Opinion
No. 108,521.
2013-07-19
WELLS FARGO BANK, N.A., Appellee, v. Roy B. BOWERS and Sheila A. Bowers, Appellants.
Appeal from Shawnee District Court; Franklin R. Theis, Judge. Donna L. Huffman, of Law Office of Donna L. Huffman, of Oskaloosa, for appellants. Thomas E. Nanney, of Bryan Cave LLP, of Kansas City, Missouri, for appellee.
Appeal from Shawnee District Court; Franklin R. Theis, Judge.
Donna L. Huffman, of Law Office of Donna L. Huffman, of Oskaloosa, for appellants. Thomas E. Nanney, of Bryan Cave LLP, of Kansas City, Missouri, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM:
On January 6, 2011, Wells Fargo Bank, N.A. (Wells Fargo) filed a pleading entitled “Motion for Order of Dismissal” with the clerk of the district court. Eight days later, Roy and Sheila Bowers (the Bowers) filed (1) an answer and counterclaim and (2) a response to Wells Fargo's motion to dismiss. The Bowers allege the district court erred in finding that Wells Fargo dismissed the underlying case when it filed its motion to dismiss because Wells Fargo never served a copy of the dismissal on them. We disagree and affirm the district court.
Factual and Procedural History
On December 20, 2010, Wells Fargo filed a foreclosure action against the Bowers; the petition was served on December 23, 2010. On January 3, 2011, Donna Huffman entered her appearance as counsel for the Bowers. Three days later, on January 6, 2011, Wells Fargo filed a pleading entitled “Motion for Order of Dismissal,” dismissing the case and stating: “there is litigation pending regarding the mortgage which is the subject of foreclosure. No parties have filed an answer herein.” The next day, Jennifer Donnelli, counsel for Wells Fargo, notified Huffman via e-mail that the underlying foreclosure action was dismissed. Huffman responded to Donnelli's e-mail, stating, “Thank you for the courtesy of advising of the motion to dismiss as it seems Linda Mock was allowing me to continue drafting the answer and counterpetition.” On January 13, 2011, the district court sent a letter to counsel for Wells Fargo, Wendy Green, advising that this case “has been placed on our calendar for setting or dismissal.”
On January 14, 2011, the Bowers filed their answer and counterclaim alleging conversion, and violations of the Kansas Consumer Protection Act. They also filed a response to the motion to dismiss, alleging that the district court had jurisdiction to hear the matter because the Bowers were granted an extension of time to file their answer.
On February 4, 2011, the Bowers filed a motion to amend and an amended answer and counterclaim alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Real Estate Settlement Procedures Act, violation of the Truth in Lending Act, breach of fiduciary duty, negligence, slander of credit, conversion, fraud/misrepresentations, outrageous conduct causing severe emotional distress, and violations of the Kansas Consumer Protection Act.
On February 7, 2011, Linda Mock, counsel for Wells Fargo, sent a letter to Judge Theis outlining Wells Fargo's argument on its motion to dismiss. The court treated the letter as a brief in support of the motion to dismiss and permitted the Bowers to file a response. On March 4, 2011, the Bowers filed a Reply to the Letter Brief on Wells Fargo's Motion to Dismiss, alleging that their counterclaim was pled prior to service of Wells Fargo's motion to dismiss and, thus, should survive dismissal.
On March 19, 2012, the Bowers filed their second motion to amend, seeking to amend their first amended answer and counterclaim, alleging that their first amended answer and defenses were irrelevant because Wells Fargo had dismissed the State action then brought the same action through intervention in federal court.
On March 23, 2012, the district court held a telephone conference call to determine whether Wells Fargo's motion to dismiss ipso facto dismissed the case. The court held that the case was dismissed upon the filing of Wells Fargo's motion to dismiss as no case existed at the time the Bowers filed their answer and counterclaim. The court asked Wells Fargo's attorney to prepare a journal entry and send it to the Bowers' attorney under the 10–day rule.
On April 2, 2012, the Bowers filed a Premature Notice of Appeal of the March 23, 2012 decision. Two days later, Wells Fargo submitted a proposed Administrative Order regarding the dismissal to the district court and to the Bowers' counsel.
On April 9, 2012, the district court entered the Administrative Order, finding that “the case was dismissed upon the filing by [Wells Fargo] of its Motion to Dismiss on January 6, 2011, the Court hereby directs the Clerk of the Court to close its file.”
On May 1, 2012, the Bowers filed a motion to set aside or amend the Administrative Order entered by the court on April 9, 2012. The motion sought relief pursuant to K.S.A.2012 Supp. 60–260(b)(3)—misrepresentation or misconduct by the adverse party—and K.S.A.2012 Supp. 60–211 sanctions. The motion alleged that Wells Fargo submitted a proposed order to the judge falsely representing it was submitted with the Bowers' approval. On May 10, 2012, Wells Fargo filed a response to the Bowers' motion to set aside or amend, alleging that the Administrative Order was not a judgment so Supreme Court Rule 170 (2012 Kan. Ct. R. Annot. 267) was not applicable.
On June 25, 2012, the district court denied the Bowers' motion to set aside or amend the Administrative Order. The Bowers filed a notice of appeal of the court's March 23, 2012, and June 25, 2012, decisions on July 27, 2012.
Was Wells Fargo's Dismissal Effective upon Filing?
The Bowers argue that they are entitled to proceed with their counterclaims against Wells Fargo because Wells Fargo never served its motion to dismiss. Conversely, Wells Fargo argues that its motion to dismiss was effective upon filing and no service was required.
Standard of review
Both parties agree on the standard of review. Interpretation of a statute is a question of law over which this court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193,221 P.3d 1130 (2009). With regard to statutory construction, the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
Analysis
K.S.A.2012 Supp. 60–241 governs dismissals and provides in pertinent part:
“(a) Voluntary dismissal. (1) By the plaintiff (A) Without a court order. Subject to subsection (e) of K.S.A. 60–223, K.S.A. 60–223a and K.S.A. 60–223b, and amendments thereto, and any applicable state statute, the plaintiff may dismiss an action without a court order by filing:
“(i) A notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
“(ii) a stipulation of dismissal signed by all parties who have appeared. When the dismissal is by stipulation, the clerk of the court must enter an order of dismissal as a matter of course.” (Emphasis added.)
The ordinary meaning of the verb “file,” as used in K.S.A.2012 Supp. 60–241(a)(1)(A), is “[t]o deliver a legal document to the court clerk or record custodian for placement into the official record.” Black's Law Dictionary 704 (9th ed.2009). See City of Overland Park v. Nikias, 209 Kan. 643, 647, 498 P.2d 56 (1972) (“The word ‘file’ contemplates the deposit of a writing with the proper official.”); Rathburn v. Hamilton, 53 Kan. 470, 474, 37 P. 20 (1894) (“A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file.”).
Applying the definition of “filing” used by the court, Wells Fargo complied with K.S.A.2012 Supp. 60–241(a)(1)(A) by “filing” its Motion for Order of Dismissal with the clerk of the district court on January 6, 2011. At the time Wells Fargo filed its motion, the Bowers had not filed an answer or a counterclaim.
Moreover, our court has previously held that the substance of a document controls over its caption. Smith v. State, 22 Kan.App.2d 922, 925, 924 P.2d 662 (1996). While Smith involved a self-represented prisoner, other panels of our court have extended this holding to represented parties as well. See In re Estate of Heiman, 44 Kan.App.2d 764, 769, 241 P.3d 161 (2010) (district court should treat pleadings based upon their substance rather than how they are captioned or titled). Even though Wells Fargo captioned its pleading as a “Motion for Order of Dismissal,” the substance of the pleading was a notice of dismissal; therefore, the district court correctly treated it as a notice of dismissal filed pursuant to K.S.A.2012 Supp. 60–24l(a)(1)(A)(i).
Our court has also held that “when a document seeking dismissal is filed within the time frame set out in K.S.A. 60–241(a)(1), it will operate as an automatic dismissal of the action upon filing.” Smith, 22 Kan.App.2d at 926. Wells Fargo's dismissal operated as an automatic dismissal of the action. No further action was required.
Did the District Court Abuse Its Discretion in Denying the Bowers' Motion to Set Aside the Administrative Order Pursuant to K.S .A.2012 Supp. 60–260 When It Was Prepared Contrary to Supreme Court Rule 170?
The Bowers argue that the district court erred in failing to set aside the April 9, 2012 Administrative Order under K.S.A.2012 Supp. 60–260(b)(3) because it was prepared contrary to the court's direction on March 23, 2012, and contrary to Supreme Court Rule 170. The Bowers also allege that the district court failed to award sanctions under K.S.A.2012 Supp. 60–211 for Wells Fargo's various misrepresentations in securing the administrative order. In response, Wells Fargo argues that the Administrative Order acknowledging the dismissal was not a judgment and it was not required that it be prepared and entered pursuant to Supreme Court Rule 170. Additionally, Wells Fargo contends that the court no longer had jurisdiction to even enter an order because the case was dismissed when the motion to dismiss was filed.
Standard of review
A ruling on a motion to set aside or amend a judgment filed pursuant to K.S.A.2012 supp. 60–260 rests within the sound discretion of the trial court. This court will not reverse the trial court's finding unless an abuse of discretion is shown. Subway Restaurants, Inc. v. Kessler, 273 Kan. 969, 977, 46 P.3d 1113 (2002).
Analysis
The Bowers filed their motion to set aside or amend pursuant to K .S.A.2012 Supp. 60–260(b)(3), alleging that Wells Fargo's counsel engaged in misrepresentation or misconduct by failing to comply with Supreme Court Rule 170.
K.S.A.2012 Supp. 60–260(b) provides “the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or misconduct by an opposing party.”
Supreme Court Rule 170 provides:
“(a) Order; Content. When the court directs a party to prepare an order, the party must prepare the order in accordance with the court's directions. As used in this rule, ‘order’ includes a journal entry or other document containing a court ruling.
“(b) Duties of Party Preparing Order. A party directed to prepare an order must, not later than 14 days after the court's direction, unless the court specifies a different time:
(1) Serve on counsel of record and unrepresented parties not in default for failure to appear a copy of:
(A) the proposed order; and
(B) a notice that, unless an objection is received not later than 14 days after service of the proposed order, the order will be filed with the court; and
(2) file a certificate of service with a copy of the order and notice attached.”
A dismissal is effective upon filing, and the court is without jurisdiction to make any ruling after the plaintiff files its dismissal. Smith, 22 Kan.App.2d at 926. Any order or judgment entered after the dismissal was made is without jurisdiction and is void. See Ireland v. Byrne, No. 101,739, 2010 WL 348287, at *4 (Kan.App.2010) (unpublished opinion) (a district court loses authority over the parties' dispute upon the filing of plaintiff's notice of dismissal), rev. denied 291 Kan. 911 (2011); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th Cir.1987) (Federal Rule of Civil Procedure 41(a)(1)(i) dismissal strips a court of jurisdiction and terminates the case). But see D.C. Elecs., Inc. v. Nartron Corp., 511 F.2d 294, 298 (6th Cir.1975) (court retains authority to determine whether answer or motion for summary judgment filed prior to notice of dismissal).
In the case of In Re Marriage of Anjard, No. 103,426, 2011 WL 5389679, at *8 (Kan.App.2011) (unpublished opinion) rev. denied 294 Kan. –––– (2012), the husband argued that the sale of the divorcing couple's properties was compromised because the wife's “counsel repeatedly failed to comply with Supreme Court Rule 170 (2010 Kan. Ct. R. Annot. 249) by not sending journal entries to opposing counsel.” The Anjard panel held that even though the wife's counsel violated Supreme Court Rule 170, it did not prejudice the husband, and the failure to comply with Supreme Court Rule 170 was harmless because the journal entries were accurate. The panel noted that Supreme Court Rule 170 is designed to allow the court some assistance in memorializing court orders. Anjard, 2011 WL 5389679, at *8 (enforcement of rule is left to the sound discretion of the district court as its purpose is to provide assistance to the court); see Lyndon State Bank v. Price, 33 Kan.App.2d 629, 631–32, 106 P.3d 511 (2005).
At the March 23, 2012, hearing, the following exchange took place:
“THE COURT: For both—everybody's edification, I'm here strictly on the question whether I even have a case in front of me. And that's a question of whether or not the motion ipso facto dismissed the case.
....
“THE COURT: So all I'm finding here today is that it was dismissed upon filing Ms. Mock's motion, and no notice was required, and no case exists in 10–C–1808, and no case existed at the time you filed your counterclaim.
Do you want do [ sic ] a little journal entry, Ms. Mock?
“MS. MOCK: I will provide an order to clarify, Your Honor.
....
“THE COURT: Yeah, I'm not even sure I have jurisdiction to declare that there's no case, but—because there is no case.
“MS. MOCK: Honestly, Your Honor, probably a docket note is fine.
“MS. HUFFMAN: Your Honor, I need a journal entry because I'm going to have to
“MS. MOCK: Like I said, it was dismissed as of that date. Ms. Huffman continues to file things that weren't even here.
“THE COURT: Ms. Huffman wants it put it in a little journal entry, so we can. That shouldn't change anything. Do you mind doing one and sending it to her under the ten-day rule?
“MS. MOCK: I can do that, Your Honor.
“THE COURT: Okay. Well, my other inquiry was whether you had a statute of limitations problem or not because, you know, potentially I can order that these pleadings be filed, given a separate case number. But if there's no problem, I'd rather you re-issue.
“MS. HUFFMAN: I'm thinking that they should be able to be told
“THE COURT: In the grand scheme of things, maybe it will tumble to somebody else.
“MS. HUFFMAN: Yeah, well, I'm thinking that they should be told if we—you know, if we appeal the question of notice. So I don't think that we should be in a problem with that, Your Honor.
“THE COURT: All right. That's fine. They'll send you a journal entry under the ten-day rule.”
On April 4, 2012, Wells Fargo submitted an Administrative Order under cover letter to the court and the Bowers' counsel. The cover letter stated: “Following the conference call on March 23rd, we considered the form of the order and believe the enclosed Administrative Order is the most appropriate course.” On April 9, 2012, the district court signed the Administrative Order. On May 1, 2012, the Bowers filed a Motion to set aside or amend, which sought sanctions under K.S.A.2012 Supp. 60–211. On June 25, 2012, the district court entered an order denying the Bowers' motion:
“The Court determined that Plaintiff dismissed its case by its motion to dismiss filed January 6, 2011, requiring no further court action or order. At the time no answer or counterclaim had been filed. The order entered April 9, 2012, just acknowledged no case has been pending before this Court after June 6, 2011, [ sic ] over which it has jurisdiction. Similarly, the same can be said of Defendants' current motion.”
Here, the district court had jurisdiction to determine whether Wells Fargo filed its dismissal prior to the Bowers' answer and counterclaim. Once the court determined that Wells Fargo filed its dismissal prior to the Bowers' answer, the court no longer had jurisdiction to enter rulings. Any ruling entered after such a determination was void, and the court did not have jurisdiction to set it aside or amend it. Even though counsel for Wells Fargo essentially conceded that she did not circulate the Administrative Order to opposing counsel, the district court did not abuse its discretion when it denied the Bowers' request for K.S.A.2012 Supp. 60–211 sanctions because the court no longer had jurisdiction to render rulings in this case after the March 23, 2012, hearing. Additionally, counsel's failure to circulate the order did not prejudice the Bowers because the order accurately reflected the court's findings, and any error was harmless.
Affirmed.