Brummer v. Kansas Employment Security Bd. of Review

NOT DESIGNATED FOR PUBLICATION

No. 114,698

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PAMILA K. BRUMMER,
Appellee,

v.

KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW,
Appellant.


MEMORANDUM OPINION

Appeal from Mitchell District Court; KIM W. CUDNEY, judge. Opinion filed September 2, 2016.
Appeal dismissed.

Ashlee N. Yager, special assistant attorney general, and Justin L. McFarland, deputy general
counsel, of Kansas Department of Labor, for appellant.

No appearance by appellee.

Before ATCHESON, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: Pamila Brummer worked for the City of Cawker City for about 7 years
before she was fired for what the City called "absence from employment without leave."
Under the Kansas Employment Security Law, K.S.A. 44-701 et seq., enacted in 1937,
employers contribute to a state fund that is used to pay unemployment benefits to
qualified workers who find themselves involuntarily unemployed. See K.S.A. 2015 Supp.
44-702, 44-704, 44-710, 44-710a, 44-710b. But under K.S.A. 2015 Supp. 44-706, an
employee who is fired for misconduct doesn't receive unemployment benefits, and
Brummer was denied unemployment benefits on that basis. She appealed, and the district
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court reversed, finding that K.S.A. 2015 Supp. 44-706 required the City to notify
Brummer that continuing to miss work would get her fired. Because the City didn't notify
her, the court said, it couldn't show that Brummer was fired for misconduct, and
Brummer was entitled to receive unemployment benefits.

The Kansas Employment Security Board of Review, which administers appeals of
unemployment-compensation rulings, see K.S.A. 2015 Supp. 44-709, then appealed to
our court, arguing that the district court had wrongly interpreted the law—that the statute
doesn't require the City to give such notice. But while the appeal to our court was
pending, the Board went ahead and paid Brummer her unemployment benefits as the
district court directed. Under long-standing Kansas law, when a party voluntarily
complies with a judgment, that party is precluded from appeal because it has already
acquiesced to the judgment. Under the acquiescence rule, we do not have jurisdiction to
consider the merits of the Board's claims. We therefore dismiss the appeal for lack of
jurisdiction.

The only factual matters we must set out to explain our ruling relate to the
jurisdiction issue. We are required consider whether we have jurisdiction to hear a case
when the record before us suggests we may not. Kaelter v. Sokol, 301 Kan. 247, 247, 340
P.3d 1210 (2015). Jurisdictional issues—including whether a party has acquiesced to a
judgment—present a legal question that we consider independently. Uhlmann v.
Richardson, 48 Kan. App. 2d 1, 6, 287 P.3d 287 (2012), rev. denied 298 Kan. 1208
(2013).

After Brummer applied for unemployment benefits, the Kansas Department of
Labor found that she was disqualified from receiving benefits as of August 29, 2014,
because she had been fired for misconduct—specifically, "failure to report for work when
scheduled, and to notify the employer of the absence."

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Brummer appealed the denial of unemployment benefits. An unemployment-
benefits referee who heard testimony affirmed the denial of unemployment benefits but
changed the effective date to September 11, 2014 (finding that the misconduct occurred
when she missed work without notice for several days in early September). Brummer
then appealed the referee's decision to the Kansas Employment Security Board of
Review. The Board affirmed the referee's decision in a one-page decision adopting the
referee's findings.

Brummer then appealed the Board's decision to the district court. It reversed the
Board's decision based on its conclusion that the Board had incorrectly interpreted the
statute regarding what an employer must show before a worker can be fired for
misconduct based on absences from work.

The Board then appealed to our court. And while the appeal was pending, the
Board advised us that through an "administrative clerical error," it had already paid
Brummer her unemployment benefits, in compliance with the district court's judgment.
For that reason, this court must consider whether the Board has acquiesced—passively
accepted, complied with, or submitted to—the district court's judgment, cutting off its
right to appeal that judgment. See Merriam-Webster's Collegiate Dictionary 11 (11th ed.
2014); Black's Law Dictionary 27 (10th ed. 2014).

The legal framework for our consideration has been established in many Kansas
appellate cases over several decades. Acquiescence occurs when a party voluntarily
complies with a judgment by assuming the burdens or accepting the benefits of the
judgment challenged on appeal. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271,
136 P.3d 457 (2006). A party that voluntarily complies with a judgment should not be
permitted to pursue an inconsistent position by appealing from that judgment, and it's
inconsistent for a party to voluntarily pay a money judgment while at the same time
arguing on appeal that the judgment was incorrect. 281 Kan. at 1271; Hemphill v. Ford
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Motor Co., 41 Kan. App. 2d 726, 728, 733, 206 P.3d 1 (2009). "'The gist of acquiescence
sufficient to cut off a right to appeal is voluntary compliance with the judgment.'" Varner
v. Gulf Ins. Co., 254 Kan. 492, 494, 866 P.2d 1044 (1994) (quoting Younger v. Mitchell,
245 Kan. 204, Syl. ¶ 1, 777 P.2d 789 [1989]). Whether a payment is voluntary depends
on the facts of the particular case—the question is whether the payer intended to waive
his or her legal rights. Varner, 254 Kan. at 497; City of Kingman v. Ploog, No. 114,009,
2016 WL 3659856, at *4 (Kan. App. 2016) (unpublished opinion).

Here, the Board claims the payment to Brummer was the result of an
"administrative clerical error." The Board's argument appears to be that because the
payment was made in error, it was unintentional, so the Board didn't intend to give up its
right to appeal. But the Kansas Supreme Court has held that even if a party makes a
partial payment on a judgment while expressly reserving the right to appeal, that party
has acquiesced in the judgment if the partial payment is part of what's being contested on
appeal. Varner, 254 Kan. at 497. Here, the Board didn't even expressly reserve the right
to appeal; it simply contends that it didn't mean to pay Brummer.

The Board nowhere suggests that it was somehow forced to pay Brummer. This
may seem strange to the lay reader—the district court ordered that Brummer was entitled
to the benefits, so one might think that the Board was forced to make the payments. But
legal judgments generally don't take effect until appeals have been exhausted, and the
Board makes no argument here that it had to comply with the district court's order while
the appeal was pending.

Instead, it cites language from Uhlmann stating that acquiescence only occurs
when a party's actions "'"clearly and unmistakably show an inconsistent course of
conduct or an unconditional, voluntary and absolute acquiescence,"'" suggesting that a
mere clerical error doesn't mean the party has acquiesced. 48 Kan. App. 2d at 17 (quoting
James v. Amrine, 157 Kan. 397, 403, 140 P.2d 362 [1943]). But the Uhlmann case
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presented a much different situation than we have here. Uhlmann won a money judgment
and attempted to garnish the other party's bank account but didn't actually collect any
money on the judgment. The court explained that a garnishment attempt is the only way
for the winning party (the "judgment creditor") to protect its judgment because it can
force the judgment debtor to file an appeal bond in order to stop the garnishment—the
appeal bond keeps the judgment creditor from enforcing the judgment, thereby stopping
the garnishment, but protects the judgment creditor if the judgment is affirmed. 48 Kan.
App. 2d at 16. So the Uhlmann court held that a judgment creditor who attempts to
enforce a judgment as a protective measure but doesn't actually collect any money hasn't
acquiesced to the judgement and can still appeal: "[A]cquiescence is not to be implied
from actions a party takes to protect its rights." 48 Kan. App. 2d at 17-18; cf. Ploog, 2016
WL 3659856, at *4 (paying court-ordered criminal fines and signing a probation order,
under threat of being held in contempt, does not constitute acquiescence because such
actions are not voluntary). But the Board doesn't argue that it paid Brummer's
unemployment benefits in order to protect its rights—it just says it made a mistake.
Nothing in Kansas caselaw suggests that acquiescence turns on the absence of mistake.

As the language quoted by the Board suggests, it's true that acquiescence, as an
implied waiver, should not be invoked too easily. But the facts here show simple and
straightforward acquiescence: the Board's payment to Brummer was wholly inconsistent
with its position on appeal. If the Board were to succeed on appeal, it would not owe
Brummer the unemployment benefits it has already paid her. See Varner, 254 Kan. at
495. Indeed, in that case, Brummer might have to pay back the unemployment benefits
she has received. See K.S.A. 2015 Supp. 44-719(d)(1). The Board, by paying Brummer,
has acquiesced to the district court's judgment. We therefore lack jurisdiction to hear its
appeal.

The appeal is dismissed for lack of jurisdiction.