Opinion
No. 111,107.
2014-10-31
ROCK CHALK HILLS, LLC, Appellant, v. Cierra M. SWEENEY and Brianna L. Fant–Wright and All Other Persons Known or Unknown Residing on the Premises, Appellees.
Appeal from Douglas District Court; Michael J. Malone, Judge.Lauren L. Mann, of Pendleton & Sutton, LLC, of Lawrence, for appellant.No appearances by appellees.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Lauren L. Mann, of Pendleton & Sutton, LLC, of Lawrence, for appellant. No appearances by appellees.
Before Hill, P.J., Stegall, J., and Johnson, S.J.
MEMORANDUM OPINION
PER CURIAM:
The district court, on its own motion over the written objection of Rock Chalk Hills, LLC, continued the eviction trial in this case from December 26, 2013, to January 2, 2014 (21 days from the appearance date). K.S.A.2013 Supp. 61–3807(a) provides that an eviction trial “shall” be conducted within 14 days of the appearance date. The district court ruled that the statute was directory rather than mandatory. Rock Chalk Hills appeals from that ruling. Because we lack jurisdiction we dismiss the appeal.
Facts
Rock Chalk Hills filed an eviction petition in the Douglas County District Court on November 27, 2013. It prayed for possession of the premises it had leased to Cierra Sweeney and Brianna Fant–Wright, based on their failure to pay their rent. On the appearance date, December 12, 2013, Sweeney appeared in person and entered a general denial to the petition. Fant–Wright did not appear. The clerk set the case on the eviction trial docket for December 26, 2013.
The next day, December 13, 2013, Judge Michael J. Malone's administrative assistant sent Rock Chalk Hills' counsel an email advising that the judge would not be available on December 26, 2013, and that the trial had been rescheduled for January 2, 2014. On December 17, 2013, Rock Chalk Hills filed an objection to the continuance. It argued that “K.S.A. 61–3807(a) is a mandatory provision and therefore does not grant the trial court the discretion to schedule eviction trials beyond 14 days of the appearance date stated in the summons.” The objection requested that if Judge Malone, the judge who handled the eviction dockets, was unavailable, the matter be transferred to another division for a timely trial.
The statute at issue, K.S.A.2013 Supp. 61–3807(a), provides: “If a trial is necessary, the trial shall be conducted within 14 days after the appearance date stated in the summons.”
On December 24, 2013, the district judge's administrative assistant sent an email to counsel for Rock Chalk Hills indicating that the judge had denied its objection. On December 27, 2013, Rock Chalk Hills filed its notice of appeal of that order. The district court conducted the eviction trial as rescheduled on January 2, 2014. It entered judgment in favor of Rock Chalk Hills and against Sweeney and Fant–Wright for immediate restitution and possession of the premises at 1012 Emery Road. A journal entry of judgment was filed on January 17, 2014. The district court, on that same date, filed a written order denying Rock Chalk Hills' objection to the continuance. Rock Chalk Hills has informed this court that it was restored to possession of the subject premises on January 21, 2014.
On January 27, 2014, this court issued a show cause order addressed to the parties. It stated:
“It does not appear that this decision is appealable. K.S.A. 61–3901 establishes the appealable orders in limited actions cases. It does not appear that this particular district court ruling falls within any of the enumerated provisions. In addition, the hearing was set to occur in district court on January 2, 2014. In the absence of any information to the contrary, this court assumes that the hearing was conducted as scheduled, rendering this appeal moot.”
On February 18, 2014, Rock Chalk Hills filed a response to this court's show cause order. The response stated that after issuance of the show cause order, Rock Chalk Hills supplemented its docketing statement to include all the district court documents necessary for jurisdiction pursuant to Rule 2.03(a) (2013 Kan. Ct. R. Annot. 11). Rock Chalk Hills argued:
“Plaintiff–Appellant clearly has grounds to appeal from the underlying case. The district court case was finalized on January 2, 2014 when the eviction trial occurred, after which the district court's decision regarding the eviction trial was docketed on January 17, 2014. Thus, a final judgment in the case has been entered as required by K.S.A. 61–3901(a).... Since the sole purpose for the underlying action was to recover possession of the rental property, the district court's Order Denying Plaintiffs Objection to Continuance of the Eviction Trial Date clearly qualifies as such ‘order, ruling or decision which determines the action at any stage of the proceedings' as required by K.S.A. 61–3901(b).” (Emphasis added.)
Rock Chalk Hills dedicated the rest of its response to its argument that the case should not be dismissed for mootness. On February 26, 2014, this court noted Rock Chalk Hills' response and retained this appeal.
Sweeney and Fant–Wright have not participated in these appellate proceedings. They did not respond to this court's show cause order, nor have they filed briefs.
Jurisdiction
As noted above, our motions panel issued a threshold Order to Show Cause which suggested we might have no jurisdiction over this appeal. That panel pointed out that, under the provisions of K.S.A. 61–3901, the decision challenged did not appear to be appealable. The panel also assumed that Rock Chalk had obtained its judgment on January 2, 2014, rendering this appeal moot. After Rock Chalk responded to the order the motions panel retained the appeal. That retention order allows this panel, which has been assigned to consider and decide this case, to determine issues regarding jurisdiction, mootness, and, if applicable, the merits.
Rock Chalk Hills' responses to the show cause order and, then, its brief have not assuaged our doubts about our jurisdiction. Rock Chalk Hills obtained its judgment for possession against the defendants, and it has been restored to possession of the leased premises. No controversy actually exists between the parties to the action. The only controversy is whether the district court had the authority to continue the eviction trial docket, including this case, from the day after Christmas to the day after New Year's Day.
An appellate court may exercise jurisdiction only when allowed to do so by statute. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609–10, 244 P.3d 642 (2010). Rock Chalk Hills has invoked our jurisdiction concerning the continuance issue. The defendants have not resisted our jurisdiction or otherwise participated in the appeal. Nevertheless, we have a duty to question jurisdiction on our own initiative. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). We exercise unlimited review over questions of jurisdiction. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
To determine whether we have jurisdiction over this challenge to the Chapter 61 continuance order we must interpret and apply K.S.A. 61–3901. It provides as follows:
“Any party to a civil action pursuant to the code of civil procedure for limited actions may appeal from:
(a) A final judgment, except a judgment rendered on confession;
(b) any order, ruling or decision which determines the action at any stage of the proceedings;
(c) any order, ruling or decision that sustains or overrules a motion to dissolve an attachment or to discharge a garnishment; or
(d) any order, ruling or decision that sustains or overrules a motion to vacate the levy under an execution on property claimed to be exempt under the laws of this state.”
We are clearly not dealing with attachments, garnishments, or executions, so we need not concern ourselves with (c) or (d). Likewise we are not dealing with (a): Rock Chalk Hills is not appealing from the final judgment in its favor. Therefore, in order for Rock Chalk Hills to have grounds for appeal from a Chapter 61 decision it must show that the circumstances here fall within (b). They clearly do not. When it granted a continuance of the trial past the holidays the district court simply entered a scheduling order. The Kansas Legislature has placed limitations on what Chapter 61 matters can be appealed. In Nolan v. Auto Transporters, 226 Kan. 176, 179–81, 597 P.2d 614 (1979), our Supreme Court discussed the limitations that existed under K.S.A. 61–2101, an identical predecessor to K.S.A. 61–3901. That court stated as follows:
“Furthermore, it should be noted that K.S.A. 61–2101 authorizes an appeal from ‘a final judgment’ or from ‘any order, ruling or decision which determines the action at any stage of the proceedings .’ We have held that a final order from which an appeal will lie is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637 (1964); Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164 (1965).” 226 Kan. at 181.
We find that the holding in Nolan is still good law, especially since the statute it was applying is identical to the statute at issue. The order continuing the trial did not determine the action. If the action had been determined there would have been no need for the subsequent trial. The district court determined the action on January 2, 2014, when the court granted Rock Chalk Hills its judgment. We conclude that the legislature did not authorize a Chapter 61 litigant to appeal a pretrial scheduling order that did nothing other than defer the time for trial. The fact that Rock Chalk Hills appealed an order without statutory authority to do so deprives us of jurisdiction. We can only review Chapter 61 appeals from final judgments or dispositive orders. Lacking jurisdiction over the continuance issue, we dismiss the appeal.
Alternatively, even if we had jurisdiction, we would not review Rock Chalk Hills' issue on appeal. That issue is moot.
Mootness
Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). This is a court policy which recognizes that the judiciary's role is to “determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996). The test for mootness is whether “ ‘it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.’ [Citation omitted.]” Montgomery, 295 Kan. at 840–41. A moot case will generally be dismissed.
As Rock Chalk Hills acknowledges, this case appears to fit within our Supreme Court's definition of mootness. Obviously this court cannot go back in time and direct the district court to schedule the eviction trial at an earlier date. The eviction trial has already been conducted, and Rock Chalk Hills has prevailed. Even if this court were to find that the district court erroneously continued the trial, such a finding would not impact any rights of the parties, each against the other.
The Montgomery case cited above has certain parallels with our current case. There the district court revoked Montgomery's probation and sent him to prison. Montgomery was aggrieved and appealed, contending that the district court should have imposed a lesser sanction for his violation than prison. While the appeal pended Montgomery served his entire sentence and was released from prison. To resist a dismissal of his appeal for mootness, Montgomery argued that his circumstances fit into an exception to the mootness dismissal rule. There are such exceptions. The Montgomery court stated one exception, which is the same one Rock Chalk Hills relies on here.
Yet, the mootness doctrine is not a question of jurisdiction. Therefore, it is amenable to exceptions. One commonly applied exception is the circumstance where a moot issue “is capable of repetition and raises concerns of public importance.” State v. DuMars, 37 Kan.App.2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007). In that context, public importance means “ ‘ “something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.’ “ “ Skillett v. Sierra, 30 Kan.App.2d 1041, 1048, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002) (quoting State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 [1991] ).
The Montgomery court found that Montgomery's complaints did not bring him within the exception. That court held:
“In this appeal, Montgomery complains that, after he admitted to breaking the rules of probation, the district court did not grant his request to go to drug treatment or the county jail, instead of prison. In other words, Montgomery does not challenge the fact that he violated the terms and conditions of his probation; he merely complains about the resulting punishment. We cannot change the sanction imposed for the probation violation because the prison term that Montgomery was ordered to serve has been completed. Likewise, as noted above, any answer that we might give on the appropriateness of the sanction imposed will not impact any future assessment of his amenability to probation. Therefore, this appeal presents a request for an advisory opinion on a moot issue. Moreover, Montgomery has not shown, nor do we discern, any reason to invoke an exception to the rule that appellate courts will not entertain moot issues. Accordingly, we affirm the Court of Appeals' dismissal for mootness.” (Emphasis added.) 295 Kan. at 844.
Here, as apparently in Montgomery, Rock Chalk Hills basically wants an appellate court to tell the district judge that the judge was wrong. But, as in Montgomery, any decision we might make would not change the fact that the trial docket was continued or that Rock Chalk Hills was awarded its judgment. Thus, this appeal, like that in Montgomery, is a request for an advisory opinion on an otherwise moot issue.
In spite of Rock Chalk Hills' insistence, it has failed to do any more than assert that its continuance issue “is capable of repetition and raises concerns of public importance.” This continuance, from the day after Christmas to the day after New Year's Day, was for 7 days. True, a continuance like this might be subject to repetition when holidays complicate the court's regular schedule. That does not constitute the kind of “capable of repetition” problem the exception contemplates. Further, Rock Chalk Hills has presented us with no information indicating that, over the decades that a statutory time-of-trial provision has applied to eviction trials (in 1969 it was 8 days from the appearance date under K.S.A. 61–2308, rather than 14), there has been any systemic failure in Douglas County or throughout the state to timely bring evictions to trial. Clearly, this issue is of great importance to Rock Chalk Hills and its attorneys. However, they have shown us nothing that convinces us that deciding whether K.S.A.2013 Supp. 61–3807 is discretionary or mandatory raises concerns of public importance. Rock Chalk Hills has failed to show that the facts here fit within the mootness dismissal exception it invokes.
We decline to give Rock Chalk Hills an advisory opinion on the discretionary/mandatory question it raises in this appeal. We have no jurisdiction over the issue appealed. Alternatively, the case is moot.
Appeal dismissed.