CoreFirst Bank & Trust v. Tuckness

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NOT DESIGNATED FOR PUBLICATION

No. 116,985


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

COREFIRST BANK AND TRUST,
Appellee,

v.

JOHN T. TUCKNESS,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed February 2,
2018. Affirmed.

John T. Tuckness, appellant pro se.

R. Patrick Riordan, Erin A. Beckerman, and Andrew S. Mayo, of Riordan, Fincher, Sinclair &
Beckerman, PA, of Topeka, for appellee.

Before GREEN, P.J., MALONE and ATCHESON, JJ.

PER CURIAM: CoreFirst Bank and Trust sued John T. Tuckness for breach of his
credit card contract. Eventually, the trial court granted CoreFirst's motion for summary
judgment. Tuckness appeals the trial court's ruling, alleging several errors. Nevertheless,
as explained below, none of his allegations of error have merit. Therefore, we affirm the
trial court's summary judgment ruling.

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On October 31, 2014, CoreFirst filed a petition against Tuckness alleging that
Tuckness had breached his credit card contract. In its petition, CoreFirst asserted that it
was entitled to Tuckness' unpaid credit card balance totaling $8,062.57, plus interest and
fees. This case was assigned Shawnee County case No. 14 LM 14250.

Tuckness responded that CoreFirst's suit was barred under the doctrine of
collateral estoppel and res judicata because the trial court denied one of CoreFirst's
motions in a different lawsuit—Shawnee County case No. 14 LM 4198—brought by
CoreFirst against him. Based upon this argument, Tuckness requested that CoreFirst's suit
be dismissed.

Shawnee County case No. 14 LM 4198 concerned Tuckness' overdrawn checking
account at CoreFirst. The specific motion that the trial court denied in 14 LM 4198 was a
permissive joinder motion in which CoreFirst sought to amend its petition alleging that
Tuckness overdrew his checking account to additionally allege that he had breached his
credit card contract. The trial court denied that motion because it found that CoreFirst
"fail[ed] to state [under] which grounds the Court should grant [the] motion to amend"
and "fail[ed] to state any reason why [the] amendment would be just" as required by
K.S.A. 2016 Supp. 60-218 and K.S.A. 61-2903(c). Moreover, this court ultimately
affirmed the trial court's order in 14 LM 4198, requiring that Tuckness repay CoreFirst
the amount he had overdrawn from his checking account plus fees. See CoreFirst Bank
and Trust v. Tuckness, No. 113,984, 2016 WL 1399095 (Kan. App. 2016) (unpublished
opinion).

CoreFirst responded that the trial court must deny Tuckness' motion to dismiss
based upon the doctrines of collateral estoppel and res judicata in this case—14 LM
14250—because neither doctrine had been triggered by the trial court's denial of its
motion to amend in 14 LM 4198. The trial court agreed that it must deny Tuckness'
motion to dismiss in 14 LM 14250 because its denial of CoreFirst's motion to amend in
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14 LM 4198 did not create a final judgment on the merits as to CoreFirst's breach of
credit card contract claim in 14 LM 14250.

Tuckness then appealed the trial court's denial of his motion to dismiss to this
court, filing an interlocutory appeal. This court dismissed Tuckness' appeal for lack of
jurisdiction because the trial court's ruling did not determine CoreFirst's action against
him as required under K.S.A. 61-3901.

Nearly 11 months after this court dismissed Tuckness' interlocutory appeal,
CoreFirst moved for summary judgment. In its motion, CoreFirst stated that the following
were uncontroverted facts: (1) that it and Tuckness had an agreement where it would
extend Tuckness a line of credit, and "Tuckness agreed to repay to [it] all amounts
advanced, plus interests and fees"; (2) that it sent Tuckness monthly statements; (3) that
Tuckness failed to make the minimum monthly payments as required; (4) that it sent
Tuckness a notice of his right to cure default on November 28, 2011; and (5) that
Tuckness owed it $8,062.57, plus interest and fees. CoreFirst argued that it was entitled
to summary judgment because there was no material dispute as to any element of its
breach of contract claim. In support of its motion, CoreFirst attached the following: (1)
the sworn affidavit of its vice-president, in which the vice-president verified the
preceding information listed in its uncontroverted facts was true; (2) the credit card
statements it sent to Tuckness from September 2010 to September 2012, which showed
that Tuckness made his final minimum payment in June 2012; and (3) the notice of right
to cure default it sent to Tuckness.

Tuckness responded that the trial court should dismiss CoreFirst's case "for
exceeding the statutes of time limitations as per District Court Rule (D.C.R.) 3.213(6)."
D.C.R. 3.213(6) states that cases on file for 6 months "for which service has not been had
or on which judgment has not been taken . . . shall be dismissed 90 days thereafter unless
service has been obtained or judgment taken, as the case may be." Tuckness seemingly
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argued that because CoreFirst's case against him had been pending more than 90 days
before CoreFirst moved for summary judgment, its summary judgment motion and its
cause of action were time barred. Because his motion to dismiss in this case—14 LM
14250—relied on information from case No. 14 LM 4198, Tuckness attached an order
removing CoreFirst's case against him in 14 LM 4198 from the dismissal docket. Further,
Tuckness insinuated that the trial judges who were involved with his cases and
CoreFirst's attorneys were engaging in ex parte communications and fraud.

After this response, Tuckness filed another motion to dismiss. In this motion,
Tuckness argued that the trial court should deny CoreFirst's motion for summary
judgment because the statute of limitations to bring a contract claim under K.S.A. 60-512
had passed and because CoreFirst's motion was based upon "doctored" evidence.
Concerning the documents CoreFirst submitted to support its motion, Tuckness asserted
that the documents were "doctored" because his "credit card number [was] blacked out."
Tuckness also asserted that CoreFirst's records were "doctored" because a different credit
card number appeared in the memo section of a July 2009 cancelled check.

CoreFirst responded that Tuckness had "misconstrue[d] D.C.R. 3.213(6) as
imposing an affirmative deadline on [it]." It further responded that the statute of
limitations for its claim against Tuckness had not run when it filed its petition because the
three-year statute of limitations to bring its claim restarted when Tuckness made his
minimum payment in June 2012. CoreFirst argued that this meant that their October 31,
2014, petition was timely filed. CoreFirst next argued that it did not "doctor" any
evidence but instead merely redacted all but the last four digits of Tuckness' account
number in compliance with Kansas Supreme Court Rule 123 (2018 Kan. S. Ct. R. 198). It
further asserted that "the existence of a second account . . . [did] not negate the amounts
owed under the account in question, as shown by the uncontroverted account statements."
CoreFirst then alleged that because Tuckness' arguments were baseless, his request for
sanctions was baseless as well.
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The trial court ultimately rejected Tuckness' arguments and also granted
CoreFirst's motion for summary judgment. First, the trial court addressed Tuckness'
various arguments. Regarding Tuckness' statute of limitations arguments, the trial court
found that D.C.R. 3.213(6) does not create a statute of limitations and that CoreFirst's
petition was timely filed under K.S.A. 60-512's three-year statute of limitations given that
Tuckness made his final minimum payment to CoreFirst in June 2012. Regarding
Tuckness' assertions that CoreFirst had supported its summary judgment motion with
"doctored" evidence because his credit card number had been redacted, the trial court
found that Tuckness failed to explain how this argument was "material to the issues on
summary judgment."

Next, the trial court addressed the fact that Tuckness had not filed a response to
CoreFirst's summary judgment motion in which he stated whether each of CoreFirst's
factual contentions were controverted or uncontroverted as required by Supreme Court
Rule 141(b)(1) (2018 Kan. S. Ct. R. 205). Citing caselaw, the trial court found that
Tuckness' failure to comply with Rule 141(b)(1) resulted in those facts being
uncontroverted. Then, the court found that those uncontroverted facts supported granting
CoreFirst's summary judgment motion, explaining:

"CoreFirst has established each element necessary to prevail on its claim.
Tuckness opened a credit card account with CoreFirst. Pursuant to the parties' agreement,
CoreFirst agreed to extend credit to Tuckness and Tuckness agreed to repay to CoreFirst
all amounts advanced, plus interest and fees. Tuckness made charges to the account. He
was billed for the charges. Tuckness failed to make the minimum required monthly
payments. CoreFirst made demand for payment, sent Tuckness a notice of right to cure,
and Tuckness failed to pay."

Accordingly, the trial court entered summary judgment in favor of CoreFirst, ordering
that Tuckness pay CoreFirst $8,062.57, plus interest and fees.
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Did the Trial Court Err by Granting Summary Judgment?

As he did below, Tuckness argues that the trial court should not have granted
CoreFirst's motion for summary judgment. Although sometimes difficult to follow, it
seems that Tuckness has raised four distinct arguments on appeal.

First, Tuckness argues that the trial court erred when it failed to dismiss
CoreFirst's petition based upon collateral estoppel and res judicata for the same reasons
he argued below. That is, Tuckness argues that when the trial court denied CoreFirst's
motion to amend its petition in 14 LM 4198 to include a breach of credit card contract
claim, it was forever precluded from bringing that claim. CoreFirst contends that
Tuckness' argument is incorrect because the trial court's denial of its motion to amend
was not based upon the merits of its breach of credit card contract claim.

Whether the doctrines of collateral estoppel and res judicata apply are questions of
law over which this court has de novo review. Venters v. Sellers, 293 Kan. 87, 93, 261
P.3d 538 (2011); and Miller v. Glacier Development Co., 293 Kan. 665, 668, 270 P.3d
1065 (2011). Both collateral estoppel and res judicata require that the trial court make a
judgment on the merits of the claim currently being raised. See In re Tax Appeal of Fleet,
293 Kan. 768, 778, 272 P.3d 583 (2012); and Venters, 293 Kan. at 98. Here, the trial
court clearly stated that it was denying CoreFirst's motion to amend in 14 LM 4198
because its motion failed to comply with the statutory grounds to amend. Because the
denial of CoreFirst's motion to amend in 14 LM 4198 was not a final judgment on the
merits of CoreFirst's breach of credit card contract claim, Tuckness' argument that
CoreFirst was barred by collateral estoppel and res judicata from bringing its claim in this
case—14 LM 14250—is plainly incorrect.

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Second, Tuckness seemingly argues that the trial court erred when it failed to
dismiss CoreFirst's petition because it violated D.C.R. 3.213(6) and K.S.A. 60-512. Thus,
his argument involves interpreting statutes and court rules. Interpretation of statutes and
court rules are questions of law over which this court has unlimited review. See Neighbor
v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015); and Rinehart v. Morton
Building, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). Nevertheless, in his brief,
Tuckness never explains how CoreFirst violated D.C.R. 3.213(6) or K.S.A. 60-512. It is a
well-known rule of this court that an issue not briefed by the appellant or raised only
incidentally by the appellant is deemed abandoned. See Friedman v. Kansas State Bd. of
Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Very clearly, by not providing
any explanation or calculous on how CoreFirst violated these rules, Tuckness has
abandoned his arguments.

Yet, even if Tuckness had not abandoned his arguments, as CoreFirst notes in its
brief and the trial court noted below, D.C.R. 3.213(6) is merely a procedural rule on case
management. More importantly, Tuckness is complaining about a perceived violation of
D.C.R. 3.213(6) stemming from an order the trial court filed removing CoreFirst's case
from the dismissal docket in 14 LM 4198, not in this case. In a nutshell, Tuckness'
complaints about perceived wrongdoings that occurred in 14 LM 4198 should have been
raised in his direct appeal in that case. This court lacks jurisdiction to consider arguments
that should have been raised in a prior appeal. See K.S.A. 60-2101, et seq. Regarding
K.S.A. 60-512's three-year statute of limitations, because K.S.A. 60-250(a) provides that
partial payment restarts the three-year statute of limitations, the statute of limitations in
this case restarted when Tuckness made his final minimum payment toward his credit
card debt in June 2012. Thus, CoreFirst's October 31, 2014 petition, which alleged a
breach of credit card contract, was timely filed because it had until June 2015 to file its
petition.

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Third, Tuckness seemingly argues that CoreFirst's petition should have been
dismissed because the judges who presided over his cases treated him unfairly. Tuckness
states that the trial court helped CoreFirst's attorneys on different occasions; concerning
unfair treatment in 14 LM 4198, he specifically points to the trial court stating it would
reconsider CoreFirst's attorney's motion to amend if she rewrote the motion and when it
removed the case from the dismissal list. Tuckness perceives this as an abuse of power.
He also alleges that the trial court's actions constituted violations of the Fourth, Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution as well as 18 U.S.C.
§ 241 (2012)—conspiracy against right and 18 U.S.C. § 371 (2012)—conspiracy to
commit fraud against the United States.

Yet, the alleged abuses of judicial power that Tuckness references occurred in 14
LM 4198. As already addressed, this court lacks jurisdiction to consider Tuckness'
complaints about the alleged abuses of judicial power in 14 LM 4198. This court further
lacks jurisdiction to the extent Tuckness is arguing this court should find the trial court in
violation of the federal criminal laws. Moreover, to the extent this court has jurisdiction,
i.e., to the extent Tuckness is challenging the trial court's actions in this case, nothing in
the record on appeal shows that the trial court treated Tuckness unfairly. Indeed, the trial
court even granted Tuckness' motion for an extension of time to respond to CoreFirst's
summary judgment motion, even after Tuckness had already filed one response to
CoreFirst's summary judgment motion.

Fourth, Tuckness argues that the trial court erred by basing its summary judgment
ruling on CoreFirst's "doctored" evidence. Tuckness' argument appears to have two parts:
(1) that the trial court relied on exhibits CoreFirst admitted in which CoreFirst had
redacted all but the last four digits of his account number; and (2) that the trial court did
not place enough emphasis on the fact another credit card number appeared in the memo
section of one of his July 2009 cancelled checks. As to this last argument, it seems that
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Tuckness believes the existence of another credit card number in the memo section of this
cancelled check is evidence that CoreFirst was altering exhibits.

Summary judgment is appropriate when there is no material dispute of fact.
Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016).
Thus, to successfully oppose a motion for summary judgment, a party must come forward
with evidence establishing that a material fact is in dispute. 305 Kan. at 24. Appellate
courts review the trial court's findings regarding disputed material facts using the
following standard: If "reasonable minds could differ as to the conclusions drawn from
the evidence, summary judgment must be denied." 305 Kan. at 24. Nevertheless, when no
material facts are in dispute, and the parties' arguments turn on questions of law,
appellate courts exercise de novo review. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d
625 (2013).

Here, Tuckness' arguments are meritless. CoreFirst's exhibits were in no way
unreliable simply because CoreFirst redacted all but the last four digits of Tuckness'
account number. Indeed, by doing this, CoreFirst was complying with Supreme Court
Rule 123(b)(3) (2018 Kan. S. Ct. R. 198), which states: "If a financial account number is
relevant, only the last four digits of the number should be used." His argument about
another credit card number being in the memo section of a cancelled check constituting
evidence of CoreFirst "doctoring" evidence is illogical. Furthermore, it is conclusory, and
conclusory contentions do not warrant this court's consideration on appeal. See RAMA
Operating Co. v. Barker, 47 Kan. App. 2d 1020, 1036, 286 P.3d 1138 (2012).

As a result, Tuckness' only argument challenging the facts the trial court relied
upon to make its summary judgment ruling does not undermine that ruling. Further, it is
important to emphasize that Tuckness has never denied that he had a credit card contract
with CoreFirst or that he placed the charges on his credit card, resulting in his debt.

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To establish breach of a contract there must be "(1) the existence of a contract
between the parties; (2) sufficient consideration to support the contract; (3) the plaintiff's
performance or willingness to perform in compliance with the contract; (4) the
defendant's breach of the contract; and (5) damages to the plaintiff caused by the breach."
Stechschulte v. Jennings, 297 Kan. 2, 23, 298 P.3d 1083 (2013). Simply put, in this case,
none of those facts are in dispute because (1) Tuckness never timely controverted
CoreFirst's statement of uncontroverted facts and (2) the uncontroverted facts were
supported by CoreFirst's exhibits. Consequently, the trial court did not err when it granted
summary judgment in favor of CoreFirst on its breach of credit card contract claim. As a
result, we affirm the trial court's summary judgment ruling.

Affirmed.