In Re Lett & Jackson , 7 Kan. App. 2d 329 ( 1982 )

Abbott, J.,

concurring: Having authored Burch v. Dodge, 4 Kan. App.2d 503, 608 P.2d 1032 (1980), Í feel an obligation to express additional rationale for that decision. This court is duty-bound to follow Supreme Court decisions unless a valid reason exists to believe the Supreme Court would reach a different result if it were to reconsider the issue. Less than nine months before Burch was argued, the Supreme Court filed Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 598 P.2d 188 (1979). Although it has been argued by some members of this court that the holding in question is dicta, the disputed language is contained in the law of the case at syllabus ¶ 2, which states:

“In the absence of an objection first made in the trial court, omissions will not be fatal to a judgment since the trial court is presumed to have found all of the facts in issue necessary to support the judgment.”

I was troubled at first with that part of the Celco decision, because it did appear to be in conflict with Supreme Court Rule 165 (228 Kan. lxxxi). As I analyzed the problem, however, I became fond of the end result and stated in Burch at 507:

“We recognize that the Supreme Court in Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 369, 598 P.2d 188 (1979), appears to have held that a litigant must object to inadequate findings and conclusions at the trial level, which gives the trial court an opportunity to correct them; otherwise, an appellate court may presume the trial court found all of the facts necessary to support the judgment. This appears to be a good rule, as it allows a trial court an opportunity to correct a mistake by granting a new trial; and in the event a mistake was not made, the trial court speeds up the judicial process by supplying additional findings and conclusions of law so that appellate review can be had without the delay of remanding, which results in unnecessary expense to the litigants and wastes judicial time. However, findings are also for the benefit of the appellate courts, as the Supreme Court pointed out in Henrickson v. Drotts, 219 Kan. 435, 441, 548 P.2d 465 (1976), where it stated:

“ ‘The requirements of K.S.A. 60-252 and Rule No. 116 [now Rule No. 165, 225 Kan. lxxii] of this court are for the benefit of this court in facilitating appellate review. Waiver of such requirements is not within the rights of the parties or the authority of the court below.’

“The record in this case is not consistent with any findings we could presume the trial court made, and thus in the absence of adequate findings of fact and conclusions of law, we vacate the judgment insofar as it surcharges the trustee and remand the case for new findings. [Cites omitted.]”

Our trial courts are extremely busy and there is no relief in sight. The work load in trial courts in all probability will continue to increase, and judicial time will become even more precious to an already overextended trial bench. Having now had the opportunity to participate in more than 1,000 appellate decisions, I am satisfied that in most instances the findings of fact from the trial bench meet the spirit of Supreme Court Rule 165. There are, of course, glaring exceptions to the foregoing statement. In nearly all cases, the findings of fact give the parties adequate insight into how a decision was arrived at. Appellate judges, however, prefer surgically clean findings that remove all doubt on any issue raised by enterprising counsel. The problem is that this court (and, to some extent, trial counsel) deals in hindsight on appeals, whereas the trial court must deal with reality; the trial judge rarely suspects that the decision will be appealed, and, if so, what issues will be raised. As a result, the findings frequently do not cover the issues raised on appeal to the extent we would like. Trial judges do not have time available to make findings concerning every conceivable issue, and to force them to do so in every case would riot only halt the exemplary record they have achieved but also force them to considerably reduce their present output.

The alternative is to do what I attempted to do in Burch — and that is to have the best of two worlds in that appellate courts would have adequate findings to aid in reviewing the case on appeal, and the trial courts would have an opportunity to make adequate findings without being forced to make unnecessarily long ones in routine cases. It seemed to me when I authored Burch that the Supreme Court had that solution in mind when the decision was made in Celco. It seems to me not to place an undue burden on the trial bar to tell them that if they have a question concerning the adequacy of the findings of facts after the appeal has commenced, the time to clarify that question is then, not one to two years later when the case is remanded.

Remanding a case to the trial court for rehearing is such a waste of time for all concerned. The case is temporarily taken off our docket and we lose the opportunity to dispose of a pending appeal. Three judges have read the briefs and examined the records; staff time has been used, and considerable time has been expended both by our appellate clerk’s office and the district court clerk’s office. Then back comes the case on appeal, supported by new briefs and record, to be decided one or two years later. This all results in the litigants being frustrated with the legal system, in additional expenses and, worst of all to my way of thinking, in a delay to the prevailing parties receiving what is their due. I see no distinction between whether trial counsel requests specific findings in an area in issue or whether an appellate court requests the same thing at a much later time. In either event, the trial judge will know the findings are material to the issue on appeal, and justice will best be served by the trial judge being given an opportunity to make that finding at the earliest possible date.

I would, however, urge the Supreme Court to accept review of this or some similar case. At the present time, some panels of this court are routinely remanding cases to the trial court for additional findings of fact while others are following Celco and Burch. A decision reached in this court should not be governed by the composition of the panel that is assigned to hear and decide that particular case.