Opinion
No. 107,573.
2013-02-1
In the Matter of the Guardianship and Conservatorship of Karen L. BRAYMER. In the Matter of the Guyer Family Trust and the Lucile Guyer Testamentary Trust.
Appeal from Barton District Court; Ron Svaty, Judge. Nathanael Berg, of Hampton & Royce, L.C., of Salina, for appellant. Roger Peterson, of Peterson & Rasper, of Ellsworth, for appellee Kenneth L. Kerns, Conservator.
Appeal from Barton District Court; Ron Svaty, Judge.
Nathanael Berg, of Hampton & Royce, L.C., of Salina, for appellant. Roger Peterson, of Peterson & Rasper, of Ellsworth, for appellee Kenneth L. Kerns, Conservator.
Patrick G. Hoffman, of Sherman, Hoffman & Hipp, LC, of Ellsworth, for appellee Joel Jackson, Trustee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Cary Braymer, former Guardian and Conservator of Karen Braymer and Trustee of the Guyer Testamentary Trust and the Guyer Family Trust (Trusts), appeals from the district court's entry of a default judgment against him. The district court found that Cary had engaged in a continual pattern of delay in a reimbursement action filed by the successor Trustee of the Trusts. Based on our independent review of the egregious facts and circumstances of this case, we conclude the district court did not abuse its discretion when it imposed the harsh sanction of a default judgment for Cary's discovery abuse. Accordingly, we affirm the district court.
Factual and Procedural Background
On March 26, 2001, the Barton District Court appointed Cary as Guardian and Conservator for his sister, Karen Braymer. Karen has disabilities which required this guardianship and conservatorship. Cary was also the Trustee of the Trusts. The beneficiaries of the Trusts were Karen and Cary.
In November 2002, Karen began residing at Friendship Manor Rehabilitation Center of Haviland (Friendship Manor), an adult care home for persons with mental illnesses. A short time later, the Adult Protective Services Division of the Department of Social and Rehabilitation Services (SRS) wrote a letter to District Judge Mike Keeley alleging that Cary had neglected his duties as Guardian and Conservator by failing to properly care for Karen. Additionally, Friendship Manor filed a claim against the conservatorship for outstanding medical bills. Following a hearing, Judge Keeley approved Friendship Manor's claim, and a panel of this court affirmed, finding Cary's appeal to be “ludicrous” and “totally frivolous.” In re Guardianship and Conservatorship of Braymer, No. 90,800, 2004 WL 720131, at *1 (Kan.App.2004) (unpublished opinion).
Shortly thereafter, Cary's actions as a fiduciary fell under additional scrutiny which spawned several years of protracted litigation regarding whether Cary misappropriated the assets of the conservatorship and Trusts. Given the legal issue presented, the facts of these lengthy and complicated legal proceedings must be described in some detail.
This case began in 2004, when despite frequent requests, Cary failed to provide the district court with an inventory and annual accounting of the funds and assets of the conservatorship. Consequently, when Cary finally filed an inventory of the conservatorship assets and an annual accounting for the period from July 2, 2001, to June 30, 2004, District Judge Ron Svaty appointed Kenneth Kerns as a special guardian ad litem to review this documentation.
After conducting his review, Kerns filed an objection to the accounting figures. In particular, Kerns alleged that clarification was required regarding payments Cary made to himself as a fee for his services. The expenditures Cary made for food, household costs, bank charges, legal fees, transportation expenses, and gifts to the Braymer family, also appeared to be excessive and/or made without the approval of the district court. Additionally, Kerns requested more information about Karen's assets because the documentation Cary provided failed to present “a clear and accurate picture” of the value of her property and its income potential.
Judge Svaty subsequently issued two orders instructing Cary to file numerous documents, including written explanations of several of the questionable expenditures he made on Karen's behalf from the conservatorship and an accounting for the Trusts. Cary failed, however, to provide this documentation by the specified deadlines. As a result, Judge Svaty issued a show cause order compelling Cary to appear before the court and explain why he should not be held in contempt. When Cary failed to appear at the show cause hearing, Judge Svaty issued a bench warrant for his arrest.
Shortly thereafter, Cary filed a motion to withdraw as Karen's Guardian and Conservator because, due to Kerns' objection, he believed it “would not be in his best interest” to continue acting in this capacity. Cary also filed an “answer” to the district court's most recent order compelling him to submit additional accounting documents, an inventory of Karen's assets, and several documents explaining expenditures he made on Karen's behalf. Cary indicated that he had regularly filed accountings “in the original guardianship and conservatorship case,” which were approved by the district court. According to Cary, however, the original court file had been lost and could not be located.
In early 2006, Judge Svaty found that Cary had failed to “supply information and documentation stemming from his duties” as Guardian and Conservator, and to “compile and submit financial information relating to the conservatorship” as ordered by the court. Because of Cary's resignation request and his “failure to perform,” Judge Svaty removed Cary as Karen's Guardian and Conservator. Kerns was appointed the successor Conservator, and Paula Dinkel was appointed as Karen's successor Guardian.
Judge Svaty ordered Cary to “extend his full and complete cooperation” to Kerns with regard to the transfer of all assets, records, and documentation relating to the conservatorship. He also ordered Cary to transfer Trust records with the conservatorship records within a specific time period. Lastly, Judge Svaty determined it was appropriate for the court to exercise jurisdiction over the supervision and administration of the Trusts. As a result, he ordered Cary, as Trustee, to seek court approval of expenditures from the Trusts and to file annual accountings.
On April 21, 2006, Kerns filed a motion seeking to compel Cary's compliance with the district court's orders for production and for an order removing Cary from his position as Trustee. Kerns also filed a motion for an order to show cause alleging that Cary should be held in contempt for failing to provide the court-ordered documentation.
On May 5, 2006, a show cause hearing was held, and after considering the evidence, Judge Svaty found Cary in contempt for failing “to supply information and documentation stemming from his duties as [Karen's] guardian and conservator” and failing to “compile and submit financial information relating to the conservatorship.” Judge Svaty afforded Cary the opportunity to purge himself of contempt, however, by transferring to Kerns all assets, records, and documentation relating to the conservatorship by May 12, 2006. Additionally, Judge Svaty removed Cary as Trustee of the Trusts, appointing Joel Jackson as the successor Trustee. Judge Svaty also ordered Cary to “extend his full and complete cooperation” to Jackson regarding the transfer of all assets, records, and documentation relating to the Trusts.
On May 18, 2006, Kerns sent a letter to Judge Svaty advising him that Cary had failed to provide the conservatorship records and documentation by the May 12, 2006, deadline. In fact, Kerns asserted that he had “received no contact of any type” from Cary since the show cause hearing. Subsequently, Judge Svaty found that Cary had “failed to comply with [c]ourt orders on several occasions ... without good cause or excuse.” The judge sanctioned Cary by ordering him to serve 5 months and 29 days in the Barton County Jail. Judge Svaty agreed, however, to delay the imposition of this sentence for 90 days if Cary complied with the following conditions: (1) submission to a psychological evaluation; (2) delivery of “any and all Trust documents associated with the Trust[s] ... to the substitute Trustee, Joel Jackson, at his office” on or before June 21, 2006; and (3) delivery of any additional bank records Cary discovered pertaining to the conservatorship to Kerns immediately upon discovery. The judge also granted Jackson's request to hire an accountant to review the Trust documents.
On October 19, 2006, on behalf of the conservatorship, Kerns filed a request for a reimbursement judgment against Cary for “funds improperly expended.” Following a hearing, Judge Svaty issued an order finding that Cary had misused conservatorship funds and he entered a reimbursement judgment totaling $36,874.10. Judge Svaty stated he was “not at all satisfied with [Cary's] behavior, his testimony or his attitude.” The judge explained that Cary never made an accounting to the court of the expenditures he made from Karen's Social Security funds; instead, Cary “chose to wait [until] the hearing to orally explain the checks that Mr. Kerns had to work so hard to find.” Notably, Cary failed to satisfy the reimbursement judgment within the timeframe specified by the district court. As a result, the judge ordered the forfeiture of Cary's conservator's bond.
About 1 year later, on December 6, 2007, Jackson filed a request for a reimbursement judgment against Cary for misappropriating funds from the Trusts during Cary's term as Trustee. Jackson's accountant, Ron Miller, had determined that during almost 4 years (September 8, 2002, to August 22, 2006) Cary paid himself $78,318.11 from the Trusts while he only paid Karen $8,000 during the same period. Jackson further explained that although the distributions Cary made from September 2000 until September 8, 2002, were unknown, he speculated that Cary also misused the funds of the Trusts during this period as well. Jackson proposed that Cary's share of the yearly distributions from the Trusts be paid to Kerns, as Karen's Conservator, until any reimbursement judgment was satisfied.
On December 27, 2007, Judge Svaty agreed to defer any action for 45 days to allow Cary “to conduct discovery and to determine how he wishe[d] to respond to the request for reimbursement judgment.” On February 15, 2008, however, Cary requested an extension of the discovery deadline because although the parties had “recently completed document production” more time was necessary to complete Miller's deposition because Miller was “in the middle of tax season and hope[d] to wait until after April 15 for his deposition to be taken.” Cary also indicated that “the parties hope[d] to resolve the disputes as amicably as possible under the circumstances[,][and][t]he likelihood of reaching a settlement [would] increase if an extension of time [was] granted as the parties [would] gain more information regarding previous trust transactions.” Judge Svaty granted the continuance and extended the discovery deadline by 75 days, or until May 1, 2008.
Almost 1 year later, on April 22, 2009, Jackson's request for a reimbursement judgment came before the district court for purposes of trial. After overruling Kerns' objection to a delay in the proceedings, Judge Svaty conducted a case management and discovery conference “in light of recent changes of position” by Cary. The judge set a scheduling hearing for June 1, 2009, and ordered Cary to submit “an outline of any proposed corrections or additions to the accounting provided by Ron Miller” to opposing counsel.
A short time later, Jackson filed a motion asking for “directions and instructions” because Cary had provided him with “information suggesting that no reimbursement judgment should be found” and the information Cary provided was “inconsistent with the accountings filed with the [c]ourt.” For example, Jackson explained that while Cary did not file an accounting for the Guyer Family Trust in 2004, some of the transactions Cary had recently asked him to review were distributions Cary allegedly made to Karen from this trust. Moreover, Cary apparently informed Jackson that he made “multiple payments” to Karen from the Trusts after the court appointed Kerns as her Conservator, but according to Jackson, Kerns had denied receiving these payments. As a result, Jackson asked for the appointment of a second accountant to review Cary's recent submission, all bank records, and the previous accounting work.
Judge Svaty granted Jackson's motion and appointed Barry Bowers, a certified public accountant, “to do a full and complete review of all identified bank records ... for the purpose of determining the status of said accounts with an eye towards reaching a professional opinion as to whether [Cary] does or does not owe [money to] the aforesaid trusts.”
A few months later, Judge Svaty issued an order directing the banking institution handling the assets of the Trusts to examine its account records because the parties were having difficulty ascertaining information “relevant to the question of whether a reimbursement judgment [was] appropriate.” Specifically, the judge directed the bank to search for all accounts connected with Cary and Karen's social security numbers because there had been “some indication that a different spelling of either Karen Braymer or [Cary] Braymer may lead to discovery of another account.” Judge Svaty also ordered the bank to search for any accounts connected with Cary Braymer or similar names with a different spelling.
On June 10, 2010, Cary deposed Miller, but according to Jackson, for the next 7 months, there was “little action on the litigation front.” In fact, on January 7, 2011, Jackson advised Judge Svaty that Cary had indicated to Kerns and him that he was retaining the services of an accountant. After Jackson and Kerns had both agreed to delay their discovery efforts until the accountant's report was complete, “no report ha[d] been received.” Jackson also reminded Judge Svaty that he would be distributing Cary's portion of the Trust disbursements to Kerns, on Karen's behalf, “with the understanding” that this amount would be “credited against any amount the Court should find [Cary] owes.”
On August 15, 2011, Jackson filed a motion for sanctions against Cary, pursuant to K.S.A.2011 Supp. 60–237, for failing to appear for his deposition. Jackson explained that he had originally scheduled Cary's deposition for June 3, 2011, but at the request of Cary's counsel, the deposition was rescheduled for July 21, 2011. According to Jackson, Cary left a voicemail at his office “advising that he was trying to find new counsel and that he would not appear on July 21, 2011 for his deposition.” Jackson further explained that on July 21, 2011, while he, Kerns, and Cary's withdrawing counsel, appeared for Cary's rescheduled deposition, Cary failed to appear. As a result, Jackson recommended that the court sanction Cary by entering a default judgment in the amount of $78,318.11.
On August 26, 2011, Cary filed a response to Jackson's motion by and through his newly retained counsel—the seventh attorney to represent Cary since his appointment as Karen's Conservator and Trustee of the Trusts. Cary contended that sanctions were inappropriate because despite his phone call advising Jackson that he would be unavailable for his deposition on July 21, 2011, Jackson “still proceeded to attempt to conduct the deposition.” Moreover, Cary explained that he had recently sent Jackson a letter making himself available for a deposition “any day before September 8, 2011 and most days following September 8, 2011.” Cary also alleged that sanctions were not appropriate because Jackson failed to file a certification, as required by K.S.A.2011 Supp. 60–237, explaining the steps taken, in good faith, to resolve this matter without seeking court intervention. Additionally, Cary alleged that Jackson had failed to show willfulness or bad faith, because he did not violate a court order.
On September 8, 2011, the district court held a hearing on Jackson's motion for sanctions. At the hearing, Jackson and Kerns expressed frustration over Cary's delay of the litigation. Kerns argued that Cary exhibited a pattern of delay: “But I'm kind of feeling that we're—we are confronted with a pattern here, Your Honor. Like any time the pressure comes down on Mr. Braymer, suddenly an attorney's fired and another attorney is brought into the picture.” Moreover, Kerns and Jackson reminded Judge Svaty that Cary had previously indicated that he planned to hire an accounting firm to review the records, but according to Kerns, after 2 or 3 months, Cary informed him that he was not going to hire an accountant. Although Cary had recently suggested mediation, Kerns expressed his reluctance to pursue this avenue because it involved an additional expense he did not believe the conservatorship or the Trusts should have to bear.
Cary's counsel argued against sanctions but conceded, “at least from [his] review of the file, that this [case] ha[d] gone on long enough and that this [was] something that [could] be resolved and should be resolved in the very near future.” As a suggestion for “moving this case along,” Cary's counsel recommended that the court impose “some hard deadlines ... with maybe consequences for failing to meet those deadlines.”
At the conclusion of the hearing, Judge Svaty found that Cary's behavior exhibited “a complete and total pattern of delay” throughout the entirety of the legal proceedings. Judge Svaty explained,
“Mr. Kerns is exactly right. Every time we get to a tipping point, according to the record, Mr. Braymer stalls by firing his lawyer. And he has stalled long enough that this case is seven years old, and I ... haven't completed it. And I have promised Mr.—Judge Keeley I would get it done before I get off the bench.
“ Mr. Braymer has a pattern of delay. He not only delays by changing lawyers, he delays by saying I'm going to go hire an accountant. And we took his word at it, and he didn't get that done. Now you come before me today and say, I think we can get this mediated. Well, I think we can get it done faster. I'm granting the motion for sanctions. You're right. This does result in a judgment. We're going to have a final judgment. If you don't like it, you can appeal it. But that's where we're at today.
“ Mr. Braymer, you have been nothing but a thorn in the Court's side in this thing. I had to drag information out of you. You know very well that we didn't know about the Social Security. We didn't know about the trust. We had to drag that information out of you. Then once we get the information from you, we can't get you to court.
“Well, this case is really done. I'm essentially granting the motion for sanctions, whether you think Mr. Jackson followed the statute or not, Mr. Berg. That's what I'm finding, because I'm finding a complete and total pattern of delay. And the only way for me to get this case moving finally—because even though you may—and I know you're a good lawyer. You've appeared in front of me many times.
“I've had six actual good lawyers in front of me, and a seventh one named by Mr. Braymer. And I'm sure you believe that it could be mediated. But my past history with Mr. Braymer is, no, it will be delayed again. So I'm granting the motion that you asked for, the sanctions that you asked for.” (Emphasis added.)
Judge Svaty entered a default judgment against Cary in the amount of $78,318.11, without any deduction or credit for any Trustee fees, which Cary may otherwise be entitled. Cary subsequently filed this timely appeal.
Discussion
Cary contends the district court erred when it entered a default reimbursement judgment against him, under K.S.A.2011 Supp. 60–237, as a sanction for discovery abuse. Both Jackson, as Trustee of the Trusts, and Kerns, as Karen's Conservator, argue that entry of a default judgment was an appropriate sanction for Cary's continual efforts, throughout the proceedings, to obstruct the administration of justice.
The decision whether to impose discovery sanctions is within the sound discretion of the district court, and appellate courts review an award of sanctions, including the entry of a default judgment, under an abuse of discretion standard. See Schoenholz v. Hinzman, 295 Kan. 786, Syl. ¶ 11, 289 P.3d 1155 (2012); Canaan v. Bartee, 276 Kan. 116, 135, 72 P.3d 911,cert. denied540 U.S. 1090 (2003); Deutsche Bank Nat'l Trust Co. v. Sumner, 44 Kan.App.2d 851, 861–62, 865, 245 P.3d 1057 (2010), rev. denied 293 Kan. –––– (2011). A judicial action constitutes an abuse of discretion,
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
K.S.A.2011 Supp. 60–237 authorizes district courts to compel disclosure or discovery and to award sanctions for discovery abuse. When a party “fails to obey an order to provide or permit discovery” or “fails, after being served with proper notice, to appear for that person's deposition,” the district court is authorized to “issue further just orders,” including “dismissing the action or proceeding in whole or in part,” or “rendering a default judgment against the disobedient party.” K.S.A.2011 Supp. 60–237(b)(2), (d)(1).
In determining whether the district court abused its discretion, appellate courts have recognized “the severity of judgment by default as a sanction for failure to comply with discovery orders,” and, therefore, a default judgment should only be entered “as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end. [Citations omitted.]” Deutsche Bank Nat'l Trust Co., 44 Kan.App.2d at 865. As a result, when the evidence establishes that a “party has acted in deliberate disregard of reasonable and necessary court orders and the party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed. [Citation omitted.]” Canaan v. Bartee, 272 Kan. 720, 726–27, 35 P.3d 841 (2001). Of note, when the party failed to comply because of an “ ‘inability to do so rather than bad faith, a severe sanction such as dismissal or default probably would be inappropriate.’ [Citations omitted.]” 272 Kan. at 727.
Our Supreme Court has identified three factors for appellate courts to consider when determining whether a district court abused its discretion in granting a default judgment as a sanction: “(1) Does the discoverable material go to a dispositive issue in the case? (2) Are alternative sanctions sufficient to protect the party seeking discovery available? and (3) Is the requested information merely cumulative or corroborative? [Citations omitted.]” Deutsche BankNat'l Trust Co., 44 Kan.App.2d at 865–66.
Despite Cary's attempt to convince this court otherwise, he was sanctioned due to his continual efforts to delay discovery which necessarily delayed the proceedings. Cary's failure to appear at his deposition was simply “the proverbial ‘straw that broke the camel's back.’ “ See Deutsche Bank Nat'l Trust Co., 44 Kan.App.2d at 867. Based upon a careful review of the record and Cary's behavior throughout the proceedings, we find that Judge Svaty did not abuse his discretion when he entered a default judgment against Cary. Our conclusion is based upon Cary's pattern of delay, and because the discoverable material related to a dispositive issue in the case, alternative sanctions were insufficient, and the requested information was not merely cumulative or corroborative. See 44 Kan.App.2d at 865–66.
First, Cary's deposition and the other discovery orders directing him to provide documentation relating to the Trusts, clearly went to a dispositive issue, as the crux of the action involved whether or not Cary misappropriated funds from the Trusts. As Jackson points out, Cary, as former Trustee, was “the only person with direct and full knowledge of the Trust[s'] finances during the time in question .”
Second, given Cary's persistent attempts to delay the proceedings, alternative sanctions would not have adequately protected the Conservatorship and the Trusts from further delay and expense. Although Cary argues that several alternative sanctions existed such as rescheduling his deposition, imposing “ ‘hard deadlines' “ for discovery, and mediation, as Judge Svaty found, based upon Cary's actions throughout the proceedings, there is considerable proof these alternatives would have been insufficient. Judge Svaty provided Cary with numerous opportunities to comply with the discovery orders. He was extremely accommodating. Indeed, at a motion for clarification hearing held after entry of the default judgment, Judge Svaty noted,
“[O]ne reason why we spent three years in this situation, where Mr. Jackson said he thought it would be resolved in six months, was Mr. Braymer kept saying I'm going to go hire an accountant and overrule—and find something different than what the—Mr. Miller found. And we kept waiting and waiting and waiting and it didn't happen.” (Emphasis added.)
In our view, the record supports the district judge's conclusion that Cary intentionally employed numerous delaying tactics such as requesting extensions and/or continuances, firing his counsel at critical times in the litigation, changing his position, requesting the hiring of a new accountant, and finally not appearing for his rescheduled deposition. The entirety of the record clearly shows that Cary's strategy was to deliberately delay the proceeding in order to avoid having his conduct as Trustee scrutinized. Given this record, there is no reason to expect that Cary's behavior would change after 4 years of procrastination.
Third, neither Cary's deposition nor the documents which were the subject of the discovery orders were cumulative of other evidence. Cary was the sole individual with information pertaining to his use of the Trusts' funds; thus, the evidence sought by Jackson and Kerns was critical to determining whether Cary misappropriated funds, which would entitle the Trusts to a reimbursement judgment.
Significantly, Cary never provided many of the requested Trust documents, and Cary's noncompliance with requests for this material substantially contributed to the filing of the reimbursement action. On May 5, 2006, Judge Svaty ordered Cary to “extend his full and complete cooperation” to Jackson with respect to the transfer of all assets, records, and documentation relating to the Trusts. At the contempt hearing held on June 15, 2006—more than a year later—Judge Svaty again ordered Cary to provide Jackson with “any and all Trust documents associated with the Trust[s]” when he agreed to delay the imposition of criminal sanctions. Yet, neither of these orders was obeyed. When Cary's deposition was scheduled, about 5 years later, Jackson still had not received all of the Trust documents.
Against this background of noncompliance, the deposition of Cary was the last remaining source of valuable information pertaining to his handling of the Trust. This discovery information was not merely cumulative or corroborative of other evidence; it was essential to the outcome of the proceedings and unobtainable by other means.
Cary challenges the propriety of Judge Svaty's decision because he claims that Jackson's motion for sanctions did not comply with the procedural requirements articulated in K.S.A.2011 Supp. 60–237(d). This statute generally requires a movant seeking sanctions to “include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action and [to] describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute.” K.S.A.2011 Supp. 60–237(d)(1)(B).
The plain language of K.S.A.2011 Supp. 60–237(d), however, only requires a certification if the motion for sanctions is based upon a failure to serve answers to interrogatories or respond to a request for inspection. Subsection (d) does not indicate that certification is required if the motion for sanctions is premised upon a failure to appear for a deposition. K.S.A.2011 Supp. 60–237(d). Indeed, subsection (d)(1)(A) states that the court may, on motion, order sanctions when a party: (1) “fails, after being served with proper notice, to appear for that person's deposition”; or (2) “fails to serve its answers, objections or written response,” after properly being served with interrogatories or a request for inspection. (Emphasis added.) Yet, significantly, K.S.A.2011 Supp. 60–237(d)(1)(B) only refers to a party's failure to answer or respond:
“A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action and must describe the steps taken by all attorneys or unrepresented parties to resolve the issues in dispute.” (Emphasis added.)
Accordingly, the fact that K.S.A.2011 Supp. 60–237(d)(1)(B) does not reference a party's failure to appear indicates that the certification requirement is limited solely to motions seeking sanctions for failing to answer interrogatories or respond to a request for inspection.
Furthermore, even if such a certification was required in this case, in In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 540–41, 957 P.2d 473 (1998), our Supreme Court suggested that the absence of such a certification does not automatically invalidate orders issued under K.S.A.1997 Supp. 60–237. In Appeal of American Restaurant Operations, although the taxpayer did not include a “ ‘certification’ “ with its motion to compel discovery, its motion did describe the efforts it had taken to resolve the issue in dispute. 264 Kan. at 540–41. Moreover, when awarding sanctions for discovery abuse, neither the Board of Tax Appeals nor the district court made specific findings that the taxpayer made a good faith effort to obtain disclosure. Because the taxpayer's good faith effort was clear from the record, however, our Supreme Court found that the district court did not err when it awarded the taxpayer the costs of its motion to compel, under K.S.A.1997 Supp. 60–237, including attorney fees. 264 Kan. at 541. Jackson's good faith efforts are clear from the record on appeal.
In conclusion, we hold that Judge Svaty did not abuse his discretion when he entered a default judgment against Cary as a sanction for discovery abuse. As stated in Deutsche Bank Nat'l Trust Co., “litigants and counsel may not engage in an obvious pattern of delay and harassment with impunity in Kansas courts. [Citation omitted.]” 44 Kan.App.2d at 869.
Affirmed.