cannot be considered as part of the record because it was prepared in an untimely manner. However, the State also argues that the parties' agreed statement of facts fails to comply with Supreme Court Rule 3.05 for a more fundamental reason: the district court never approved it. Moeder acknowledges that the statement of facts fails to comply with Supreme Court Rule 3.05 for this reason. Because the agreed statement of facts was not approved by the district court as required by the rule, it cannot be relied upon to constitute part of the record on appeal.
Turning to the merits of the case, the parties agree that the district court dismissed Moeder's case for lack of prosecution. As previously stated, the district court's decision to dismiss a petition for lack of prosecution is reviewed under an abuse of discretion standard. Fischer, 34 Kan.App.2d at 314. In examining whether the district court abused its discretion, the appellate court should consider (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant. 34 Kan.App.2d 312, Syl. ¶ 5.
Regarding the first factor, Moeder argues that the KDR did not suffer any prejudice as a result of his failure to appear at the telephone hearing. However, this court previously has found that “[t]he primary responsibility for prosecuting a case lies with the plaintiff. When a case has not been prosecuted in a diligent manner, prejudice is generally presumed.” 34 Kan.App.2d 312, Syl. ¶ 6. Furthermore, the KDR has asserted actual prejudice in this case. The KDR argues should this court overturn the district court's dismissal, it would have to incur the time and expense of further legal proceedings.
In addressing the second factor, Moeder contends that he in no way attempted to interfere with the judicial process. He points to his asserted numerous telephone calls to the district court on January 24, 2014, and multiple messages left for staff members explaining the circumstances. We must point out, however, that the record on appeal does not support Moeder's claims. In any event, Moeder has misinterpreted the focus of the second factor. In examining the amount of interference with the judicial process, this court must examine the burden that a case has imposed upon the judicial system. Namelo v. Broyles, 33 Kan.App.2d 349, 356–57, 103 P.3d 486 (2004), rev. denied 279 Kan. 1007 (2008). The district court is in the best position to assess the impact of retaining Moeder's petition on the judicial process. See West v. Kansas Dept. of Revenue, No. 109,361, 2014 WL 802111, at *5 (Kan.App.2014) (unpublished opinion). As this court noted in West, the problem here was the failure of Moeder's counsel to move forward with the case in a timely fashion. Allowing the case to go forward would reward that failure. 2014 WL 802111, at *5.
Regarding the third factor, Moeder argues that he should be assigned little, if any, culpability for the delay in these proceedings. Once again relying on the parties' agreed statement of facts submitted to the district court, Moeder claims that he attempted to call in for the telephone hearing numerous times. He contends that the correct telephone number was not listed in the notice of hearing or in the district court's directory. But even if Moeder's claims were supported by the record on appeal, he does not explain why he did not file a motion in district court to reschedule the telephone hearing. Likewise, after the district court issued its order of dismissal, Moeder could have filed a motion in district court to reconsider the dismissal which was entered without prejudice.
While Moeder denies any culpability in creating the circumstances that led to the dismissal of his case, he fails to explain his lack of action in district court following the scheduled telephone hearing. Moeder never submitted to the district court a written statement or justification for not appearing at the hearing. While Moeder has gone to great lengths since filing his notice of appeal to create an agreed statement of facts, he made no effort to formally explain his dilemma to the district court immediately after the scheduled telephone hearing. Approximately 3 weeks passed without Moeder submitting a written excuse, pleading, letter, or any written communication to the district court. After receiving no communication from Moeder concerning his failure to appear, the district court filed an order of dismissal without prejudice.
The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. Northern Natural Gas Co., 296 Kan. at 935. In light of Moeder's failure to appear at the scheduled January 24, 2014, hearing and his subsequent failure to explain his absence to the district court, a reasonable person would agree with the district court's decision to dismiss the case for lack of prosecution. Based on the record on appeal, or lack thereof, Moeder has failed to meet his burden of establishing that the district court abused its discretion in dismissing his case without prejudice.
Affirmed.