Opinion
112,023.
05-15-2015
M. Demaris RAWLINS–ROA, Appellant, v. CITY HALL LOFTS, L.P., EPV City Hall COGP, LLC, and EPCO, LLC, a/k/a f/k/a The Eagle Point Companies, LLC, Appellees.
Gregory V. Blume, of Overland Park, for appellant. Meagan L. Patterson and Kelly M. Cochran, of Waldeck & Patterson, P.A., of Prairie Village, for appellees.
Gregory V. Blume, of Overland Park, for appellant.
Meagan L. Patterson and Kelly M. Cochran, of Waldeck & Patterson, P.A., of Prairie Village, for appellees.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
City Hall Lofts, L.P. (City Hall), filed a limited action unlawful detainer petition to evict tenant M. Damaris Rawlins–Roa from her apartment. She filed a counterclaim, alleging unlawful retaliation under the Fair Housing Act. The trial court dismissed the eviction claim, explaining in a journal entry that the parties had settled the claim and that Rawlins–Roa had agreed to move out of her apartment. Rawlins–Roa later challenged the journal entry—arguing that it was void—but the trial court denied her relief.
On appeal, Rawlins–Roa makes several arguments challenging the same journal entry. Three of her arguments—that the journal entry did not provide notice that she was under threat of eviction, that the journal entry did not state that the court was entering a judgment for possession, and that the journal entry did not include her signature—fall under K.S.A.2014 Supp. 60–260(b)(4), which provides relief from void judgments. Those arguments fail because despite any irregularities in the journal entry, Rawlins–Roa received notice and an opportunity to be heard on the eviction issue. She was clearly aware of the eviction claim against her because she hired an attorney who filed an answer to contest City Hall's action. Her attorney also had the opportunity to advise the court about the settlement and her agreement to vacate the apartment. Finally, the trial court had jurisdiction over the subject matter (eviction action) and over the parties.
Rawlins–Roa's remaining arguments on appeal—that the journal entry failed to provide findings of fact and conclusions of law and that the trial court lacked proof of a settlement agreement between her and City Hall—fall under K.S.A.2014 Supp. 60–260(b)(6). This subsection provides relief from a final judgment for “any other reason that justifies relief.” Those arguments also fail because they were not raised within a reasonable time as required under K.S.A.2014 Supp. 60–260(c). Because all of Rawlins–Roa's challenges to the journal entry settling the eviction claim fail, we affirm the trial court's judgment.
In April 2011, City Hall sued Rawlins–Roa to evict her from her apartment following a notice to quit the premises. The following month, Rawlins–Roa filed a counterclaim, alleging unlawful retaliation under the Fair Housing Act. According to City Hall, the counterclaim made allegations beyond the scope of Chapter 61 of the code of civil procedure for limited actions, and the case was transferred to Chapter 60. See K.S.A. 61–2911(b). The trial court then bifurcated the eviction action from Rawlins–Roa's counterclaim. Our record on appeal is somewhat unclear about what happened with the eviction action at that point, but it does show that the eviction action was set for trial on August 2, 2011, and that on that date, the court was told by counsel that it had been settled. On August 4, 2011, the trial court filed a journal entry stating that the eviction action had been settled. On November 2, 2011, the trial court filed essentially the same journal entry. The text in the body of the new journal entry was identical to that in the August 4, 2011, journal entry, but the new journal entry had been signed later by a different judge. It stated that City Hall's eviction claim against Rawlins–Roa had been settled and that Rawlins–Roa had agreed to vacate the apartment:
“NOW on this 2nd day of August, 2011, [City Hall's] Petition is scheduled for trial, and [City Hall] and [Rawlins–Roa] have advised the Court that they have settled the issues in [City Hall's] Petition. Accordingly, the Court finds that a trial on [City Hall's] Petition is not necessary.
“[City Hall] and [Rawlins–Roa] advised the Court that [Rawlins–Roa] has agreed to vacate and return to [City Hall] possession of the premises at 805 N. 6th Street, Apartment 204, Kansas City, Wyandotte County, Kansas no later than November 2, 2011.
“Nothing herein shall affect the deadlines or other orders in this case, and [Rawlins–Roa] may proceed on her counterclaim.”
The parties' attorneys signed the journal entry, but Rawlins–Roa did not sign either journal entry.
Rawlins–Roa later agreed to voluntarily dismiss her counterclaim without prejudice. In a journal entry granting the voluntary dismissal, the trial court set out the following conditions for Rawlins–Roa to refile the action:
“1. All discovery conducted in this case ... in regards to the counterclaim will be valid in any re-filed action.
“2. [Rawlins–Roa] must answer [City Hall's] Opening Interrogatories, First Request for Admissions, and First Request for Production of Documents, and respond to the pending summary judgment motion, before re-filing the suit, and no further discovery will be allowed.
“3. [Rawlins–Roa] must submit an agreed to Pretrial Order at the time of re-filing this matter.”
Rawlins–Roa failed to vacate her apartment and was evicted by the sheriff on November 8, 2011.
In November 2013, Rawlins–Roa refiled her counterclaim—this time against City Hall, EPCO, and EPV City Hall—as a pro se petition. She claimed that her landlord had violated the Fair Housing Act. She alleged that her landlord had engaged in discriminatory housing practices and prevented her from completing the requirements necessary to live in her apartment—where she had resided for 6 years—in retaliation for a complaint she had filed with the Department of Housing and Urban Development.
The defendants moved to dismiss, arguing that the statute of limitations barred Rawlins–Roa's claims and that she had failed to comply with the trial court's conditions for refiling her claims. On April 16, 2014, the trial court conducted a hearing on the defendants' motion to dismiss. At the hearing, Rawlins–Roa orally argued through counsel that the trial court's journal entry filed November 2, 2011—which dismissed the eviction claim against her—was void because it did not say that the court was rendering a judgment for possession of the premises. The trial court determined that the November 2, 2011, journal entry was not void. The court determined that the journal entry was the same as a judgment for possession because it stated that Rawlins–Roa had agreed to vacate the premises no later than November 2, 2011. This was the same date referenced in the trial court's writ of restitution authorizing the sheriff to remove Rawlins–Roa from the apartment. The court also determined that the claims she raised in her petition were the same claims she had made in her earlier counterclaim. Moreover, the court determined that she had failed to meet the conditions for refiling those claims. Finally, the court determined that the statute of limitations had run on her discriminatory housing and retaliation claims. As a result, the trial court granted the defendants' motion to dismiss.
The Trial Court Properly Granted Defendants' Motion to Dismiss
On appeal, Rawlins–Roa argues that the November 2, 2011, journal entry stating that she and City Hall had settled the eviction claim was void. As stated previously, the court had filed the same journal entry—signed by a different judge—in August 2011. Since Rawlins–Roa's arguments on appeal are based on the November 2, 2011, journal entry, we will focus our discussion on that journal entry. Rawlins–Roa contends that the journal entry did not state that the court was entering a judgment for possession, that it did not provide notice that she was under threat of eviction, that it did not include her signature, and that it did not provide findings of fact or conclusions of law. She also claims that “[t]here never was [a settlement] agreement” between her and City Hall. Because Rawlins–Roa does not address her discriminatory housing and retaliation claims in her appeal brief, we consider those issues waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
As stated earlier, the November 2, 2011, journal entry dealt with the eviction action and did not resolve the Fair Housing Act counterclaim. A legal action for eviction is covered by K.S.A. 61–3801 to 61–3808. K.S.A. 61–3808(a) provides for a writ of restitution “[i]f a judgment is entered against the defendant for possession of the subject premises....” The court issued a writ based upon that agreed journal entry because it included a provision that possession would be given to City Hall. Rawlins–Roa did not appeal the eviction judgment, so we need not determine whether her time for appeal began to run on November 2, 2011, or on the date she agreed to dismiss her discriminatory housing and retaliation claims in 2012.
Rawlins–Roa refiled her counterclaim as a pro se plaintiff in November 2013. The defendants then moved to dismiss the petition, and Rawlins–Roa obtained counsel who argued that the November 2, 2011, journal entry was void at a hearing on the motion to dismiss.
We construe Rawlins–Roa's counsel's arguments at the hearing as an oral motion for relief from a final judgment under K.S.A.2014 Supp. 60–260(b), which provides that a court may relieve a party from a final judgment based on the following:
“(1) Mistake, inadvertence, surprise or excusable neglect;
“(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under subsection (b) of K.S.A. 60–259, and amendments thereto;
“(3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or misconduct by an opposing party;
“(4) the judgment is void;
“(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
“(6) any other reason that justifies relief.”
Our Supreme Court has stated that a K.S.A. 60–260(b) motion is the proper vehicle to use to challenge a judgment based on a settlement agreement. Reimer v. Davis, 224 Kan. 225, 228, 580 P.2d 81 (1978) ; see also Miotk v. Rudy, 4 Kan.App.2d 296, 298–99, 605 P.2d 587 (1980). In addition, the fact that Rawlins–Roa might have directly appealed from the final judgment does not preclude her from filing a K.S.A. 60–260(b) motion attacking the judgment. See Miotk, 4 Kan.App.2d at 298. Unless a party is arguing that the judgment is void, it simply must make the motion within a reasonable time and for the reasons listed in paragraphs (1)-(3) of K.S.A.2014 Supp. 60–260(b) within a year of the entry of judgment. See K.S.A.2014 Supp. 60–260(c). A party may move for relief from a void judgment at any time. See Garcia Financial Group, Inc. v. Virginia Accelerators Corp., 3 Fed. Appx. 86, 88 (4th Cir.2001) ; In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997) (“A void judgment is a ity and may be vacated at any time.”); State ex rel. Secretary of SRS v. Clubb, 30 Kan.App.2d 1, 3, 39 P.3d 80 (2001).
Rawlins–Roa argues that the November 2, 2011, journal entry was void, so her claims would presumably fall under subsection (4) of K.S.A.2014 Supp. 60–260(b). A judgment is void only if the court that rendered it lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process. Crist v. Hunan Palace, Inc., 277 Kan. 706, 718, 89 P.3d 573 (2004) ; In re Marriage of Hampshire, 261 Kan. at 862. In this case, Rawlins–Roa does not argue that the trial court lacked jurisdiction. She has not challenged subject matter jurisdiction—the trial court's authority to hear her particular type of action. Moreover, trial courts have subject-matter jurisdiction over all civil matters unless otherwise provided by law. K.S.A. 20–301 ; Pieren–Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92–93, 106 P.3d 492 (2005). She also has not challenged the trial court's personal jurisdiction—its power over her person—by objecting to the service of process in her case. See Pieren–Abbott, 279 Kan. at 92–93. Thus, for Rawlins–Roa's claims to fall under subsection (4) of K.S.A.2014 Supp. 60–260(b), they must raise due process issues.
Several of Rawlins–Roa's arguments on appeal challenge the elements of due process—notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Crist, 277 Kan. at 718. Rawlins–Roa's arguments that the journal entry did not provide notice that she was under threat of eviction, that it did not state that the trial court was entering a judgment for possession, and that it did not include her signature can be characterized as due process challenges. But Rawlins–Roa's remaining arguments on appeal—that the journal entry failed to provide findings of fact or conclusions of law and that “there was never [a settlement] agreement” between her and City Hall—do not concern notice or an opportunity to be heard. They can only reasonably be construed as arguments under subsection (6) of K.S.A.2014 Supp. 60–260(b) —the catchall provision for “any other reason that justifies relief” or under subsection (1) of K.S.A.2014 Supp. 60–260(b). Thus, we will consider Rawlins–Roa's other arguments on appeal under subsections (1), (4), and (6) of K.S.A.2014 Supp. 60–260(b).
Relief from a Void Judgment
When a trial court has decided whether a final judgment is void, this court reviews the final judgment independently—without any required deference to the trial court's conclusion—because the trial court has no discretion to exercise when deciding if a judgment is void. The judgment is either valid or void. In re Adoption of A.A.T., 287 Kan. 590, Syl. ¶ 1, 196 P.3d 1180 (2008), cert. denied 556 U.S. 1184 (2009) ; J.A. Tobin Construction Co. v. Williams, 46 Kan.App.2d 593, 597, 263 P.3d 835 (2011). This court may only review the order of denial itself—not the underlying judgment. Neagle v. Brooks, 203 Kan. 323, 326, 454 P.2d 544 (1969) ; Ellis v. Whittaker, 10 Kan.App.2d 676, 677, 709 P.2d 991 (1985) ; Miotk, 4 Kan.App.2d at 298. In doing so, it can consider federal caselaw because the language of K.S.A.2014 Supp. 60–260(b) is identical to Rule 60(b) of the Federal Rules of Civil Procedure. See In re Adoption of A.A.T., 287 Kan. at 628 ; Neagle, 203 Kan. at 327.
Rawlins–Roa contends that the November 2, 2011, journal entry is void because it did not provide notice that she was under threat of eviction, that it did not state that the trial court was entering a judgment for possession, and that it did not include her signature. Regarding notice, the journal entry was signed by Rawlins–Roa's attorney and clearly stated that Rawlins–Roa would surrender possession of the apartment to City Hall. Although the journal entry did not specifically state that the trial court was entering a judgment for possession, it did state that City Hall would obtain possession. Furthermore, even if Rawlins–Roa did not see the journal entry before she was evicted because she did not sign it, she had notice that she was under threat of eviction. She had hired an attorney and filed an answer to contest the eviction claim. She had also stated in her answer and counterclaim that she had received a “Notice to Quit the Premises” from City Hall in April 2011.
Rawlins–Roa also had an opportunity to be heard on the eviction claim. Her attorney filed an answer and had the opportunity to advise the court of the settlement and Rawlins–Roa's agreement to vacate the apartment. Because Rawlins–Roa had both notice and an opportunity to be heard on the eviction claim, this court determines that her arguments that the journal entry was void under K.S.A.2014 Supp. 60–260(b)(4) fail.
Relief from a Final Judgment for “Any Other Reason that Justifies Relief”
We now consider Rawlins–Roa's remaining arguments that fall under subsections (1) or (6) of K.S.A.2014 Supp. 60–260(b) —that the November 2, 2011, journal entry failed to provide findings of fact or conclusions of law and that “there was never [a settlement] agreement” between her and City Hall.
Unlike arguments that a final judgment is void, arguments may be made within a reasonable time under K.S.A.2014 Supp. 60–260(b) or may be made no more than 1 year after entry of the judgment under paragraphs (1), (2), and (3) of K.S.A.2014 Supp. 60–260(b). K.S.A.2014 Supp. 60–260(c). This court will now determine whether Rawlins–Roa brought her claim for relief on these issues “within a reasonable time.” Whether she did so is a question within the trial court's discretion. This court will only reverse if no reasonable person would have taken the view adopted by the trial court or if the trial court's decision was based on an error of fact or law. 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 (2013) ; In re Marriage of Larson, 257 Kan. 456, Syl. ¶ 3, 894 P.2d 809 (1995).
Here the trial court did not specifically consider whether Rawlins–Roa brought her claim within a reasonable time because she did not describe her arguments as a request for relief from a final judgment under K.S.A. 60–260(b). But our Supreme Court has previously made its own decision about the timeliness of a party's requested relief from a final judgment based on the record when the trial court has failed to consider the reasonable time requirement. See In re Marriage of Leedy, 279 Kan. at 324 (finding that the K.S.A. 60–260 [b] motion was raised within a reasonable time).
When considering whether Rawlins–Roa's request was made within a reasonable time, this court must look at the facts of the case—including when Rawlins–Roa learned about the facts justifying relief and when she sought relief. See In re Marriage of Leedy, 279 Kan. at 324 ; In re Estate of McLeish, 49 Kan.App.2d 246, 260, 307 P.3d 221 (2013), rev. denied April 28, 2014; Wilson v.. Wilson, 16 Kan.App.2d 651, 659, 827 P.2d 788, rev. denied 250 Kan. 808 (1992). It can consider “whether parties have been prejudiced by the delay and whether good cause has been shown for failing to take action sooner.” In re Marriage of Leedy, 279 Kan. at 324 ; Brand Investments, LLC v. Adams, No. 108,341, 2013 WL 3792092, at *10 (Kan.App.2013) (unpublished opinion).
In this case, the record on appeal suggests that the motion was not made in a reasonable time. Prejudice from delay is not readily apparent. Rawlins–Roa waited a substantial amount of time to seek relief. The latest date that she would have learned about the eviction journal entry was on November 8, 2011, when the sheriff evicted her from her apartment. The writ of restitution authorizing the eviction said, “on the 2nd day of Nov[ember], 2011, in an action pending in [the trial court], Plaintiff City Hall Lofts, L.P. recovered judgment against [Rawlins–Roa] for restitution of ... 805 N. 6th Street, Apartment 204, Kansas City, Wyandotte County, Kansas.” Rawlins–Roa waited more than 2 years (29 months) from the date of her eviction (November 8, 2011) before arguing in her oral motion on April 16, 2014, that the November 2, 2011, journal entry was void.
On appeal, Rawlins–Roa has not offered an explanation for her delay in seeking relief. She has chosen not to file a reply brief addressing the defendants' contentions that her claims fall under K.S.A.2014 Supp. 60–260(b)(6) and that they were not raised in a reasonable time.
When Rawlins–Roa argued to the trial court that the journal entry was void, she referenced her former attorney (who represented her during the eviction claim), saying that he failed to withdraw from the case for 2 years. In her brief, under the Statement of the Case, Rawlins–Roa states that “on August 2, 2011, without her knowledge or consent, her attorney agreed that she would vacate the premises by November 2, 2011.... Rawlins–Roa's attorney failed to advise her of the agreement or provide her with a copy of the Journal Entry, and on or about November 8, 2011, Rawlins–Roa was forcibly evicted by the Wyandotte County Sheriff's Department.” (Emphasis added.)
If Rawlins–Roa is now contending that her former attorney caused the delay in challenging the November 2, 2011, journal entry, her argument would be more suitable under K.S.A.2014 Supp. 60–260(b)(1) than K.S.A.2014 Supp. 60–260(b)(6). For example, surprise or excusable neglect is often used as ground by defendants when contending that they were delayed in seeking relief from a judgment. The surprise or excusable neglect ground is located under K.S.A.2014 Supp. 60–260(b)(1). As stated earlier, the time limitation applicable to this subsection is 1 year after the entry of the judgment. Thus, Rawlin–Roa's contention would clearly be time barred under K.S.A. 60–260(b)(1).
For the sake of argument, even if Rawlins–Roa's statements about her attorney could possibly be construed as a reason for the delay, she would have been placed on notice about the alleged improper actions of her attorney by November 8, 2011, when she was forcibly evicted from her apartment. Again her action would have been time barred under K.S.A. 60–260(b)(1).
Rawlins–Roa's case is similar to others where Kansas appellate courts have upheld a trial court's conclusion that a delay in requesting relief under K.S.A. 60–260(b) was unreasonable. See Neagle, 203 Kan. at 329–30 (stating that a delay of more than 2 years was unreasonable where the party seeking relief had shown only procedural irregularities that had not prejudiced her cause); In re Estate of McLeish, 49 Kan.App.2d at 260–61 (stating that a delay of 20 months was unreasonable in part because the parties seeking relief did not allege any facts that would demonstrate a good reason for the delay); Brand Investments, 2013 WL 3792092, at *11 (finding that a delay of more than 2 years was unreasonable in part because the party seeking relief never offered an explanation for the delay); Robinson v. Spencer, No. 96,866, 2007 WL 4158166, at *5–6 (Kan.App.2007) (holding that a delay of 1 year was unreasonable where the party moving for relief failed to give any justifiable reason for the delay). Because Rawlins–Roa has failed to offer an explanation for her 29–month delay in seeking relief from the November 2, 2011, journal entry, this court determines that her claims under subsection (6) of K.S.A.2014 Supp. 60–260(b) were not raised within a reasonable time.
Rawlins–Roa also argues that K.S.A.2014 Supp. 60–252 required the trial court to provide findings of fact and conclusions of law in the journal entry. But that statute applies to trial court decisions on actions tried on the facts without a jury, summary-judgment motions, interlocutory-injunctions motions, and partial findings. The statute does not mention journal entries based on settlement agreements:
“(a) Findings and conclusions. (1) In general. In an action tried on the facts without a jury or with an advisory jury or upon entering 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. Judgment must be entered under K.S.A. 60–258, and amendments thereto.
“(2) For an interlocutory injunction. In granting or refusing an interlocutory injunction, except in divorce cases, the court must similarly state the findings and conclusions that support its action.
....
“(c) Judgment on partial findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by subsection (a).” (Emphasis added.) K.S.A.2014 Supp. 60–252.
Thus, K.S.A.2014 Supp. 60–252 did not require the trial court to provide findings of fact and conclusions of law in Rawlins–Roa's case, and the lack of findings and conclusions of law in the November 2, 2011, journal entry does not entitle her to relief from the final judgment.
Rawlins–Roa's other argument under K.S.A.2014 Supp. 60–260(b)(6) is that “there was never an agreement” between her and City Hall. Rawlins–Roa seems to contend that her attorney settled the eviction claim without her authority, but she is raising a new issue on appeal. Before the trial court, Rawlins–Roa argued that that she did not sign the journal entry and was not present when her attorney advised the court that the parties had settled the eviction claim, not that her attorney was acting without her authority. Issues not raised below generally cannot be raised for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). While there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, Rawlins–Roa has not explained why this court should consider her argument for the first time on appeal as required under Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot 39). State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) ; In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 778 (2009). As a result, we consider the argument waived and abandoned. Williams, 298 Kan. at 1085.
Because all of Rawlins–Roa's challenges to the journal entry settling the eviction claim fail and because she has waived her discriminatory housing and retaliation claims, we affirm the trial court's judgment.
Affirmed.