Karhoff v. Savage

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NOT DESIGNATED FOR PUBLICATION

No. 113,213

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOE KARHOFF,
Appellee,

v.

TONY SAVAGE,
Appellant.


MEMORANDUM OPINION

Appeal from Miami District Court; STEVEN C. MONTGOMERY, judge. Opinion filed October 23,
2015. Reversed and remanded.

Ronald E. Sandhaus, of Sandhaus & Mandelbaum, LLC, of Leawood, for appellant.

John A. Wilson, of Garnett, for appellee.

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

Per Curiam: Tony Savage appeals the denial of his motion to set aside a
garnishment in case No. 11-LM-223. We find the garnishment was issued on a judgment
that was no longer valid because another district court judge previously dismissed Joe
Karhoff's cause of action on appeal for failure to prosecute, leaving no judgment to
support the issuance of a garnishment. Savage's motion to set aside the garnishment
should have been granted. Reversed and remanded.



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FACTS

Joe Karhoff filed limited action case No. 11-LM-223, alleging Savage owed him
$17,780 for labor, equipment, and business loans related to various construction projects.
Savage answered and counterclaimed for $5,425. Following a bench trial before a
magistrate judge, judgment was entered for Karhoff. Savage timely filed a notice of
appeal.

Since the magistrate judge was not law trained, the appeal was directed to the
district court and was docketed as case No. 11-CV-217. The district court held a case
management conference setting out deadlines for discovery and motions for summary
judgment, none of which were complied with. Eventually, the district court scheduled the
trial de novo for January 4, 2013. However, due to a conflict, the district court
rescheduled the trial de novo for April 5, 2013.

Two days before trial, Savage moved to continue the trial, and the district court
denied his motion. At trial, both parties' counsel appeared, though neither party appeared
personally. Savage's counsel renewed his motion to continue, and Karhoff's counsel
opposed the motion to continue. After the district court denied Savage's renewed motion
to continue, Karhoff's counsel then made an oral motion to continue the trial. The district
court denied Karhoff's motion and dismissed the matter when Karhoff's counsel admitted
he was not prepared to proceed.

The record reflects there was some confusion regarding who was to prepare the
April 5, 2013, order of dismissal, and ultimately the district court filed an order of
dismissal on November 19, 2013. The short order provided: "Now on this 5th day of
April 2013, this matter comes before the court for trial. The Plaintiff, through counsel,
advises he is not prepared to proceed to trial; the court declines to continue the same. The
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matter is dismissed by the court." Karhoff did not appeal the district court's dismissal of
the matter in case No. 11-CV-217.

On February 3, 2014, Karhoff refiled his petition as limited actions case No. 14-
LM-34. Savage filed a motion to dismiss on March 5, 2014, arguing the claims were
dismissed in case No. 11-LM-223 on appeal in case No. 11-CV-217 with prejudice, and
res judicata applied. Another district court judge denied Savage’s motion but dismissed
14-LM-34 because "the 11-LM-223 judgment remains valid and undisturbed."

Karhoff seized on the quoted passage and filed a garnishment in the original
limited actions case, 11-LM-223. Savage objected and filed a motion to set aside the
garnishment arguing there was no judgment to support the issuance of the garnishment
since case No. 11-LM-223 had been dismissed when the appeal docketed in case No. 11-
CV-217 was dismissed. The district court denied Savage's motion. Savage timely
appealed the denial of his motion to set aside the garnishment.

ANALYSIS

Is the judgment valid?

Savage appeals the district court's denial of his motion to set aside the
garnishment. Savage argues the limited actions judgment entered by the magistrate judge
was void because on a de novo appeal to the district court, the district court dismissed the
matter. If a judgment is void, it has no valid force and effect. In re Adoption of J.H.G.,
254 Kan. 780, 791, 869 P.2d 640 (1994). A void judgment may be attacked at any time.
Sramek v. Sramek, 17 Kan. App. 2d 573, 576, 840 P.2d 553 (1992), rev. denied 252 Kan.
1093 (1993). In this case, determining whether the judgment was void requires a two-step
approach. First, did the district court abuse its discretion when it denied both parties'
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motions to continue and dismissed the matter because Karhoff was not ready to proceed?
Secondly, did the district court intend to dismiss Karhoff's cause of action or Savage's
appeal?

Here, there was a record of the proceeding before the magistrate judge. Judgments
entered by a magistrate judge not admitted to practice law in Kansas are appealed to the
district court judge for a trial de novo. K.S.A. 2014 Supp. 20-302b(c)(2); K.S.A. 2014
Supp. 60-2103a; K.S.A. 2014 Supp. 61-3902(a). An appeal to the district court for a trial
de novo is an appeal to start over fresh as though the original trial before the magistrate
judge never occurred. It matters not whether the appeal de novo is on the record created
before the magistrate judge or that the trial is recreated by calling witnesses to testify.
The district court judge is free to make his or her decision on the merits of the plaintiff's
or defendant's claims. See In re L.C.W., 42 Kan. App. 2d 293, 298, 211 P.3d 829 (2009).

The record indicates the parties treated the appeal to the district court as a trial de
novo. The parties participated in a case management conference, set deadlines for
Savage to complete discovery, and for Karhoff's motion for summary judgment. The
parties also participated in two pretrial conferences. The procedural history of the record
on appeal reflects the parties elected to proceed by trial de novo. The record does not
indicate either party objected to the procedure used. Neither party appealed the district
court's decision to conduct a trial de novo instead of on the record made before the
magistrate judge. Neither party argues the district court erred in setting the trial for a trial
de novo. In fact, at oral argument, Karhoff acknowledged the parties agreed to proceed
with a trial de novo instead of on the record. In any event, neither party challenges on
appeal the procedure used by the district court to process Savage's appeal, and an issue
not briefed is deemed waived and abandoned. See Superior Boiler Works, Inc. v.
Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). The parties have waived and
abandoned this issue.

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No abuse of discretion by the district court.

K.S.A. 2014 Supp. 60-240(b) permits the district court "[f]or good cause, the court
may continue an action at any stage of the proceedings on just terms." Appellate courts
review the district court's determination that a motion was or was not supported by "good
cause" for an abuse of discretion. Miller v. Glacier Development Co., 284 Kan. 476, 494,
161 P.3d 730 (2007), cert. denied 552 U.S. 1258 (2008). A district court abuses its
discretion if its judicial action is arbitrary, fanciful, or unreasonable; is based on an error
of law; or is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013), cert. denied 134 S. Ct. 162
(2013). District courts must take all of the circumstances into account when ruling on a
motion for continuance, including the applicant's good faith, his or her showing of due
diligence, and the lawsuit's timetable. In re J.A.H., 285 Kan. 375, 385, 172 P.3d 1 (2007).

Here, the record is insufficient to show the district court abused its discretion by
denying the parties' motions for continuance. Appellants have the burden to provide a
record sufficient to support their arguments. Nold v. Binyon, 272 Kan. 87, 96, 31 P.3d
274 (2001). Appellants are not required to provide a record sufficient to support their
opponent's arguments. Nold, 272 Kan. at 96. Appellees have the opportunity to request
additions to the record. Nold, 272 Kan. at 96. The appeal had been pending for nearly 21
months when the district court denied the parties' motions for continuance and ultimately
dismissed the matter. The record does not contain Savage's motion for a continuance filed
on April 3, 2013, or the order denying Savage's motion. Likewise, the record does not
contain a transcript of the April 5, 2013, trial when Karhoff asked for a continuance.
Without a sufficient record of the motions and hearing before the district court, we
presume the district court actions were proper and find there was no abuse of discretion.
See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013) (without such a record, an
appellate court presumes the action of the district court was proper).
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The district court intended to dismiss Karhoff's cause of action, not Savage's
appeal.

While Savage argues the district court judge intended to dismiss Karhoff's cause of
action, Karhoff argues the order of dismissal is ambiguous because it dismissed the
"matter" instead of the "case" or "appeal." Matter is defined as "1. A subject under
consideration, esp. involving a dispute or litigation . . . 2. Something that is to be tried or
proved; an allegation forming the basis of a claim or defense . . . 3. Any physical or
tangible expression of a thought." Black's Law Dictionary 1126 (10th ed. 2014). This
definition supports an interpretation of matter as Karhoff's cause of action instead of
Savage's appeal.

The record also supports Savage's argument that the district court intended to
dismiss Karhoff's cause of action. Directly under the case caption referring to Karhoff as
the plaintiff, the order of dismissal indicates "the Plaintiff," as opposed to "the appellant,"
was not prepared to proceed to trial. In an order denying Karhoff's postdismissal motions,
the district court indicated the matter was dismissed because "[t]he Plaintiff, through
counsel, advises he is not prepared to proceed to trial." Furthermore, Karhoff initially
interpreted the order of dismissal as dismissing his cause of action as shown by the fact
he filed a second, identical petition after the dismissal. Based on the record, the district
court clearly dismissed Karhoff's cause of action.

Finally, interpreting the order of dismissal as a dismissal of the appeal would lead
to an illogical result. If the district court dismissed Savage's appeal because Karhoff was
not ready to proceed at trial, Savage would have lost his appeal to the district court due to
his opponent's actions. Interpreting the order of dismissal as a dismissal of the appeal
would provide no incentive for a winning plaintiff to ever participate in an appeal to the
district court. This, combined with the definition of "matter" and the evidence in the
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record, reflects the district court dismissed Karhoff's cause of action instead of Savage's
appeal.

The district court erred when it denied Savage's motion to set aside the
garnishment because the judgment was void.

Based on the record provided by the parties, there is no evidence the district court
abused its discretion when it denied Savage's motion for continuance 2 days before trial
or when it denied Savage's motion for reconsideration and Karhoff's motion for
continuance at trial. The record reflects the district court dismissed 11-CV-217 because
Karhoff, as plaintiff, had the burden of proof and was not ready to proceed. Since
judgment in 11-LM-223 was on appeal de novo to the district court and dismissed by the
district court in case No. 11-CV-217, there was no valid judgment to support the issuance
of a garnishment in case No. 11-LM-223. The district court erred when it denied Savage's
motion to set aside the garnishment.

Reversed and remanded with instructions to set aside the garnishment as void.