Turner v. Steele

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No. 105,552

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAN E. TURNER, et al.,
Appellees/Cross-appellants,

v.

LARRY STEELE, et al.,
Appellees.

(FIRST TRIBUNE INSURANCE
AGENCY, INC., and WESTERN
PLAINS FUNDS, INC.),
Appellants/Cross-appellees.


SYLLABUS BY THE COURT

1.
Standing is a jurisdictional question whereby a court determines whether a person
has alleged such a personal stake in the outcome of the controversy as to warrant
invocation of jurisdiction and to justify exercise of the court's remedial powers on his or
her behalf.

2.
Standing implicates a court's jurisdiction to hear a case, and therefore, the
existence of standing is a question of law over which an appellate court has unlimited
review.

3.
Purchasers at a sheriff's sale become parties and are entitled to file motions related
to the sale, the confirmation of the sale, or other matters relating to the property. The
courts recognize that purchasers have a right to be heard before any order is made
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affecting their rights. Holders of property rights are entitled to due process of law before
their property is taken.

4.
A sheriff's deed is sufficient evidence of the legality of the sheriff's sale. A
sheriff's deed vests title to the property in the purchaser. The burden of proving the
invalidity of a sheriff's deed is on the party challenging its validity.

5.
Title owners of real property have standing to request a delay of a sheriff's sale
and/or the subsequent confirmation of the sale because such actions could result in a
cloud on their title or otherwise negatively affect their title to the real property.

6.
Intervention in a lawsuit is subject to a determination of law and fact. An
appellate court reviews the factual findings made by the district court under a substantial
competent evidence standard and reviews de novo whether those findings are sufficient
to support its legal conclusions.

7.
Substantial competent evidence possesses both relevance and substance and
provides a substantial basis of fact from which the issues can be reasonably determined.

8.
A judgment from a federal foreclosure law suit that is filed in a Kansas state court
is a foreign judgment under K.S.A. 60-3001.



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9.
A judgment in a civil lawsuit becomes a lien on the debtor's property located
within the county where the judgment is rendered. A judgment registered in a district
court of another county becomes a lien on the debtor's real property in the registering
county. However, K.S.A. 60-601 only allows executions on the judgment to be issued
from the court in which the judgment is rendered.

10.
The staying of proceedings in a state court pending determination of a lawsuit in
a federal court is not a matter of right but rests on the rule of comity and involves the
exercise of discretion, which will not be interfered with unless clearly abused. A similar
comity principle applies when there are cases pending in different county courts within
the state.

11.
A stay order does not terminate a lawsuit; it merely postpones the disposition.
Like a continuance, the question of whether to stay a lawsuit is largely discretionary with
the court.

Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge. Opinion filed July 20,
2012. Reversed and vacated.

Casey R. Law, of Wise & Reber, L.C., of McPherson, for appellants/cross-appellees.

Richard F. Hayse and Maren K. Ludwig, of Morris, Laing, Evans, Brock, & Kennedy, Chtd., of
Topeka, for appellees/cross-appellants.

Before STANDRIDGE, P.J., MARQUARDT and ARNOLD-BURGER, JJ.

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MARQUARDT, J.: In 2000, the law firm of Turner and Turner and its principals,
Dan and Phillip Turner (Turners), obtained a default judgment in Shawnee County
District Court in a contract action against former clients who are members of the Steele
family and various Steele family businesses (the Steeles). The Turners had their judgment
transcribed in the Greeley County District Court in June 2000. After filing several
affidavits of renewal, in 2010 the Turners filed a praecipe in Shawnee County District
Court for a writ of special execution seeking to enforce their 2000 judgment. The writ
directed the Greeley County Sheriff to attach several parcels of real property located in
Greeley County and to commence a sheriff's sale of the attached real property.

Following issuance of this writ, First Tribune Insurance Agency, Inc. and Western
Plains Funds, Inc. (Landowners), who had redeemed and/or purchased the real property
following a mortgage foreclosure sale in 2002, filed motions to set aside (stay) the
scheduled sheriff's sale and to intervene until their Greeley County quiet title action
against the Turners was resolved. The Landowners appeal the district court's order
dismissing their motions for lack of standing and from the order confirming the sheriff's
sale. The Landowners also appeal from the Shawnee County District Court's refusal to
extend the post-sale redemption period until the merits of the Greeley County quiet title
action was resolved.

The Turners cross-appeal, contending the Landowners are prohibited from
challenging the denial of the Landowners' motion to intervene in the Shawnee County
case under the doctrine of invited error.

The Steeles have been the subject of litigation in state and federal district courts in
Kansas since at least the late 1980's. See, e.g., In re Steele Cattle, Inc., Nos. 94-1250
through 1253-PFK, 1996 WL 42073 (D. Kan. 1996) (unpublished opinion); Steele v.
Guardianship & Conservatorship of Crist, 251 Kan. 712, 714-16, 840 P.2d 1107 (1992).
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This appeal concerns the title to Greeley County real estate that once belonged to the
Steeles.
FACTS

In October 1999, John Hancock Mutual Life Insurance Company filed a mortgage
foreclosure action in the United States District Court of Kansas in a case captioned John
Hancock Mutual Life Ins. Co. v. Steele, Case No. 99-1406-JTM. The defendants in the
lawsuit were various members of the Steeles. John Hancock sought to foreclose
mortgages on property the Steeles owned in Greeley County, Kansas. See also John
Hancock Life Ins. Co. v. Steele, No. 90,943, 2004 WL 794532 (Kan. App. 2004)
(unpublished opinion) (discussing federal foreclosure case in a different dispute), rev.
denied 278 Kan. 845 (2004). At the time the federal foreclosure action was filed in 1999,
John Hancock filed a notice of its pending action in Greeley County as a lis pendens
notice under 28 U.S.C. § 1964 (1994) and Kansas law.

In April 1999, the Turners filed a civil lawsuit in Shawnee County, Case No. 99-
CV-544 against the Steeles and their businesses. The Turners claimed the Steeles hired
them to provide legal services in various civil and bankruptcy matters between 1988 and
1998. Under the terms of their employment contract, the Turners alleged the Steeles still
owed them approximately $560,000. After the Steeles failed to respond to the lawsuit, the
Turners obtained a default judgment in excess of $632,000. The court filed its journal
entry on May 17, 2000. The Turners assert that their judgment was transcribed in Greeley
County, Case No. 00-C-09, on or about June 26, 2000.

Meanwhile, John Hancock's federal foreclosure action proceeded to a default
judgment in that case on May 31, 2001. John Hancock filed a notice of the final judgment
in Greeley County in Case No. 01-C-10 within 2 weeks.

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On July 13, 2001, the United States District Court for Kansas issued a praecipe for
an order of sale of the real property identified in the John Hancock foreclosure
proceeding and directed the Greeley County Sheriff to conduct a sale of four separate
parcels of real estate. Notice of the praecipe for the sale was mailed to various attorneys,
members of the Steele family, and various other individuals and businesses. One of the
attorneys who was sent the notice was Jim Miles of Garden City, Kansas.

A sheriff's sale of the real estate was held in January 2002. Of relevance here, the
property identified as Count I property was described as:

"Southeast Quarter (SE/4) of Section Seventeen (17), Township Sixteen (16)
South, Range Forty (40) West of the 6th p.m., except a tract containing 2.68
acres, more or less, described as follows: Commencing at a point 50 ft. west and
30 ft. north of the southeast corner thereof, thence West 395 ft., thence North 295
ft., thence East 395 ft., thence South 295 Ft. to the point of beginning;
"West Half (W/2) of Section Ten (10), Township Seventeen (17) South, Range
Forty-one (41);
"Southwest Quarter (SW/4) of Section Two (2), Township Seventeen (17) South,
Range Forty-two (42);
"Northeast Quarter (NE/4) of Section Six (6), Township Nineteen (19) South,
Range Forty-two (42); and
"West Half (W/2) of Section Twenty-four (24), Township Nineteen (19) South,
Range Forty-three (43), all West of the 6th P.M."

The real estate identified as Count II property was described as:

"The North Half (N/2) of Section Thirty-five (35), the West Half (W/2) of Section
Twenty-five (25), and the Southeast Quarter (SE/4) of Section Twenty-five (25), all in
Township Sixteen (16) South, Range Forty-two (42) West of the Sixth Principal
Meridian."

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At the 2002 sheriff's sale, John Hancock purchased the real properties identified as
Count III and IV property. Two other parties purchased the real estate identified as Count
I and II.

In April 2002, the Greeley County District Court issued an order confirming the
sheriff's sale in the John Hancock case. The court set a redemption period for the Count I
property of 3 months and a redemption period for Count II property of 12 months.

In May 2002, the rights to redeem the Count I property were assigned to Schulte
Farms, Inc., Dennis L. Schulte, Charles H. Schulte, and Darvin Meurisse; the assignment
was recorded in Greeley County. Shortly thereafter, these parties redeemed the Count I
property and a sheriff's deed was issued to them. Several months later, Western Plains
Funds, Inc. purchased the Count II property from the Schultes and Meurisse.

In October 2002, the redemption rights to the Count II property were assigned to
First Tribune Insurance Agency, Inc. The assignment was filed in Greeley County, and
ultimately, First Tribune redeemed the Count II property. A sheriff's deed for the Count II
property was issued to First Tribune in January 2003.

In June 2004, the Turners, through attorney Jim Miles, obtained a writ of special
execution from the Shawnee County District Court directing the Greeley County Sheriff
to execute upon unrelated real estate in Greeley County, Kansas. At the Turners' request,
this writ was dissolved before the sheriff took action.

On May 2, 2005, the Turners filed an Affidavit of Renewal of Judgment in
Shawnee County Case No. 99-CV-544. In the affidavit, the Turners averred that except
for approximately $2,300, their original judgment remained uncollected.

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In October 2005, the Turners, again through attorney Jim Miles, filed a writ of
special execution from the Shawnee County District Court directing the Greeley County
Sheriff to execute upon and sell specific real estate in Greeley County. Larry Steele was
the owner of that real property. The real property was sold in a sheriff's sale to the
Turners for $160,000. The Shawnee County District Court confirmed the sale, and a
redemption period of approximately 11 months was set. Lance Steele timely redeemed
this property, and his payment to the court later was paid out to the Turners.

The Turners apparently took no further action to enforce their judgment against
the Steeles until April 2010. At this time, the Turners filed an Affidavit of Renewal of
Judgment in Shawnee County reflecting a judgment in excess of $1 million.

Two days later, the Turners (no longer represented by Miles) filed a praecipe for
writ of special execution in Shawnee County District Court. The Shawnee County
District Court issued the writ, stating that the Turners' judgment against the Steeles
remained unsatisfied and "is a lien on [the Steeles'] real property." The writ directed the
Greeley County Sheriff to attach specified real estate in Greeley County. The order
included the properties identified in the John Hancock foreclosure lawsuit as Count I and
Count II properties; as noted above, these pieces of real estate had been redeemed and/or
ultimately purchased by the Landowners. Although not included in the record on appeal,
the district court's appearance docket reflects that the writ was served on Steele family
members, various Steele businesses, and Western Plains Funds, Inc.

Shortly thereafter, the Landowners filed a motion in the Shawnee County case to
set aside the writ of special execution, asserting they were the record owners of the real
property and that they acquired title during prior foreclosure proceedings. The
Landowners denied the Turners had an enforceable lien on the property. The Landowners
also stated that they had filed a petition to quiet title in the real estate in Greeley County
District Court, case No. 2010-C-3, under K.S.A. 60-601. Accordingly, the Landowners
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asserted that no sheriff's sale of the property should be conducted prior to the resolution
of their quiet title action where the validity of the Turners' lien would be determined.

The Turners responded to the Landowner's motion and objected to staying the
sheriff's sale. The Turners attached copies of letters they sent to the Landowners for
payment of the Steele's judgment prior to seeking the writ. The Turners also contended
their lien against the properties had never been extinguished.

After filing their response to the Landowners' motion to stay, the Turners filed a
motion to strike the Landowners' pleadings. The Turners asserted that the Landowners
had not filed a motion to intervene under K.S.A. 60-224 and, therefore, they had no
standing to file pleadings in the case.

In an order filed May 19, 2010, the Shawnee County District Court denied the
motion to stay the sheriff's sale. The court concluded the Landowners failed to "carry
their burden" to justify a stay. The order was devoid of any factual findings or
conclusions of law.

A sheriff's sale was held in Shawnee County on May 20, 2010, where third parties
purchased the Landowners' property. The next day, the Landowners filed a motion
objecting to the confirmation of the sheriff's sale. After describing the results of the sale,
the Landowners reiterated that they had filed a petition to quiet title against the Turners in
Greeley County. The Landowners discussed the priority of the John Hancock foreclosure
proceeding and cited K.S.A. 60-2414(k) claiming it bars a second sheriff's sale of the
property. The Landowners argued that confirmation of the sheriff's sale of the property
should not take place before resolution of the quiet title lawsuit, especially since they
were not made parties to the Turners' Shawnee County lawsuit prior to the execution
order. In an amended pleading, the Landowners claimed that they have a reasonable basis
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to contest the Turners' claims. The Landowners stated that Greeley County is the only
county in which the disputed title to real property could be resolved.

Several weeks later, the Turners filed a motion for an order to confirm the sheriff's
sale and to pay out funds obtained from the sale. The motion requested that a sheriff's
certificate of purchase be issued to the various buyers from the sale. In a subsequent trial
brief, the Turners reiterated the basis for the attachment of their judgment lien and
asserted that as purchasers at a foreclosure sale, the Landowners took the property with
notice of the Turners' unforeclosed lien.

In further support of their position that the sheriff's sale should be stayed, the
Landowners filed a motion asserting that proper venue for the resolution of the title
claims was in Greeley County. Attached to the motion were various documents from the
federal foreclosure action and the 2002 sheriff's sale of the property.

The Turners again filed a motion to strike the Landowners' pleading by asserting
they had no standing to assert claims in the Shawnee County case. The Turners asserted
that the Landowners never filed a motion to intervene under K.S.A. 60-224, and a motion
to intervene was required in order for the Landowners to request any relief in the
collection proceeding. The Landowners responded, arguing that their claim to title to the
real estate gave them standing to seek a stay of the sheriff's sale and confirmation of the
sale. They asserted the fundamental issue to be resolved involved whether the Turner's
2000 judgment lien—which was the basis for the execution and sheriff's sale—could be
executed on the Landowners' property; that issue could only be resolved in the Greeley
County quiet title action.

In a memorandum decision filed September 28, 2010, the Shawnee County
District Court granted the Turners' motion to strike the Landowners' pleadings,
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concluding they had no standing in the case unless and until they filed a motion to
intervene under K.S.A. 60-224. Because the Landowners had no standing, the court
confirmed the sheriff's sale and found the Turners were "entitled to execution of their
judgment lien."

Thereafter, the Landowners filed a timely motion to alter or amend the judgment,
citing their right to be heard in the action and advising the court they had
contemporaneously filed a motion to intervene. They asserted that it was erroneous for a
court in Shawnee County to determine title to real estate in Greeley County. On the same
date, the Landowners filed a motion to intervene in the Shawnee County lawsuit. The
Landowners noted that the Turners never questioned their right to file motions in the
collection proceeding until late in the proceedings. The Landowners noted that it would
be illogical to hold that titled landowners would have no standing in a subsequent
proceeding seeking to execute a judgment on their real estate.

After additional briefing about standing and the Landowners' right to intervene,
the Shawnee County District Court issued its final memorandum and order denying the
Landowners' motion to intervene. The court reasoned that the Landowners did not satisfy
the requirements of K.S.A. 60-224 because they did not claim an interest in the
underlying claim in the case—the breach of contract claims of the Turners against the
Steeles. The court then rejected the Landowners' arguments that they had standing as a
nonparty under First Nat'l Bank & Trust Co. v. Wetzel, 42 Kan. App. 2d 924, 219 P.3d
819 (2009), because Wetzel involved factually different claims and issues. The court did
hold, however, that its order did not determine title to the real property in Greeley
County; instead, the order only determined that the Turners properly followed the
procedures to execute on their judgment lien. Because the court held that the Landowners
did not have standing, it declined to rule on their motion to extend the period of
redemption until the Greeley County quiet title action was resolved.

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The Landowners filed a timely notice of appeal from the Shawnee County District
Court's various rulings. Two timely amended notices of appeal were also filed.

STANDING

On appeal, the Landowners contend that the Shawnee County District Court erred
in finding they lacked standing to seek a stay of the sheriff's sale and/or confirmation of
the same in a collection proceeding against property that they undisputedly have a
colorable claim to ownership. The Turners, in response, contend that court was correct in
finding the Landowners lacked standing, asserting they could only possess standing by
timely intervening in the Shawnee County action.

Standing is a jurisdictional question whereby a court determines whether a person
has alleged such a personal stake in the outcome of the controversy as to warrant
invocation of jurisdiction and to justify exercise of the court's remedial powers on his or
her behalf. Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 750-51, 189 P.3d
494 (2008). Standing implicates the court's jurisdiction to hear a case, and therefore, the
existence of standing is a question of law over which an appellate court has unlimited
review. Bremby, 286 Kan. at 751.

As noted by the Kansas Supreme Court, the concept of standing is one of the
"'most amorphous concepts'" in the law. 312 Education Ass'n v. U.S.D. No. 312, 273 Kan.
875, 882, 47 P.3d 383 (2002) (quoting Harrison v. Long, 241 Kan. 174, 176, 734 P.2d
1155 [1987]). The concept of standing often is raised in constitutional challenges to
statutes and ordinances. See, e.g., State v. Coman, 294 Kan. 84, Syl. ¶ 3, 273 P.3d 701
(2012) (an appellant does not have standing to argue that a statute is unconstitutional as
applied to third parties in hypothetical situations); State v. Thompson, 221 Kan. 165, 172,
558 P.2d 1079 (1976) (stating rule that unconstitutional governmental action can only be
challenged by a person directly affected and such a challenge cannot be made by
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invoking the rights of others). Similarly, standing issues have frequently arisen when a
nonparty seeks to challenge the decision of an administrative agency that affects its
property interests. See, e.g., Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 908-
10, 249 P.3d 434 (2011) (water rights owners have standing to challenge agency's award
of water permits to city that may impact their permits); Bremby, 286 Kan. at 763
(adjacent landowners possessed standing to challenge issuance of landfill permit to third
party by agency).

In this particular case, the context of standing involves the question of whether a
nonparty may seek relief in the proceeding to which it was not made a party. This
particular variation of standing tends to arise in just this type of proceeding—attempts to
collect judgments. Below, the Landowners relied on Wetzel to establish that purchasers in
a foreclosure proceeding had standing to assert claims when a sheriff's sale was
challenged. In that case, First National Bank (FNB) filed a foreclosure against a
mortgagor and others to foreclose on various mortgaged parcels that served as collateral
for loans. The court granted judgment to FNB and a sheriff's sale was held. One of the
parcels of real estate was purchased at the sheriff's sale by the Wetzels, who tendered the
purchase price to the court. Sometime thereafter, the judgment debtor filed a motion to
set aside the sheriff's sale and return the purchase money to the bidders; the court granted
the motion. Thereafter, the Wetzels filed a motion for interest on their purchase money
from FNB because of the unconfirmed sale. The issue became whether the Wetzels, as
nonparties to the foreclosure proceeding, had standing to seek relief. The trial court
concluded the Wetzels had standing and awarded them interest expenses from FNB.

On appeal, FNB raised several challenges, including whether the Wetzels had
standing to pursue any form of relief as nonparties to the foreclosure action. This court
relied on numerous authorities holding that a purchaser at a sheriff's sale has "standing to
raise issues in court concerning the subject matter of the sale." (Emphasis added.) Wetzel,
42 Kan. App. 2d at 927. In those cases, the Kansas appellate courts have held that
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purchasers at a sheriff's sale become parties and are entitled to file motions related to the
sale, the confirmation of the sale, or other matters relating to the property. The courts
recognize that purchasers have a right to be heard before any order is made affecting their
rights. See, e.g., Sumner County Comm'rs v. Avis, 163 Kan. 388, 391, 183 P.2d 462
(1947) (purchaser at a sheriff's sale became a party and could appeal an order setting
aside the sale); Cowdin v. Cowdin, 31 Kan. 528, 529, 3 P. 369 (1884) (same).

Although recognizing the factual differences of the Wetzels' claims for interest,
this court found they had become parties as a result of their bid and had an interest in
being heard on issues relating to the subject matter of the sheriff's sale. Based upon their
bid and purchase, this court held the Wetzels had sufficient stake in the outcome of the
controversy to pursue their claim for interest expenses. Wetzel, 42 Kan. App. 2d at 928.

The Supreme Court also has recognized that there could be statutory grounds for
standing, but that there were also traditional grounds for standing. Cochran, 291 Kan. at
908-09. Here, the Landowners meet the traditional definition of persons with standing
because they have "'suffered a cognizable injury and that there is a causal connection
between the injury and the challenged conduct.' [Citations omitted.]" Cochran, 291 Kan.
at 908.

In the present case, the district court was correct that the facts of this particular
case are distinguishable from Wetzel and the cases it relied upon. Here, the Landowners
are not challenging proceedings directly involved in the 2002 sheriff's sale in which they
purchased the Greeley County property. Instead, they are attempting to seek limited
relief—a stay of proceedings—involving a different judgment creditor who is attempting
to execute on the property they purchased. However, the reasoning still applies that as a
title owner of real estate, they have a protectable interest in being heard before a judicial
ruling, including a confirmation of a sheriff's sale, should be permitted to cloud their title
to the land.
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Older Kansas cases have permitted nondebtors claiming an interest in property
executed upon to seek relief prior to a sheriff's sale of their property. For example, in
Yount v. Hoover, 95 Kan. 752, 755, 149 P. 408 (1915), the court held that the title owner
of real property could file an action to enjoin sheriff's sale of his property that had been
executed upon for debt of another. Moreover, the title owner was not required to name
the judgment creditor as a party to the action. The Yount court also noted that the
availability of an action to quiet title did not bar the right to seek injunctive relief. Yount,
95 Kan. at 755-56. In Yount, the court held that even if the execution was invalid on its
face, the owner's right to advantageously sell or mortgage the property was impacted.
Thus, the owner should not be required to wait for confirmation of the sheriff's sale and
an action for ejectment before seeking relief. "This is not good sense. It is not good
reason." Yount, 95 Kan. at 760-61.

If the Landowners would be entitled to seek injunctive relief against the Greeley
County Sheriff, why would they lack standing to simply seek a stay of the sheriff's sale or
confirmation in the county that issued the writ of execution? In this case, the Turners
have never disputed that the Landowners have some claim to title to the real estate in
dispute; they do not deny that an action to quiet title—where the validity of the Turners'
judgment can be resolved—is pending. The Turners simply claim the Landowners have
no standing to delay the sheriff's sale and confirmation in the case before the court.

Holders of property rights are entitled to due process of law before their property
is taken. See Hillhouse v. City of Kansas City, 221 Kan. 369, 374-75, 559 P.2d 1148
(1977) (finding prejudgment attachment statutes unconstitutional due to lack of adequate
notice procedures and failure to grant party an opportunity to be heard "'at a meaningful
time and in a meaningful manner'"). A sheriff's deed is sufficient evidence of the legality
of the sheriff's sale and vests title to the property in the purchaser under K.S.A. 60-2416.
A party challenging the validity of a sheriff's deed has the burden of proving its
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invalidity. Thus, we find that the district court's conclusion that its order confirming the
sheriff's sale did not establish title missed the mark—the confirmation clearly affected the
Landowners' title in a significant manner.

Title owners of real property have standing to request a delay of the sheriff's sale
or a subsequent confirmation of the sale because such actions could result in a cloud on
their title or otherwise negatively affect their title to the real property. See Cochran, 291
Kan. at 908.

INTERVENTION UNDER K.S.A. 60-224

The Landowners do not directly appeal from the district court's holding that they
do not qualify to intervene under K.S.A. 60-224. In fact, the Landowners seem to
concede they do not meet the statutory standards because they cannot file a "pleading" as
defined in K.S.A. 60-207. The Turners contend the only method by which the
Landowners could have standing in the case was to intervene and they could have
intervened but their motion to intervene was untimely.

Because the Landowners do not appeal the district court's denial of their motion to
intervene, this issue (and the Turners' cross-appeal regarding intervention) is not properly
before the court. Moreover, as the cases discussed above hold, standing is not necessarily
predicated upon statutory authority alone.

K.S.A. 60-224(a) provides, in relevant part:

"On timely application anyone shall be permitted to intervene in an action:
. . . .
"(2) when the applicant claims an interest relating to the property or transaction
which is the subject of the action and [the applicant] is so situated that disposition of the
17

action may as a practical matter substantially impair or impede [the applicant's] ability to
protect that interest, unless the applicant's interest is adequately represented by existing
parties." (Emphasis added.)

Intervention as a matter of right is subject to the same mixed determination of law
and fact. K.S.A. 60-224(a). Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 533, 216 P.3d
158 (2009). In such circumstances, this court reviews the factual findings made by the
district court under a substantial competent evidence standard and reviews de novo
whether those findings are sufficient to support its legal rulings. Lewis v. R & K Ranch,
41 Kan. App. 2d 588, 592, 204 P.3d 642 (2009). Substantial competent evidence
possesses both relevance and substance and provides a substantial basis of fact from
which the issues can be reasonably determined. Frick Farm Properties v. Kansas Dept. of
Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009).

As noted by the Landowners, they had no "interest relating to the property or
transaction that is the subject of the action" because the action was a breach of contract
claim for payment of legal services. The real property was not the subject of the
underlying action. Assuming this issue is properly before this court, the district court did
not err in finding the standards of K.S.A. 60-224 were not met.

However, the lack of the Landowners' formal intervention did not deprive them of
standing to seek the relief they were requesting. The Landowners were not challenging
the Turners' judgment against the Steeles; they were simply seeking a stay of execution
of the judgment against their real property until a decision was made whether the
judgment was valid against the real property.

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STAY OF THE SHERIFF'S SALE AND CONFIRMATION OF THE SALE

Because the Landowners have standing to participate in the execution proceeding,
the final issue is whether the district court abused its discretion in denying their motion to
stay: (1) the sheriff's sale; (2) the confirmation of the sheriff's sale; and (3) the expiration
of the period of redemption.

The Landowners claim the Shawnee County District Court had no jurisdiction to
determine the validity of the Turners' lien on their real property. They claim that decision
could only be made by the district court in the county where the real estate is located. The
Turners, on the other hand, assert that under K.S.A. 60-2202, only Shawnee County
could issue the writ of execution.

Because of Kansas' anachronistic statutory system, both parties are correct.
However, the concepts of execution of liens and the validity of liens are legally distinct,
and the jurisdiction (or more appropriately, authority) of the two district courts involved
in the dispute do not conflict.

K.S.A. 60-2202(a) specifically provides that a judgment in a civil action becomes
a lien on the debtor's property located within the county where the judgment is
"rendered." The statute then provides a vehicle for the judgment creditor to "register" its
judgment in the district court of another county, at which time the judgment becomes a
lien on the debtor's real property in the registering county. However, the statute concludes
that "[e]xecutions shall be issued only from the court in which the judgment is rendered."
(Emphasis added.) K.S.A. 60-2202(a).

The Kansas Supreme Court has interpreted this final language literally. In
Needham v. Young, 205 Kan. 603, 470 P.2d 762 (1970), the judgment creditor obtained a
judgment in Edwards County and then registered it with Hodgeman County. The latter
19

court then issued a writ of execution to the sheriff to seize the judgment debtor's real
estate in Hodgeman County. The property was sold at a sheriff's sale. The owners
subsequently challenged the sale because the sale price was inadequate and because the
execution was wrongfully issued. The Kansas Supreme Court agreed the sale should be
set aside, in part, because it was made in violation of the express provisions of the statute
requiring the execution be issued from the court where the judgment was rendered.
Needham, 205 Kan. at 606.

Although Needham did not address the issue asserted by the Landowners here—
that K.S.A. 60-601(b) requires that actions for the sale of real property must be filed in
the county where the real property is located—the opinion explicitly interprets the
authority of the "rendering court" to issue writs of execution.

Still, the Landowners' focus is not the issuance of the writ itself but the need to
stay the execution process in order to determine the validity of the Turners' lien against
the property. Thus, the Landowners are correct that such an action must be pursued in
Greeley County. See K.S.A. 60-601.

Therefore, the question is whether, as a matter of comity and judicial economy, the
district court abused its discretion in denying the Landowners' motion to stay the sheriff's
sale and confirmation of the sale.

"The staying of proceedings in a state court pending determination of an action in
a federal court is not a matter of right but rests on the rule of comity and involves the
exercise of discretion, which will not be interfered with unless clearly abused. [Citations
omitted.]" Henry v. Stewart, 203 Kan. 289, 293, 454 P.2d 7 (1969). We find that the
comity principle applies when there are cases pending in different county courts within
the state. A stay order does not terminate the action but merely postpones its disposition.
20

Like a continuance, the question of staying an action is largely discretionary with the
court. Henry, 203 Kan. at 293.

Courts in other jurisdictions have recognized that disputes over priority or validity
of liens or claims to property executed upon in a collection proceeding can be grounds for
staying a sheriff's sale or confirmation of the same. See City of Easton v. Marra, 862
A.2d 170, 172-73 (Pa. Commw. 2004) (court in which an execution proceeding is
pending has an inherent right to stay execution when it is necessary to protect the rights
of a party); see also Wilmington Trust Co. v. Lucks, No. 98C-02-001 HDR, 1999 WL
743255, at *7 (Del. Super. 1999) (unpublished opinion) (stay of sheriff's sale issued until
resolution of action asserting property in dispute was fraudulently conveyed); Courts
have recognized that the ultimate control of the execution process, and the responsibility
to see that the process is not abused, rests with the trial court. Unity Sav. Ass'n v. Am.
Urban Sciences, 337 Pa. Super. 470, 477, 487 A.2d 356 (1984).

The lawsuit to foreclose the mortgage on the Steeles' real property was filed on
October 6, 1999, in the United States District Court of Kansas. The Turners received
default judgment against the Steeles on May 17, 2000; they transcribed their judgment
against the Steeles in Greeley County on June 26, 2000. The judgment of foreclosure in
the federal court case on the Steeles' real property was entered on April 30, 2001. That
judgment was filed in Greeley County on June 12, 2001.

During oral argument, appellees' counsel argued that the federal court foreclosure
action that was the basis for the Greeley County quiet title action is not a foreign
judgment. Under K.S.A. 60-3001, a foreign judgment "means any judgment decree or
order of a court of the United States or of any other court which is entitled to full faith
and credit in this state." We hold that a judgment from a federal foreclosure lawsuit that
is filed in a Kansas state court is a foreign judgment under K.S.A. 60-3001.

21

On May 4, 2012, the Greeley County District Court entered an order finding:

"8. Under K.S.A. 2011 Supp. 60-2414(k), real estate once sold upon order of sale shall
not again be liable for sale for any balance due upon the judgment or decree under which
it is sold, or any judgment or lien inferior thereto, including unadjudicated junior liens
filed after the petition is filed to foreclose the senior lien against the real estate.

"9. . . . [W]hen the property was sold at the Greeley County Sheriff's sale and Defendant
Turners failed to purchase or to exercise the redemption rights given to them under
K.S.A. 2011 Supp. 60-2414(b) and (c), the property could not again be liable for sale for
any balance due upon the inferior judgment lien they held. Why? Because the Turner
Defendants' judgment lien did not come into being until after the John Hancock
foreclosure had been filed."

The Greeley County District Court granted judgment in favor of the Landowners
and quieted their "title in and to the subject real estate."

However, these issues were not properly before the Shawnee County District
Court and are only relevant to weighing whether staying the execution proceedings was
appropriate. Here, the Landowners established legitimate grounds to stay the sheriff's sale
and the confirmation of the sale pending resolution of the quiet title action. The Turners
do not dispute the Landowners' interest in the real property, only whether their judgment
lien remained attached to the real estate. The Turners waited over 10 years, for reasons
unexplained in the record, to execute on this real estate after obtaining their judgment. In
addition, the Turners have not alleged that delaying the sale or confirmation thereof
would have damaged their interests in any measurable fashion.

Therefore, we find the Shawnee County District Court abused its discretion and
erred in refusing to stay the sheriff's sale and refusing to rule on the subsequent requests
to stay the confirmation and to extend the redemption period. The district court's order
22

striking the Landowners' motions for lack of standing is reversed. Likewise, the court's
confirmation of the sheriff's sale is vacated.

Reversed and vacated.