Farmers State Bank v. Orcutt

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NOT DESIGNATED FOR PUBLICATION

No. 119,570

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FARMERS STATE BANK, WATHENA, KANSAS,
Appellee,

v.

WILLIAM ORCUTT, et al.,
Appellant.


MEMORANDUM OPINION

Appeal from Doniphan District Court; JOHN L. WEINGART, judge. Opinion filed June 14, 2019.
Affirmed.

Gregory V. Blume, of Overland Park, for appellant.

J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: "When an appellate court has remanded a case for further
proceedings, a trial court must comply with the appellate court's mandate and may
consider only the matters essential to implementing the mandate. Leffel v. City of Mission
Hills, 47 Kan. App. 2d 8, 15, 270 P.3d 1 (2011).

Farmers State Bank (Bank) initiated foreclosure proceedings against William
Orcutt in 2006. After a judgment was entered, Orcutt moved for issuance of a show cause
order where he alleged Bank was in contempt of court for disposing of an item of
property in a manner inconsistent with the court's instructions. The district court denied
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Orcutt's motion and did not issue a show cause order. Orcutt appealed and this court
reversed the district court and remanded with directions to issue a show cause order as
requested. Farmers State Bank v. Orcutt, No. 105,835, 2012 WL 1920329, at *6 (Kan.
App. 2012) (unpublished opinion).

The hearing was continued multiple times. Eventually, at the behest of the
parties—including Orcutt, the district court found the motion to be moot. On appeal,
Orcutt argues the district court failed to follow this court's mandate.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of this case are set out in Farmers State Bank v. Orcutt, 2012
WL 1920329, at *1-3. Essentially, the Bank sued to foreclose security interests in
personal property, including a 2001 Ford Taurus. The parties agreed to allow the Bank to
sell the personal property in its possession, including the Taurus, in a commercially
reasonable fashion. The Taurus was not sold, apparently because the Bank was unable to
locate the vehicle.

The Bank entered into a settlement agreement with Orcutt's son, Jason. Under the
agreement, Jason would transfer real estate to the Bank and the Bank would dismiss the
suit against him and agree not to file an action against his wife, Mandy.

Later, Orcutt added to the court file a document that purported to show Mandy
received the Taurus in exchange for her signature on the settlement agreement between
Jason and the Bank. Orcutt filed a pro se motion seeking to compel the bank to produce
any documents related to the Taurus. He later filed a motion asking the district court to
order the Bank to appear and show cause why it should not be held in contempt of the
court's order requiring the Taurus to be sold in a commercially reasonable fashion. After
a hearing, the district court denied Orcutt's motion to issue a show cause order. This court
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reversed the district court's decision and directed the district court to "issue an order for
the Bank to appear and show cause as to why it should not be found in indirect contempt
and to conduct further proceedings" as necessary. 2012 WL 1920329, at *6.

After this court issued its opinion, Orcutt filed another motion in the district court
for an order for the Bank to appear and show cause. His motion referenced the Taurus,
but also referred to other vehicles not specifically mentioned in the earlier appeal.

The court scheduled a show cause hearing on November 1, 2012. The hearing was
continued multiple times and was eventually continued indefinitely. The reasons for the
continuances are not clear from the record.

Almost two years later, Orcutt moved to set aside the underlying judgment
alleging the Bank committed fraud on the court by failing to disclose the purported
settlement agreement between the Bank and Mandy involving the Taurus. Orcutt also
moved for summary judgment. Orcutt's motion for summary judgment was largely
similar to his earlier motion to set aside judgment.

Shortly after filing the motion for summary judgment, Orcutt's attorney was
allowed to withdraw from the case. Orcutt obtained new counsel and a hearing was
scheduled for January 2018. The record on appeal contains no transcript of the hearing.
But according to the journal entry of the hearing, the parties informed the court that
Orcutt's motion to show cause was moot. The court found the motion was moot. The
court dismissed Orcutt's remaining motions.

Orcutt appeals the finding that the show cause motion was moot.



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ANALYSIS

The only issue Orcutt raises on appeal is whether the district court failed to follow
this court's mandate to issue an order requiring the Bank to appear and show cause
regarding contempt of court. The Bank argues that Orcutt cannot appeal the issue because
he told the district court the issue was moot which resulted in its dismissal.

The district court complied with the mandate.

"When an appellate court has remanded a case for further proceedings, a trial court
must comply with the appellate court's mandate and may consider only the matters
essential to implementing the mandate. In a second appeal, a determination regarding the
trial court's compliance with the mandate involves questions of law over which this court
has unlimited review." Leffel, 47 Kan. App. 2d at 15-16; see State v. Moore, No. 117,275,
2019 WL 2063682, at *2 (Kan. May 10, 2019) (unpublished opinion) (compliance with
the mandate of an appellate court is a question of law over which we have unlimited
review).

While the district court is required to follow a mandate from an appellate court,
the district court has discretion in implementing the mandate. Leffel, 47 Kan. App. 2d at
16. The court can "'address those issues necessary to the resolution of the case that were
left open by the appellate court's mandate.'" 47 Kan. App. 2d at 16 (quoting Edwards v.
State, 31 Kan. App. 2d 778, 781, 73 P.3d 772 [2003]).

Here, the district court complied with the mandate and ordered a show cause
hearing.

But Orcutt argues the show cause order was "rendered null and void" because the
district court continued the hearing multiple times. Orcutt alleges the Bank "was able to
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rely on the protection of the District Court" to avoid the hearing. But he cites to nothing
in the record that suggests the continuances were not warranted or that he even opposed
them. In fact, at oral argument it was suggested that most of the continuances were at the
request of Orcutt's own attorney, although Orcutt noted that he did not agree to them. The
burden is on the party making a claim to designate facts in the record to support that
claim; without such a record, the claim of error fails. Friedman v. Kansas State Bd. of
Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013). Orcutt fails to designate a
record to support his claims that the show cause order was "rendered null and void."

Ultimately, the district court issued the order to show cause and set a date for the
necessary hearing. At some point, Orcutt's attorney informed the court that Orcutt's
motion to show cause was moot. We can suppose that the parties agreed it was moot
because Orcutt had filed, by this time, a motion to set aside judgment and a motion for
summary judgment raising the sale of the Taurus as the primary issue. A ruling on those
motions would be a ruling on the appropriateness of the disposition of the Taurus. But we
cannot be certain of our supposition because the record contains no transcript or writing
to explain why Orcutt's attorney believed the motion was moot. In fact, Orcutt's attorney
informed the court in conjunction with this appeal that "that no transcript is necessary at
this time."

Nor does Orcutt's counsel mention the mootness finding in his appellant brief or
his reply brief. We find this very troubling. Counsel has a duty of candor to the court.
Comment [3] to KRPC 3.3 (2019 Kan. S. Ct. R. 351). ("There are circumstances where
failure to make a disclosure is the equivalent of an affirmative misrepresentation.").
Orcutt does not, and could not, challenge the district court's decision finding the show
cause order moot because he invited the district court's ruling. See Thoroughbred Assocs.
v. Kansas City Royalty Co., 297 Kan. 1193, 1203, 308 P.3d 1238 (2013). Counsel wholly
fails to address the Bank's invited error argument.

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The district court complied with this court's mandate by issuing a show cause
order and setting a hearing. The hearing was continued multiple times and eventually the
motion was declared moot. Orcutt does not argue the district court's finding that his
motion was moot was in error. Instead, he argues the district court failed to follow the
mandate. But the record clearly shows that is not the case. The district court complied
with the mandate. But when the time came to conduct a hearing on the motion, Orcutt
and the Bank informed the court the issue was moot. The court could do nothing more.

Orcutt does briefly discuss possible ineffectiveness of his prior attorneys, but that
issue was not raised before the district court nor is it fully briefed here. Moreover, this
case is not the proper vehicle for Orcutt to raise ineffective assistance of counsel claims
in his civil case.

Orcutt raises no other issues in his brief. Issues not adequately briefed are deemed
waived or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033
(2018). Orcutt has waived any other possible issues in this matter due to failure to brief.

Affirmed.