Cox v. Community State Bank

1
NOT DESIGNATED FOR PUBLICATION
No. 119,375
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DON and REBA COX, and
ROBERT E. COX,
Appellants,

v.

COMMUNITY STATE BANK,
Appellee.



MEMORANDUM OPINION


Appeal from Montgomery District Court; JEFFREY D. GOSSARD, judge. Opinion filed July 12,

2019. Affirmed.



Stephen P. Weir, of Stephen P. Weir, P.A., of Topeka, for appellants.



M. Doug Bell, of Hall, Levy, DeVore, Bell, Ott & Kritz, of Coffeyville, for appellee.



Before MALONE, P.J., SCHROEDER, J., and MCANANY, S.J.



PER CURIAM: Banks expect to be repaid on their loans. Robert Cox, Don Cox, and
Reba Cox each obtained multiple commercial loans from the Community State Bank
(formerly Condon Bank) (Bank). Don and Reba are Robert's parents. Robert, Don, and
Reba initiated this litigation claiming, among other things, Bank acted negligently
because it misapplied payments to their various commercial loan accounts. Bank filed a
counterclaim against Robert, Don, and Reba claiming each failed to timely pay or
otherwise comply with the terms of their notes, mortgages, and security agreements with
Bank. Bank moved for summary judgment on its counterclaims, but Robert, Don, and
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Reba failed to respond. The district court granted Bank's summary judgment motion on

its counterclaims for judgment on the various commercial notes and for foreclosure of the
mortgages and security agreements. Robert, Don, and Reba moved to alter or amend the
summary judgment order, alleging excusable neglect in their failure to timely respond. The
district court denied their request, finding no excusable neglect. Bank then moved for
summary judgment on the claims Robert, Don, and Reba raised against Bank. Although
Robert, Don, and Reba timely opposed the motions, the district court granted summary
judgment in favor of Bank, finding no genuine issues remained. Robert, Don, and Reba
now argue the district court erred in granting the first summary judgment, denying their
request to amend that judgment, and granting the second summary judgment. Robert,
Don, and Reba's cases have been consolidated on appeal.



FACTS


Robert's loans



Robert's relationship with Bank was extensive, and he entered into the following
commercial notes, mortgages, and security agreements:


• A 2008 commercial note and mortgage for $21,920 on Robert's property in
Coffeyville, Kansas. The mortgage contained a cross-collateralization clause
securing any previous and future obligations.
• A 2010 security agreement granting Bank a security interest in all of Robert's
inventory, equipment, and accounts, including any property he acquired after the
agreement.
• A 2010 commercial note to buy a 2010 Dodge pickup listing the pickup as
collateral.
• A 2011 commercial note for $12,987.18, with Robert's pickup, 2010 security
agreement, and mortgage as collateral.
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• Another 2011 commercial note for $8,117.75, with Robert's 2011 PJ 40-foot flat
deck trailer as collateral.
• A 2011 security agreement granting Bank a security interest in the trailer and a
cross-collateralization clause securing all previous and future obligations.


All of Robert's agreements contain similar language. Under the four promissory
notes and cross-collateralization agreements, default by Robert on one loan allowed Bank
to call all the notes due and payable. In the event of Robert's default, the notes, mortgage,
and security agreements provided Bank with several remedies. First, Bank could declare
the entire unpaid balance immediately due. Next, Bank could request judicial foreclosure
of the mortgaged property and sell it. Third, Bank could repossess the collateral listed in
the security agreements and sell it. Finally, Bank could set-off any of Robert's loans or
his security agreements with other payments Bank received from him.



In 2011, Robert fell behind on paying Bank, missing multiple payments. In 2013,
Bank repossessed the pickup and trailer. Bank eventually sold the pickup to pay off the
first 2010 commercial note.


Don and Reba's loans



Don and Reba agreed to at least seven commercial loans with Bank, but the parties
did not include all of those agreements in the record on appeal. The appellate record
includes the following notes and security interests Don and Reba made with Bank:


• A 2009 commercial loan to Don for livestock and a signed security agreement
providing Bank with a security interest in Don's inventory, equipment, and
livestock.
• An April 2010 loan to Don for $55,029.63 with Don's 2009 security agreement as
collateral.
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• An April 2010 loan to Don for $13,610.43 to purchase a car listing the car as
collateral.
• An August 2010 loan to Don and Reba for $115,946.68. Don and Reba gave Bank
a mortgage on their property and a security agreement granting Bank a security
interest in a 2010 Dodge 3500 diesel pickup, farm products, livestock, farm
equipment, and all after-acquired property. The loan was also secured by Don's
2009 security agreement.

• A 2014 workout agreement between Don and Bank to resolve several outstanding
loan-related issues. The specifics of the agreement are not necessary for us to
resolve the issues of this appeal. However, the parties specifically agreed their
other notes and security agreements would take precedence if they conflicted with
their new agreement.


The security agreements, commercial loans, and mortgage all contained similar
language. Under those agreements, default by Don and Reba on one loan allowed Bank to
call all the notes due and payable. The mortgage required Don and Reba to maintain
insurance and pay their property taxes when due. The agreements also gave Bank the
same default remedies against Don and Reba that Bank had against Robert. All of Don
and Reba's security agreements and the mortgage contained cross-collateralization
clauses securing any after-acquired property and all other amounts now or in the future
owed by Don and Reba to Bank.


Bank repossessed the 2011 PJ trailer and in the process damaged Don and Reba's
gate, so they sued Bank.
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Robert's suit



Robert filed a pro se lawsuit against Bank, but the district court ordered Robert to
make a more definite statement. Robert hired counsel, who filed an amended petition.
Robert alleged he made multiple payments and Bank misapplied those payments to real
estate taxes, his "operating loan," or even the wrong note. According to Robert, Bank's
actions resulted in Robert's default and Bank repossessed his pickup without proper
notice. Robert claimed Bank was liable for negligence and for failing to provide a notice
of consumer right to cure under K.S.A. 16a-5-110.


Bank filed an answer denying Robert's claims and alleging counterclaims against
him. According to Bank, Robert defaulted on his 2011 loans listing his pickup and trailer
as collateral because he did not timely pay. His default on his 2011 loans caused Robert
to default on the 2008 mortgage loan. Based on Robert's alleged defaults, Bank claimed it
was entitled to collect all balances owed, foreclose on the 2008 mortgage, and seize the
collateral in the security agreements. Bank also argued it was entitled to costs and
attorney fees as described in the agreements.



Robert's counsel withdrew, so Don filed an answer to Bank's counterclaims on
Robert's behalf, but Robert did not sign it. Robert's answer denied he made late payments
on the 2011 loan secured by his pickup and again claimed Bank misapplied his payments
to the wrong note. Robert also alleged he was current on the 2008 mortgage and
promissory note, but those agreements were not connected to any other obligation with
Bank. Robert claimed he paid his 2010 pickup loan in full. He failed to mention the 2011
security agreement listing the trailer as collateral.
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Don and Reba's suit



Don and Reba first filed a pro se petition for conversion against Bank, but the
district court ordered Don and Reba to provide a more definite statement. They hired an
attorney who prepared their first amended petition.


According to their petition, Don and Reba had a right to recover against Bank for
negligence, breach of contract, two violations of Kansas consumer notice requirements
under K.S.A. 16a-5-110, and trespass to chattel.


They alleged Bank committed negligence in two respects. First, Don and Reba
alleged in 2012 Don delivered a check for $38,010.29 from the proceeds of the sale of the
livestock secured in their 2010 security agreement. Don also delivered $10,000 in cash
for Bank to apply to other loans. They claimed they owed $27,000 for their livestock loan,
but Bank failed to apply the check to the proper loan. Next, Don and Reba alleged Bank
took several of their payments and applied those to Robert's loans. Based on Bank's
misapplication of these payments, Don and Reba claimed they became delinquent in their
own loans.


For their breach of contract claim, Don and Reba alleged Bank forced them to
purchase insurance on their mortgaged property. They claimed the mortgage and
promissory note did not require they purchase insurance to cover the house.


Don and Reba also claimed in June 2013 bank employees repossessed a 2011 PJ
trailer and a Lincoln car without providing a consumer notice under K.S.A. 16a-5-110.
During the repossession, Don and Reba alleged bank employees entered their land, broke
the gate, and had no security interest in the 2011 PJ trailer. Accordingly, they raised a
claim against Bank for trespass to chattel.
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As a result of repossessing the trailer, Don and Reba alleged Reba was unable to
operate her business. Don and Reba also claimed they paid all of their loans in full, but
Bank refused to release its lien on their Kenworth truck and trailer.


It would appear Bank filed an answer and counterclaims, but the parties did not
include those documents in the appellate record. However, the record reflects Don filed a
pro se answer to Bank's counterclaims. Don's answer alleged Bank never applied the
$38,010.29 from the proceeds of the sale of the livestock or the $10,000 in cash to his
mortgage or to the payment "that was due on the day [he] presented the check to the
bank." He admitted he signed an agreement with Bank in September 2014 but claimed he
signed it under "extreme duress." He also claimed he did not represent Reba or her
company, C&C Transports, when he signed the 2014 agreement. He claimed Bank had
no claim to the 2011 PJ trailer. He claimed his 2011 loan was to purchase a 2005

Kenworth truck and a 2006 Fontaine trailer. Don believed he paid off the vehicle loans
and claimed Bank would not release the lien or sign an insurance check after the
Kenworth truck was involved in a wreck. Accordingly, Don argued Bank shut down his
business. Don argued his mortgage was current and Bank had misapplied over $11,000 in
principal payments.


Motions for summary judgment



First summary judgment against Robert, Don, and Reba


In April 2016, Bank moved for summary judgment on its counterclaims against
Robert. Bank included a supporting affidavit and other documents. Bank argued Robert's
answer was procedurally defective because neither Robert nor an attorney of record had
signed it. Next, Bank argued it was entitled to summary judgment because Robert failed
to controvert Bank's claims in his answer.
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Bank also moved for summary judgment on its counterclaims against Don and
Reba. Bank explained it applied Don's check for the sale of livestock to seven of his past
due accounts. Bank argued it had a right to do so because the security interest securing
the livestock also secured Bank's future advances to Don. Bank alleged Don and Reba
defaulted on their mortgage because they failed to insure the property and pay real estate
taxes. Bank also claimed Don and Reba defaulted on their August 2010 loan because they
still owed for that loan and a default on the mortgage was a default on all agreements.


Bank timely served Robert, Don, and Reba, but they failed to respond to Bank's
motions for summary judgment. Thirty days after Bank moved for summary judgment,
the district court granted it. The district court adopted all the uncontroverted facts set out
by Bank and allowed foreclosure of the mortgages, trailer, and all inventory, equipment,
and accounts under the mortgages and security agreements.


Nearly two weeks later, Don filed motions in each case for an extension of time in
both cases "while we acquire an attorney for the purpose of agreeing on a case
management order with the [defendants'] attorney."


After hiring counsel, Robert, Don, and Reba moved to alter or amend the summary
judgments. Robert claims he had been out of town working and never received a copy of
the motion. Don and Reba also explained they were out of state working when Bank
moved for summary judgment and the court granted the motion. They each argued they
were entitled to an extension for time to respond under K.S.A. 2018 Supp. 60-256(f) and
K.S.A. 2018 Supp. 60-260(b) for excusable neglect. They also claimed the court's order
was defective for failing to state findings of facts and conclusions of law.


The district court denied Robert, Don, and Reba's request, finding they were pro se
litigants when each was properly served with Bank's motions for summary judgment. The
district court also found Robert, Don, and Reba failed to respond because they were
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traveling for work and failed to monitor their mail. The district court noted it was
foreseeable they would receive correspondence about the case while traveling. The court
found it had incorporated all the uncontroverted facts in Bank's summary judgment
motions and its conclusions of law were adequate.


Second summary judgment against Robert


Bank moved for summary judgment against Robert's claims, alleging there were

no genuine issue of material facts. Bank attached copies of Robert's financial agreements.
Bank argued Robert could not recover on his negligence claim because the court had
found Robert in default in its previous summary judgment order. Bank restated the
following uncontroverted facts from that order:


• Robert defaulted on the 2011 loans for the pickup and trailer because he did
not timely pay them;
• Robert defaulted on the 2008 loan for failing to timely pay his 2011 loans;

and

• Robert gave Bank a mortgage and security interest in his business
inventory, equipment, accounts, and trailer.


Bank argued it could apply the proceeds from the sale of the pickup to any loan it
chose based on Robert's signed agreements and Ram Co. v. Estate of Kobbeman, 236
Kan. 751, 756, 696 P.2d 936 (1985).



Bank also argued Robert could not recover for his claim of a consumer notice
violation under K.S.A. 16a-5-110 since the pickup loan was for Robert's business, not his
personal use. Bank attached a copy of the disbursement request Robert signed which
acknowledged Robert's 2010 promissory note was for a business purchase.
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Robert filed a pro se "motion to deny summary judgment." In it, Robert argued he
had no previous opportunity to present his claims to the court. He claimed the court could
resolve his claims with witnesses and documents he would provide later, and there were
"many reasons" Bank's motion for summary judgment should be denied.


Robert then tried to challenge the uncontroverted facts the district court adopted in
its previous summary judgment order. He admitted the copies of the agreements Bank
submitted to the court were correct, but Robert denied the underlying circumstances
about the alleged defaults.



To support his facts, Robert attached Bank transactions for the 2008 loan, the 2010
pickup loan, and the 2011 loans secured by the pickup and trailer loan. These documents
showed Robert made late payments for nearly two years on his 2010 and 2011 loans. By
the end of June 2013, Robert owed two payments on the 2010 pickup loan, over three
payments on one of his 2011 loans, and one payment on his other 2011 loan.


The district court granted Bank summary judgment against Robert's negligence and
consumer notice claims. The district court found Robert was not entitled to recover for his
negligence claim against Bank. The district court noted proceeds from the sale of the
pickup were applied to more than one loan. Upon sale of collateral, the district court
determined Bank had authority to apply those payments to any of the loans. Additionally,
the district court noted the previous uncontroverted facts established Robert's loans were
in default and default on one note established default on all of Robert's loans.


The district court also found Robert could not recover under K.S.A. 16a-5-110
because the statute controls consumer loans and Robert's loans were for his business.
Given these facts, the court found there was no genuine issue remaining and summary
judgment against Robert was appropriate.
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Second summary judgment against Don and Reba


Bank moved for summary judgment against Don and Reba. However, the parties
failed to submit a full copy of Bank's motion, memorandum, and exhibits in the appellate
record. Instead, the parties included only some of Don and Reba's loan agreements in the
record.


Don and Reba responded to Bank's motion, raising the same arguments lodged in
their petition and answer to Bank's counterclaims. They also claimed the 2011 PJ trailer
belonged to Reba and was not secured by any agreement signed by her. They agreed
Bank provided a replacement gate for the gate damaged at the time of repossession, but
Don and Reba claimed the gate was "cheap" and never installed it. Don and Reba claimed
Bank recently generated a consumer right to cure letter under K.S.A. 16a-5-110, but the
letter was not timely and did not comply with the statutory requirements.


The district court granted Bank summary judgment against Don and Reba's claims.
The district court applied the uncontroverted facts from the first summary judgment order
to support this summary judgment order.


The district court also found there were no facts to support Don and Reba's claims
of negligence because it had ruled Bank properly applied Don and Reba's payments to
their loans. The district court did not address whether Bank misapplied some of Don and
Reba's payments to Robert's accounts. The district court found no breach of contract
because Bank did not improperly force Don and Reba to purchase insurance on real estate
or misapply mortgage payments. The district court noted they agreed in the 2010
mortgage to provide insurance for the real estate, but Don and Reba failed to keep the
property insured and timely pay their real estate taxes. Based on their agreement, the
district court found either event resulted in default. Accepting the affidavit from Bank's
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vice president, the district court found Bank had already resolved Don and Reba's
trespass to chattels claim by paying to replace Don and Reba's gate.


The district court also ruled Don and Reba were not entitled to recover under
K.S.A. 16a-5-110 because they purchased their 2011 trailer with a business loan, not a
consumer loan. The district court also found Bank sent a consumer right to cure notice to
Don and Reba for the 2006 Lincoln Towncar. Finally, the district court found Bank had
the right to repossess the 2011 PJ trailer because Don and Reba agreed to provide it as
collateral in the August 2010 security agreement. The agreement provided all future
acquired property became secured collateral for their loans.


ANALYSIS


Bank claims Don, Reba, and Robert are barred from appealing the district court's
first summary judgment order because their notice of appeal includes no reference for
that order.


The right to appeal is entirely statutory and is not a right contained in the United
States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts
have jurisdiction to entertain an appeal only if the appeal is taken within the time
limitations and in the manner prescribed by the applicable statutes. Wiechman v.
Huddleston, 304 Kan. 80, Syl. ¶ 1, 370 P.3d 1194 (2016).


The notice of appeal must specify the parties taking the appeal, designate the
judgment or part thereof appealed from, and name of the appellate court to which the
appeal is taken. K.S.A. 2018 Supp. 60-2103(b). See Walker v. Regehr, 41 Kan. App. 2d
352, 354, 202 P.3d 712 (2009). The appellate courts should liberally construe K.S.A.

2018 Supp. 60-2103(b) to assure justice in every proceeding. 41 Kan. App. 2d at 355-56.
13
Here, the notices of appeal were filed pro se by Robert, Don, and Reba. Their
notices explain they are appealing the judgment entered on April 2, 2018, when the
district court granted the second summary judgment for Bank. When the district court
issued this summary judgment, it primarily relied on the first summary judgment.
Liberally construing K.S.A. 2018 Supp. 60-2103(b) to assure justice in this proceeding,
we find the notice of appeal is sufficient. See Fuller v. State, 303 Kan. 478, 492, 363 P.3d

373 (2015).



The district court did not err in granting Bank summary judgment on its counterclaims
against Robert, Don, and Reba.


Robert alleges the district court erred in granting the first summary judgment
against him. Robert claims Bank's uncontroverted facts could not support its
counterclaims against him and his answer controverted Bank's facts. His arguments lack
merit.


Don and Reba also argue the district court erred in granting Bank summary
judgment on its counterclaims. Much like Robert, Don and Reba argue Bank's
uncontroverted facts could not support its counterclaims. They also argue Don's answer
controverted Bank's facts. These arguments also lack merit.


"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
14
must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan.

616, 621, 413 P.3d 432 (2018).



"'[T]he only effect of a non-movant's failure to respond to a motion for summary
judgment is that it constitutes an admission . . . that there are no disputed issues of
genuine fact warranting a trial; it does not constitute a waiver by the non-moving party of
all legal arguments based upon those undisputed facts.' [Citations omitted.]" Lumry v.
State, 305 Kan. 545, 566, 385 P.3d 479 (2016).


When Bank moved for summary judgment on its counterclaims, it relied on two
forms of evidence—the affidavit from its vice president and copies of Robert, Don, and
Reba's agreements with Bank. Bank's vice president confirmed Robert, Don, and Reba
still owed a balance on their various loans. The vice president explained Bank disposed
of some of Robert's collateral and after Bank applied the proceeds, Robert still owed on
his remaining loans. Bank could demand full payment of Robert's loans at any time under
the terms of the commercial loans and security agreements because Robert defaulted on
his loans. As to Don and Reba's loans, the affidavit from the vice president and loan
documents showed Don and Reba were in default on some, if not all, of their notes for
missed payments.


The commercial loan documents, including the security agreements, provided a
default on one loan could be considered a default on all loans allowing Bank to foreclose
all notes, security agreements, and mortgages, seize the collateral, and sell it.


There was no genuine issue of material facts, and the district court did not err in
granting Bank summary judgment on its counterclaims against Robert, Don, and Reba.
Robert, Don, and Reba had the burden to present evidence to the district court to dispute
Bank's facts. See Patterson, 307 Kan. at 621. Robert, Don, and Reba provided no
evidence to dispute Bank's material facts. They did not respond to Bank's summary
judgment motion, and their initial answers to the counterclaims failed to controvert the
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motion for summary judgment. Additionally, Robert did not sign his answer. By failing
to respond to Bank's material facts, Robert, Don, and Reba admitted to them. There was
no genuine issue to preclude summary judgment. See Lumry, 305 Kan. at 566.


The district court did not err in denying Robert, Don, and Reba's motion to alter or
amend the first summary judgment.


Robert, Don, and Reba contend the district court erred in denying their motion to
alter or amend the first summary judgment against them. They argue they were entitled to
relief either under K.S.A. 2018 Supp. 60-256(f), K.S.A. 2018 Supp. 60-260(b), or
because the district court's summary judgment order was allegedly insufficient. Although
it is less than clear from their appellate brief, it appears Robert, Don, and Reba intend to
argue the district court erred as an abuse of discretion. See First Nat'l Bank in Belleville
v. Sankey Motors, Inc., 41 Kan. App. 2d 629, 634, 204 P.3d 1167 (2009) (the district
court's decision whether to set aside a default judgment will be disturbed only on appeal
upon a showing of abuse of discretion); see also Morton County Hospital v. Howell, 51
Kan. App. 2d 1103, 1112, 361 P.3d 515 (2015) (a district court's denial of a K.S.A. 2014

Supp. 60-260(b) motion is reviewed for abuse of discretion). A judicial action constitutes
an abuse of discretion if (1) no reasonable person would take the view adopted by the
trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).


No relief under K.S.A. 2018 Supp. 60-256(f)


Robert, Don, and Reba appear to argue the district court erred as a matter of law
when it denied their request to alter or amend the first summary judgment under K.S.A.
2018 Supp. 60-256(f). Their argument raises a question of statutory interpretation, a
question of law over which appellate courts have unlimited review. Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule of
statutory construction is that the intent of the Legislature governs if that intent can be
16
ascertained. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282
(2016). An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. Ullery v. Othick, 304 Kan. 405, 409,
372 P.3d 1135 (2016).



K.S.A. 2018 Supp. 60-256(a) allows a party claiming relief to move for summary
judgment. To oppose this motion, the nonmovant must respond within 21 days after the
motion is served. K.S.A. 2018 Supp. 60-256(c)(1)(B). If a party opposing a motion shows
by affidavit that it cannot present facts essential to justify the motion's opposition, the
district court may deny the motion for summary judgment; order a continuance to enable
affidavits or declarations to be obtained, depositions to be taken or other discovery to be
undertaken; or issue any other just order. K.S.A. 2018 Supp. 60-256(f)(1)-(3).


Applying the record to the plain language of K.S.A. 2018 Supp. 60-256(f) shows
Robert, Don, and Reba are not entitled to relief because they never opposed Bank's
motions for summary judgment before the district court granted them. Under K.S.A. 2018
Supp. 60-256(c)(1)(B), Robert, Don, and Reba had 21 days to respond to Bank's motions.
If they were unable to present facts essential to justify opposing Bank's motions, they
should have requested relief under K.S.A. 2018 Supp. 60-256(f) before their 21 days
expired. They failed to do so because they were representing themselves, out of town,
and not checking their mail. Bank's uncontroverted facts in its summary judgment

motions became admitted facts because Robert, Don, and Reba failed to timely controvert
the facts within 21 days after the summary judgment motions were filed. See Lumry, 305
Kan. at 566. To allow Robert, Don, and Reba to obtain relief after the district court
granted summary judgment goes against the plain language of K.S.A. 2018 Supp. 60-256
17
and reads words not readily found within the statute—something this court cannot do.

Ullery, 304 Kan. at 409.



No relief for excusable neglect under K.S.A. 2018 Supp. 60-260(b)


Robert, Don, and Reba next argue the district court should have granted relief from
the judgment because of excusable neglect—they were working out of town when Bank
served them with its motion for summary judgment. To support this argument, Robert,
Don, and Reba cite Montoy v. State, 275 Kan. 145, 155, 62 P.3d 228 (2003). This case
does not apply because none of the parties in Montoy moved for summary judgment and
the district court granted summary judgment sua sponte. 275 Kan. at 147, 151. Robert,
Don, and Reba also rely on Green v. Kaesler-Allen Lumber Co., 197 Kan. 788,
791, 420 P.2d 1019 (1966). But the plaintiffs in Green engaged in deposition testimony
and that testimony provided a genuine issue of material facts. 197 Kan. at 791. Robert,
Don, and Reba provided no evidence or testimony to create a genuine issue of material
fact before the district court granted Bank summary judgment on its counterclaims.


Most Kansas cases addressing excusable neglect under K.S.A. 2018 Supp. 60-

260(b) do so when the district court granted default judgment against a party, not
summary judgment. See, e.g., First Management v. Topeka Investment Group, LLC, 47
Kan. App. 2d 233, 240, 277 P.3d 1150 (2012). Even so, excusable neglect is grounds for
relief from either default or summary judgment. K.S.A. 2018 Supp. 60-260(b). Excusable
neglect has no clear definition and must be determined on a case-by-case basis. Jenkins v.
Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). In default judgment cases, excusable
neglect exists when a party to the suit is not responsible for a failure to reply to the
petition or counterclaim. See Montez v. Tonkawa Village Apartments, 215 Kan. 59, 64,
523 P.2d 351 (1974). In Montez, the defendant company's apartment manager misplaced a
copy of the initial pleadings served on him. No one else knew of the lawsuit. When the
defendants learned about the suit, they moved to set aside the default judgment within 12
18
days. Additionally, Montez could show no prejudice to her if the judgment was set aside,
other than having to prove her case. Based on those facts, the Kansas Supreme Court
found the defendants established excusable neglect. 215 Kan. at 65.


The same cannot be said here. Robert, Don, and Reba initiated their suit against
Bank and Bank lodged counterclaims against them. Robert, Don, and Reba knew of
Bank's counterclaims because they filed answers responding to Bank's claims. Robert,
Don, and Reba promptly moved to set aside the summary judgment against them, but the
fault for summary judgment was only their own. Robert, Don, and Reba were traveling
for several weeks for work and did not check their mail to monitor the litigation. As pro
se litigants, Robert, Don, and Reba were responsible for meeting the 21-day response
deadline set out in K.S.A. 2018 Supp. 60-256(c)(1)(B), and they fail to show how their
neglect was excusable. They were actively involved in the litigation and should have
anticipated Bank would file motions for summary judgment, but they neglected their
mail. Based on the factors in Montez, Robert, Don, and Reba are not entitled to relief for
excusable neglect. 215 Kan. at 65.


The district court's summary judgment formatting errors are harmless.


Robert, Don, and Reba claim the district court erred in denying their motion to
alter or amend the judgment because the first summary judgment order does not comply
with Supreme Court Rule 141 (2019 Kan. S. Ct. R. 211) and 165 (2019 Kan. S. Ct. R.
221). Under K.S.A. 2018 Supp. 60-252(a), the district court must find the facts specially
and state its conclusions of law separately when it enters an order of summary judgment.
Rule 141(g) and 165(a) adopt the same requirements.


Here, the district court explained it adopted the uncontroverted facts in each of
Bank's motions for summary judgment. It also provided no subsection detailing its
conclusions of law, other than granting judgment against Robert, Don, and Reba in favor
19
of all of Bank's counterclaims. Even so, the district court's error was harmless. Robert,
Don, and Reba never provided evidence to dispute Bank's factual claims. As a result,
both of the district court's summary judgment orders adopted all of Bank's alleged facts.
Given this adoption, the district court held as a matter of law Robert, Don, and Reba
defaulted on their loans; Bank could recover for what Robert, Don, and Reba owed Bank;
Bank could foreclose on the mortgages; and Bank could sell the collateral listed in each
of the security agreements and any after-acquired property. Although the court's order
could have more detail, this error is harmless.


The second summary judgment order against Robert was properly granted.


Robert claims the second summary judgment motion should have been denied.
The rules governing summary judgment motions have been previously stated and we see
no reason to repeat them.


Robert's reply to the second motion for summary judgment provided no contested
facts to support his claims for negligence or a violation of the notice requirements for a
consumer's right to cure.


Robert's negligence claim lacks support.


According to Robert, Bank is liable to him for negligence because it did not apply
his $1,300 payment and another payment to the 2010 truck loan. Robert's alleged facts do
not support denial of summary judgment because his evidence disputes no material fact.
Bank's error in applying his loan payments did not cause Robert to default.


Robert is correct that Bank should have applied his March 2013 payments to the

2010 truck loan. See Ram Co., 236 Kan. at 756 (finding voluntary payments made by a
debtor must be applied as the debtor directs unless those payments are proceeds of the
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sale of collateral). Even so, this is not a material issue to prevent Bank from foreclosing
his loans and repossessing the property.


Robert caused Bank to repossess the property because he failed to pay his
obligations on time. His default on any one loan was a default on every other loan.
Robert's pickup, trailer, equipment, inventory, and accounts were collateral Bank could
sell based on Robert's security agreements. Bank could also declare the entire unpaid
balance immediately due on all the loans and request judicial foreclosure of the
mortgaged property. Even the evidence Robert submitted supported he was in default on
his loans. The district court did not err in granting summary judgment against Robert's
claim of negligence because there was no material factual dispute at issue.


Robert was not entitled to a consumer notice.


The district court also did not err in granting summary judgment against Robert's
consumer notice claim. Robert agreed to business loans. K.S.A. 16a-5-110 governs notice
requirements for consumers who fail to make required payments in a consumer credit
transaction. A consumer credit transaction is a loan obtained primarily for personal,
family, or household purposes. See K.S.A. 16a-1-301(15), (17). Based on Robert's
agreements, he was not entitled to a consumer notice under K.S.A. 16a-5-110 since he
obtained commercial loans for his business. There was no genuine dispute of material
facts, and the district court correctly granted summary judgment on this claim.


The second summary judgment order against Don and Reba was properly granted.


Don and Reba claim the district court should have denied the second summary
judgment motion. The rules governing motions for summary judgment have been
previously stated and we see no reason to repeat them here.
21
The admitted facts from the first summary judgment order can be used to support
the second summary judgment order.


Don and Reba argue the district court erred in granting the second summary
judgment when the district court applied its findings from the first summary judgment.
According to Don and Reba, the district court could not apply its findings in the first
summary judgment order because the order does not meet collateral estoppel.


Whether collateral estoppel (issue preclusion) applies is a question of law subject
to de novo review. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012).
Collateral estoppel requires: (1) a prior judgment on the merits arising from the same
factual circumstances and determining the rights and liabilities of the parties, (2) the
parties must be the same, or in privity, and (3) the issue litigated must have been
determined and necessary to support the judgment. 293 Kan. at 778.


Don and Reba's only challenge to collateral estoppel is their claim the court's first
summary judgment order is not a final order under K.S.A. 2018 Supp. 60-254(b). They
raise a question of statutory interpretation, a question of law over which appellate courts
have unlimited review. Neighbor, 301 Kan. at 918. The most fundamental rule of
statutory construction is that the intent of the Legislature governs if that intent can be
ascertained. State ex rel. Schmidt, 303 Kan. at 659. An appellate court must first attempt
to ascertain legislative intent through the statutory language enacted, giving common
words their ordinary meanings. When a statute is plain and unambiguous, an appellate
court should not speculate about the legislative intent behind that clear language, and it
should refrain from reading something into the statute that is not readily found in its
words. Ullery, 304 Kan. at 409.


To support their claim, Don and Reba cite Vallejo v. BNSF Railway Company, 46

Kan. App. 2d 498, 504, 263 P.3d 208 (2011). In Vallejo, another panel of this court found
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a partial summary judgment was not a final judgment based on the language in K.S.A.

60-254(b). But that panel cited an older version of the statute, noting the statute allowed
"the court to direct the entry of a final judgment as to one or more but fewer than all of
the claims or parties only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment." (Emphasis added.) 46
Kan. App. 2d at 504.



In 2010, the Legislature amended K.S.A. 60-254(b) and it now reads "the court
may direct entry of a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just reason for delay."
K.S.A. 2018 Supp. 60-254(b). The court's first summary judgment notes "[t]here is no
just reason for delay in entering judgment against Donald G. Cox and Reba R. Cox. Said
judgments should be and are final orders, made pursuant to K.S.A. 60-254(b)." Given the
statutory change to K.S.A. 2018 Supp. 60-254(b), the district court's first summary
judgment order meets the definition of a final order because it found no just reason for
delay. As a final order, the district court's summary judgment meets the first requirement
of collateral estoppel.


Don and Reba do not claim the first summary judgment fails to meet the other two
factors of collateral estoppel. They have waived argument over those claims. See In re
Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018) (issues not adequately
briefed are deemed waived or abandoned). Moreover, the parties on these claims are
clearly the same. Similarly, the issue litigated—whether Don and Reba defaulted on the
terms of their agreements with Bank—was necessary to support the district court's
judgment. Collateral estoppel applies, and the district court did not err in using its finding
in its first summary judgment when it ruled on the second summary judgment.
23
The district court correctly granted summary judgment to Bank for the trespass to
chattels claim.


The district court found Bank paid for damages to Don and Reba for the gate
based on an affidavit from Bank's vice president. Don and Reba do not challenge this on
appeal, so they have waived argument over this issue. See In re Marriage of Williams,
307 Kan. at 977. Don and Reba also admitted to receiving a replacement gate.



The appellant record does not include a copy of the affidavit the district court
relied on, and the affidavit was likely attached to Bank's second motion and
memorandum for summary judgment. Don and Reba must provide a record supporting
their claims. They did not, so we may presume the district court did not err. See
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287
(2013).


Bank had a security interest in Reba's 2011 PJ Trailer.


The district court found the trailer was collateral under the 2009 security

agreement signed by Don and the 2010 security agreement signed by both Don and Reba.
Don and Reba, however, argued the 2011 PJ trailer was not collateral under any
agreement they had with Bank. Both security agreements grant Bank a security interest in
Don and Reba's farm equipment, but neither agreement specifically mentions the 2011 PJ
trailer. The agreements provide after-acquired property is attached and secured by the
security agreements. We have found only two security agreements for Don and Reba in
this appellate record. There are also no other documents in the record to suggest the 2011
PJ trailer was not covered. Even so, there appears to be a sizable amount of the record
missing—Bank's motion and memorandum for the second summary judgment. It is
possible a missing document establishes the issue definitively. However, Don and Reba
must provide a record supporting their claims. They did not, so we may presume the
24
district court did not err and the 2011 PJ trailer was subject to the after-acquired clause in
the 2010 security agreement. See Friedman, 296 Kan. at 644-45.

No support for Don and Reba's breach of contract claims


The mortgage requires Don and Reba maintain insurance and pay their property
taxes timely. The district court found Don and Reba's mortgage required they provide
insurance on their property and timely pay the taxes. Don and Reba failed to raise this
issue on appeal, so they have waived and abandoned the argument. See In re Marriage of
Williams, 307 Kan. at 977. The district court did not err in this finding.


We decline review of Don and Reba's additional arguments.


Don and Reba also raise issues of equitable estoppel, breach of a fiduciary duty,
and contract revision. They did not raise these arguments below and fail to argue why this
court should review these issues for the first time on appeal. We decline to review them.
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011); Supreme
Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34).


Affirmed.