Opinion
111,418.
05-29-2015
JORDAN PATTERSON AMERICAN LEGION POST # 319, Plaintiff, (Dan E. Turner and Phillip L. Turner), Appellants, and Charles Yunker, Adjutant, American Legion Kansas Department, Intervenor/Appellee, v. QUALITY CONTRACTORS, L.L.C., 15th Street Investments, LLC, Jerry Pritchard, James R. Anderson, Verdell Bugg, Capital Title Insurance Company, LC, Deanna M. Zimmerman, and Commerce Bank & Trust Company, Appellees.
Dan E. Turner and Phillip L. Turner, appellants pro se. Paul D. Post, of Topeka, for appellees Charles Yunker, Adjutant, American Legion Kansas Department, Verdell Bugg, and Estate of James Anderson. Vincent M. Cox, of Cavanaugh & Lemon, P.A., of Topeka, for appellees 15th Street Investments, LLC and Commerce Bank & Trust Company. James B. Biggs, of Cavanaugh & Lemon, P.A., of Topeka, for appellees Capital Title Insurance Company, LC and Deanna M. Zimmerman. Stephen D. Lanterman and Martha A. Peterson, of Sloan Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, for appellees Quality Contractors, LLC and Jerry Pritchard.
Dan E. Turner and Phillip L. Turner, appellants pro se.
Paul D. Post, of Topeka, for appellees Charles Yunker, Adjutant, American Legion Kansas Department, Verdell Bugg, and Estate of James Anderson.
Vincent M. Cox, of Cavanaugh & Lemon, P.A., of Topeka, for appellees 15th Street Investments, LLC and Commerce Bank & Trust Company.
James B. Biggs, of Cavanaugh & Lemon, P.A., of Topeka, for appellees Capital Title Insurance Company, LC and Deanna M. Zimmerman.
Stephen D. Lanterman and Martha A. Peterson, of Sloan Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, for appellees Quality Contractors, LLC and Jerry Pritchard.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dan E. Turner and Phillip L. Turner personally appeal the district court's denial of their attorney lien and expenses based on a contingency fee contract with Kenneth Hill and others members (Hill) of the Jordan Patterson Legion Post No. 319 (the Post). Commander James R. Anderson and others, on behalf of the Post, sold the Post real property about 1 year earlier to Quality Contractors, LLC (Quality), after the Post membership, based on notice, voted to sell it. Hill hired the Turners to initiate a quiet title action to set aside the sale of the property. The district court denied Hill's requested relief and also found Turner's contingent fee contract had nothing to attach to since Hill's petition to set aside the sale and other claims was denied. Hill has not appealed the denial of those adverse rulings. We have no jurisdiction over this appeal, and we dismiss the appeal.
Facts
The underlying facts were previously set out in great detail in Jordan Patterson American Legion Post No. 319 v. Quality Contractors, L.L.C., No. 105,886, 2012 WL 1450491 (Kan.App.2012) (unpublished opinion). We see no reason to repeat them here, except to acknowledge certain facts when necessary for this opinion.
The prior panel dismissed the appeal and remanded the case to the district court. 2012 WL 1450491, at *4. The matter is now back before us based on the district court's decisions after the remand.
On remand, the district court considered whether Hill, on behalf of the Post, still had standing to prosecute claims on behalf of the Post, ultimately concluding “any and all property interests of Post # 319 devolved ... to the Kansas American Legion.” The district court also considered whether the Turners had a valid attorney lien on the sale proceeds. The district court found the Turners' “proffered contract [was] clearly one for a contingent fee and, of course, by the Court's ruling in June 2010, the sale was not set aside and no damage recovery was had.” The district court was not persuaded by the Turners' claim that their failure to set aside the sale amounted to a “recovery” for their client, as the $120,000 check was still in the custody of Anderson when Hill filed the lawsuit. The Turners claim their efforts caused the check to be placed into an escrow account until further order of the court.
The Turners filed a motion for reconsideration, informing the district court the original check drawn from Capital Title Insurance Company's escrow account became void 180 days after issuance. Because the check was not reissued until after the Turners filed their lawsuit, they argued it was only through their actions that Hill was able to recover the sale proceeds and, therefore, the Turners were consequently entitled to their attorney lien.
The Kansas American Legion filed a responsive pleading, urging the district court to deny the Turners' motion for reconsideration because the Turners' contingent fee agreement did not allow for recovery, the case had been pending “entirely too long,” and “it is time to have the matter put to bed.”
On January 31, 2014, the district court entered its final judgment. The district court found “the named Plaintiff, or those purporting to act on behalf of the named Plaintiff, never established any authority to act for the Post during the period under scrutiny in regard to the sale.” The district court denied the Turners' motion for reconsideration, allowed Anderson and Verdell Bugg their attorney fees from the proceeds, and confirmed that Post 319 no longer had any standing:
“Certainly, no facts were proffered post-appeal to suggest that Post # 319 has proper standing or, for that matter, impeach its standing at any point afterwards, except as it relates to the fact of the Post's dissolution. Nevertheless, whatever standing may or may not have once existed, standing now resides with the Kansas American Legion, which clearly has assumed ownership of the proceeds from the sale of the Post.”
The Turners timely filed a notice of appeal that indicated they were appealing on their own behalf, not on behalf of a party.
Analysis
Was Summary Judgment Appropriate?
The Turners make three interrelated arguments attacking the validity of the sales contract. They argue the district court erred in granting summary judgment in favor of the defendants and the denial of their attorney lien where: (1) the sales contract expired; (2) the sales contract was not approved at a membership meeting; and (3) the contract was unsupported by adequate consideration. Each of the various defendants argued the Turners lack standing to appeal.
The interpretation and legal effect of written contracts involve questions of law subject to unlimited review. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). This court's standard of review on motions for summary judgment is well known:
“ ‘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 where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013).
However, prior to addressing the merits of the Turners' arguments, this court must determine whether the Turners have standing to appeal. An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012).
“Standing is a jurisdictional question whereby a court determines whether a person has alleged such a personal stake in the outcome of the controversy as to warrant invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf. [Citation omitted.] Standing implicates the court's jurisdiction to hear a case, and therefore[ ] the existence of standing is a question of law over which an appellate court has unlimited review. [Citation omitted.]” Turner v. Steele, 47 Kan.App.2d 976, 985, 282 P.3d 632 (2012).
In Steele, a panel of this court considered “whether a nonparty may seek relief in the proceeding to which it was not made a party.” 47 Kan.App.2d at 985. After discussing the merits of competing arguments, the panel ultimately concluded a group of landowners had standing to seek a delay of a sheriff's sale even though they ordinarily could not show standing to participate in the underlying contract dispute that gave rise to the judgment-holder's ability to enforce a lien on the property. The panel noted the proceeding “clearly affected the Landowners' title in a significant manner,” for example by putting a “cloud on their title or otherwise negatively affect[ing] their title to real property. [Citation omitted.]” 47 Kan.App.2d at 988.
In this case, the Turners do not argue they have a personal stake in the outcome of the controversy of the quiet title action that they filed as attorneys for Hill. They do not make a showing that their rights are in any way affected by the district court's granting of summary judgment against Hill. The Turners' only effort to explain why they appealed this issue is an attempt to argue they secured a favorable outcome for Hill and their attorney lien attached to the proceeds held in escrow. “The Turners [sic ] basis for their appeal is that either the sales contract was not valid and therefore there was a positive recovery or because of the filing of the lawsuit [they] were successful in recovering the purchase price.” But they make no attempt to explain how or why the two arguments are related, especially where the underlying quiet title action was decided adverse to Hill.
Here, the Turners are appealing the denial of their attorney lien and have not appealed the basis of the district court's finding that the Post was no longer a viable interest or that Hill had authority to retain them through a contingency fee agreement on behalf of the Post. The district court found the Turners' efforts in this matter returned no benefit to the Post for the lien to attach to. Thus, there was no recovery for the contingency fee contract to attach to. The Turners' notice of appeal is limited to the denial of its attorney lien. The Turners' notice of appeal fails to mention Hill or that they have authority to appeal the district court's determination that no recovery beneficial to Hill was obtained. The Turners have not appealed the district court's determination granting quiet title to the property which was adverse to Hill's claims.
Conclusion
For the reasons herein stated, we deem it unnecessary to address the other issues raised by the Turners, and we decline to do so. The Turners have failed to show we have jurisdiction to hear their claim since they have not appealed the district court's factual determinations adverse to Hill's interest. Thus, the decision of the district court is final. There was no recovery for Hill on behalf of the Post and, thus, nothing for the Turners' attorney lien to attach. With our finding we have no jurisdiction, we dismiss the appeal.