Opinion
No. 110,957.
2014-11-21
In the Matter of the MARRIAGE OF William G. SMITH, Appellant, and Merle J. Smith, Appellee.
Appeal from Miami District Court; Steven C. Montgomery, Judge.Kyle A. Branson, of Gillette Law Firm, P.A., of Mission, for appellant.Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, P.A., of Lenexa, for appellee.
Appeal from Miami District Court; Steven C. Montgomery, Judge.
Kyle A. Branson, of Gillette Law Firm, P.A., of Mission, for appellant. Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, P.A., of Lenexa, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
William G. Smith (Bill) appeals from an order of the district court granting the motion of his ex-wife, Merle Jean Smith (Jean), to enjoin an auction of the parties' property and enforce the terms of the property settlement agreement (the Agreement) incorporated into the divorce decree. Bill also challenges the district court's decision granting Jean her attorney fees in the district court and objects to her request for additional attorney fees incurred in defending this appeal.
Factual and Procedural Background
Bill and Jean were divorced in April 2013 after almost 35 years of marriage. Their divorce decree incorporated the terms of the Agreement, Paragraphs 42–50 of the Agreement govern how the parties are to select an auction company to conduct a sale and liquidation of their interests in several rental properties, an oil and gas business, a pipelining business, and several properties under contract for deed. Paragraph 43 sets forth a “goal and intent” to accomplish the sale within 30 days of the approval of the Agreement by the district court and its filing with the district court clerk. The operative terms of the Agreement around which the current dispute revolves are set forth in Paragraphs 45, 46, and 47:
“45. Subject to the terms and conditions herein, the parties agree that Husband shall select the company (or companies) to conduct the auction of the [itemized properties and businesses].
“46. Husband's attorney shall notify Wife's attorney, in writing, immediately after Husband has selected the company (or companies) to conduct the auction of the [itemized properties and businesses], and provide the name, address and phone number of the auction company. Within seven (7) working days of Wife's counsel receiving notice of Husband's proposed company to conduct the auctions, written notice must be provided to Husband's attorney which either accepts Husband's proposed selection or rejects Husband's proposed selection. If Wife rejects Husband's proposed selection, Husband shall then be required to choose another company to perform the auction(s) of the [itemized properties and businesses], subject again to Wife's written approval of Husband's selection. This procedure shall continue until the parties reach a written agreement concerning the selection of the company or companies to auction the [itemized properties and businesses]....
“47. Upon the agreement by the parties of the company or companies to perform the auction(s) of the [itemized properties and businesses], the parties shall mutually retain the services of said company or companies, and the parties further agree to follow the recommendation of said company or companies as it concerns the process and procedure regarding the sale and auction of the above-described items.
Paragraph 50 provides: “The parties agree that the Court shall retain jurisdiction regarding any dispute or disagreement pertaining to this section and may issue orders in order to effectuate the intent of the parties.”
Paragraph 70 of the Agreement further provides:
“If either Husband or Wife defaults in the performance of any of the terms, provisions or obligations herein set forth, and it becomes necessary to institute a legal proceeding to effectuate performance of any provision of this Agreement, then in such case the party found to be at fault shall pay all expenses, including reasonable attorney's fees, incurred in connection with such enforcement proceedings.”
On May 10, 2013, Bill's counsel mailed Jean's counsel a proposal from Blue Ribbon Realty (Blue Ribbon) of Gardner dated April 27, 2013. The proposal, titled “Proposal for Bill Smith Real Estate and Oil Well Auction,” was submitted by Randy Easley and identified the key auction participants: K.G. Moll, Realtor; Jerry Stricker, Auctioneer–Broker; and Randy Easley, Consulting Auctioneer. The proposal set forth both Stricker's and Easley's credentials.
On May 20, 2013, Jean's counsel emailed Bill's counsel, advising him that Jean agreed to the use of Blue Ribbon to conduct the auction. Three days later, Bill's counsel acknowledged Jean's acceptance and indicated Bill would be in contact with Blue Ribbon to get the auction process started. Bill subsequently met with Moll, who told Bill he would be in touch after that meeting, but Bill never heard from him.
In early July, Jean's counsel wrote Bill's counsel, inquiring whether Blue Ribbon was still involved or if they should expect to receive a new proposal from Bill about what auction company would be used. Bill's counsel responded that despite a “bump in the process” involving a co-auctioneer that had been contracted by Blue Ribbon to conduct the auction, “the auction process is in full swing and still on track,” and was scheduled to be held on August 14, 2013. Bill later learned that Moll and Blue Ribbon had withdrawn their interest in conducting the auction, a fact confirmed by Jean's counsel no later than July 17, 2013.
At some point, Easley informed Bill that Lindsay Auction Service, Inc. had been contacted to conduct the auction. Bill did not select Lindsay Auction Service to conduct the auction. However, Lindsay Auction Service had the properties professionally photographed, placed the photos on its website, advertised the auction in five states, posted signs, and had title work done. The auction was scheduled to proceed on August 14.
On or about July 30, 2013, Bill informed his counsel, who then notified Jean's counsel, that Easley had chosen Lindsay Auction Services to conduct the auction. Jean's counsel responded that Jean only agreed to Blue Ribbon, Moll, and Stricker after spending “considerable time and effort” investigating them, and she objected to the use of Lindsay Auction Service. In reply, Bill's counsel indicated the parties had agreed on Easley and suggested he would pursue court action against Jean if she did not offer reasonable concerns for why the auction could not proceed on August 14.
Jean responded to Bill's final correspondence by filing her motion that is the underlying subject of this appeal. In short, Jean moved the court to enforce the Agreement and stay the August 14 auction based on allegations that Bill had breached the Agreement. She also asked the court to order Bill to pay her attorney fees and costs for having to seek that relief. Bill filed a written response, denying that he breached the Agreement.
On August 12, 2013—2 days before the scheduled auction—the same district judge who presided over the parties' divorce proceedings conducted a hearing on Jean's motion. Both Jean and Bill testified, and the parties' correspondence on this issue was admitted without objection. At the close of the hearing, the district court announced its findings:
• Paragraph 45 of the Agreement was breached when Bill allowed Easley to pick the auction company.
• Paragraph 46 of the Agreement was breached because the parties did not, after proper notice, reach a written agreement to use Lindsay Auction Service.
• Paragraph 47 of the Agreement was breached because the parties had only mutually agreed to use Blue Ribbon as the auction company.
Finding Bill had “not complied with the terms of the settlement agreement incorporated as the order of the court,” the district court ordered that Lindsay Auction Service could not conduct the auction absent a mutual written agreement. The court noted the possibility that the parties might “reach some sort of an agreement” to use Lindsay Auction Service, commenting they “need to get this thing[ ] done” in light of their advanced age (at the time, Bill was 85 and Jean was 88). But nothing in the record indicates that any such agreement was ever reached or that the auction has ever been held. The district court also awarded Jean $3,060 in attorney fees. Bill appeals.
The Issues on Appeal
Breach of Contract
In his first issue on appeal, Bill raises three challenges to the district court's judgment: First, he contends that the district court erred in finding he breached the Agreement; second, he contends that Jean also breached the Agreement by not exercising due diligence before rejecting Lindsay Auction Service, breaching her duty of good faith and fair dealing; and third, he contends that Jean failed to prove damages resulting from any breach of the Agreement by Bill.
Jean responds that the district court properly enforced the Agreement by enjoining the sale by Lindsay, because the parties had not mutually agreed on that company to auction their property.
Standard of Review
Where the parties call upon this court to interpret their Agreement, our review is de novo. See Liggett v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002).
“If a contract is not ambiguous it must be enforced according to its terms, for the law presumes the parties understood their contract and that they had the intention which its terms import. [Citations omitted.] As a general rule, when a contract is complete and unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of the contract evidenced by the writing is inadmissible.” Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978)
Whether a contract has been breached is a question of fact. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, Syl. ¶ 4, 298 P.3d 250 (2013). When reviewing questions of fact, an appellate court's function is to determine whether the trial court's findings are supported by substantial competent evidence. State v. Turner, 259 Kan. 864, 871, 915 P.2d 753 (1996). Substantial competent evidence is that which is both relevant and substantial and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011). This court cannot reweigh conflicting evidence or reevaluate the credibility of witnesses in reviewing for substantial competent evidence. Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009).
Bill's Breach
The terms of the Agreement herein are clear and unambiguous. Bill and Jean must mutually agree upon the company that will auction their properties. They initially agreed to use Blue Ribbon pursuant to the April 27, 2013, proposal. When Blue Ribbon subsequently declined to be so employed, it was incumbent upon Bill to propose another auctioneer, subject to Jean's acceptance or rejection. The process was to continue until a mutual agreement was reached. This is the clear intent of the parties as gleaned from the plain language of the Agreement.
Bill denies personal responsibility for securing the services of Lindsay Auction Service. Nonetheless, he argues that by agreeing to Blue Ribbon he and Jean had agreed to use Easley and that agreement somehow implied that Easley had some authority to select a substitute auction company when Blue Ribbon backed out. Bill suggests that he simply followed the recommendation of Easley in order to have the auction conducted expeditiously as the parties had originally intended. Bill, however, concedes that “this was not the process that the parties had agreed upon.”
Bill's argument is contradicted by the plain language of the Agreement. The district court properly ruled:
“[N]othing in the evidence that has been submitted today ... authorizes Mr. Easley to perform that function [ i.e., choosing the auction company]. It's not there. So if [Bill's] testimony is that he did not select the company or companies to conduct the auction, he's noncompliant with the Paragraph 45.”
Jean's Breach
Bill next attempts to shift blame to Jean, alleging that she breached an implied duty of good faith and fair dealing when she “did absolutely nothing to verify the qualifications of Lindsay Auction Service[ ]” and instead arbitrarily rejected them.
In granting Jean's motion to enforce the Agreement, the district court found that Jean did nothing to breach the Agreement. The district court noted that “[t]here's no language in this agreement that require[d] anybody to have any reasonable basis for proposing a particular company or for rejecting a particular company.” Indeed, the record would establish that Jean had, in fact, acted in good faith by investigating and accepting Blue Ribbon in the first place; she then respectfully declined to accept an unknown substitute which was not even properly selected by Bill.
Bill wholly fails to establish any factual premise in support of his argument that Jean violated any duty of good faith and fair dealing.
Failure to Establish Damages
Under Paragraph 50 of the Agreement, the district court retained jurisdiction to enter orders to effectuate the intent of the parties. This is exactly the relief sought by Jean—specific performance of the Agreement provision that the auction be conducted by an auctioneer mutually agreed upon by the parties. The order of the district court precluding Lindsay Auction Service from proceeding with the August 14 sale was clearly in effectuation of the parties' Agreement.
Bill cites no authority for his assertion that Jean must prove damages in order to specifically enforce Bill's obligations under the Agreement. Failure to support a point with pertinent authority is akin to failing to brief the issue, and such issue is deemed to be waived and abandoned. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013); see Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Judgment
The district court's judgment enforcing the Agreement of the parties and precluding Lindsay Auction Service from conducting the auction on August 14, 2013, absent written mutual agreement is legally and factually correct and is affirmed.
District Court Attorney Fees
Bill contends that the district court erred in awarding Jean $3,060 for costs and attorney fees expended in the district court action. Jean responds that the district court did not abuse its discretion in awarding her those reasonable fees and costs she incurred to enforce the Agreement.
Bill does not dispute that the district court had authority to award Jean attorney fees. Paragraph 70 of the Agreement expressly provided for such an award. The Kansas Family Law Code–Revised also authorizes an award of attorney fees to either party “as justice and equity require.” K.S.A.2013 Supp. 23–2715. Accordingly, this court's review is limited to determining whether the district court's award reflects an abuse of discretion. See Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 572, 215 P.3d 561 (2009).
Bill's basic contention is that the district court's award is based on an erroneous finding of fact, i.e., that Bill breached the Agreement. This point is necessarily without merit since we have determined that the district court properly ruled that Bill was in breach of the Agreement. Bill alternately contends that, in any event, $3,060 is not a reasonable amount.
In determining the reasonableness of attorney fees, Rule 1.5(a) of the Kansas Rules of Professional Conduct (2013 Kan. Ct. R. Annot. 503) sets forth eight criteria that should be considered by the court. See Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000).
The district court's judgment reflects that it properly considered each of the prescribed factors. The record further establishes that the district court specifically considered and rejected the same challenges Bill now raises in this appeal. Bill's short argument, which lacks any citation to the record, provides no basis for this court to disturb the findings by the district court.
The attorney fee award below is affirmed.
Appellate Attorney Fees
Jean has also moved this court to order Bill to pay costs and fees associated with her defense of this appeal. We have authority to award attorney fees for services on appeal in cases where the district court had authority to award attorney fees. Supreme Court Rule 7.07(b)(1) (2013 Kan. Ct. R. Annot. 67). Further, as noted above, Paragraph 70 of the Agreement anticipates that the party found to be at fault in any litigation necessary to effectuate performance of any provision of the Agreement shall pay all expenses including reasonable attorney fees.
Jean seeks a total of $6,770 for attorney fees and costs incurred by her appellate counsel. The motion is appropriately itemized and documented. Bill complains that he should not have to pay for the time which Jean's new appellate counsel spent to become familiar with the prior proceedings, but he does not itemize the time for which he thinks he should not have to be responsible, nor does he cite any authority or explain why his reasoning is sound in this regard.
It has been noted that “[a]ppellate courts are experts on the reasonableness of attorney fees.” In re Estate of Hjersted, 285 Kan. 559, 590, 175 P.3d 810 (2008). K.S.A.2013 Supp. 23–2715 permits an award of attorney fees to either party “as justice and equity require.”
Here, Bill's breach of contract fomented the litigation in the trial court. Rather than accept the ruling and expeditiously perform pursuant to the clear and unambiguous provisions of the Agreement, which would have been in the best interest of both parties, he prolonged the litigation by taking this appeal. His fault having been confirmed on appeal, he now stands responsible, both under the terms of the Agreement and in justice and equity, for the costs and fees incurred.
We find nothing in the record to dissuade us from the conclusion that Jean's request for $6,770 is reasonable and appropriate under the circumstances, and judgment is rendered accordingly.
Conclusion
The judgments of the district are affirmed and Jean is further awarded $6,770 for her attorney fees and costs on appeal.