State v. Buettgenbach

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NOT DESIGNATED FOR PUBLICATION

No. 116,996

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRENT J. BUETTGENBACH,
Appellant.

MEMORANDUM OPINION

Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed February 2, 2018.
Appeal dismissed.

John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., GARDNER, J., and TIMOTHY L. DUPREE, District Judge, assigned.

PER CURIAM: In this appeal, Brent J. Buettgenbach appeals the district court's
order for restitution. This appeal initially was dismissed on April 11, 2017, due to
Buettgenbach's failure to timely file his appellate brief. We reinstated the appeal on the
condition that the parties brief the issue of whether the office e-mail issues of
Buettgenbach's counsel warranted reinstatement. Now, on review of Buettgenbach's brief,
we conclude that he has failed to adequately address the issue and fails to show excusable
neglect. Accordingly, this appeal is dismissed.

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On December 16, 2016, Buettgenbach filed a timely notice of appeal from the
district court's rulings. His counsel requested transcripts for purposes of this appeal on
December 21 and 27, 2016.

On January 3, 2017, Buettgenbach filed the docketing statement. That same day
the court reporter filed a certification that the transcript had been completed pursuant to
Rule 3.03(e) (2017 Kan. S. Ct. R. 22). The certificate of service on that document
indicates it was deposited on that date in both the prosecutor's and defense counsel's
courthouse mail boxes. Buettgenbach's counsel would have expected the table of contents
to be completed thereafter by the end of January 2017, but he apparently failed to inquire
about it when, as he now claims, he did not receive a copy.

Buettgenbach's appellate brief was due on February 6, 2017, but was not filed by
that date. No motion for an extension of time was filed.

On February 23, 2017, this court issued an order advising counsel he had until
March 15, 2017, to file his brief or his appeal would be dismissed. Buettgenbach failed to
comply, and on April 11, 2017, his appeal was dismissed.

The following day, Buettgenbach moved this court to reinstate his appeal, arguing
that his failure to comply with the February 23, 2017, order was caused by e-mail issues
in his counsel's office. His motion was conditionally granted on April 27, 2017. The
parties were instructed to brief the issue of whether Buettgenbach's counsel's e-mail
issues warranted reinstatement. We requested the parties to consider the nonbinding, but
persuasive, decision by the Fourth Circuit Court of Appeals in Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403 (4th Cir. 2010).

In Robinson, the court had set a deadline for the filing of dispositive motions. Wix
filed a timely summary judgment motion, but Robinson failed to respond. The district
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court granted the motion, and Robinson moved for relief from the judgment, claiming he
never received the notice of electronic filing of the motion due to problems with his
counsel's computer system. The district court denied the motion, finding that the
"'computer problems did not relieve Robinson's counsel of his obligation to continue to
monitor the docket in this case.'" 599 F.3d at 407. The Fourth Circuit held that Robinson
failed to receive notice because of his own conscious choice not to take actions regarding
his computer issues and his "affirmative decision to remain in the dark." 599 F.3d at 409.
The court clarified that it was not imposing a new duty to monitor dockets, but

"we conclude that counsel cannot make the calculated choice to take no action with
respect to his electronic inaccessibility—by neither informing the court or the parties, nor
by simply ascertaining from the court as to whether dispositive motions were filed when
due—and then avail himself of discretionary relief from the consequences of that choice."
Robinson, 599 F.3d at 410.

In our present case, Buettgenbach moved to reinstate this appeal and requested
additional time to file his brief. According to Supreme Court Rule 5.02(c), a motion for
an extension of time after the time to act has expired must provide reasons that qualify as
excusable neglect. Rule 5.02 (2017 Kan. S. Ct. R. 31). "'Excusable neglect is a failure to
take some proper step at the proper time, not because of the party's own carelessness or
inattention, but because of some unexpected or unavoidable hindrance or accident.'"
Nielsen v. Pollan, No. 111,911, 2015 WL 4879159, at *11 (Kan. App. 2015)
(unpublished opinion), rev. denied 303 Kan. 1078 (2016). The party claiming excusable
neglect has the burden of proof. Canaan v. Bartee, 272 Kan. 720, 733, 35 P.3d 841
(2001).

Here, Buettgenbach argues that because of problems with his counsel's office e-
mail system, his counsel was unaware of the February 23, 2017, show cause order, which
advised him that his brief was overdue and extended the filing deadline to March 15,
2017. He argues that in addition to the e-mail issue, he did not receive a copy of the
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transcript or the table of contents until May 10, 2017, though the record shows that the
court reporter placed in Buettenbach's counsel's box at the courthouse a certification to
the completion of the transcript on January 3, 2017, the same day Buettgenbach filed his
docketing statement. In response to this court's request that he address the Robinson
decision, Buettgenbach merely states that the facts here are different from those in
Robinson. He does not address whether his untimely brief was caused by excusable
neglect. Finally, he fails to address the fact that he ignored the initial brief due date of
February 6, 2017, and failed to seek a time extension of the filing date.

Buettgenbach has failed to fully comply with our conditional reinstatement order
of April 27, 2017. His argument regarding his counsel's office e-mail problems do not
warrant reinstatement. He has not demonstrated that we should now consider his tardy
brief. Accordingly, this appeal is dismissed.

Appeal dismissed.