DocketNumber： No. 99,506
Citation Numbers： 293 Kan. 633, 270 P.3d 1074
Judges： Biles, Greene, Johnson, Rosen
Filed Date： 12/23/2011
Status： Precedential
Modified Date： 9/8/2022
The opinion of the court was delivered by
This garnishment action, together with its voluminous appellate record, returns to this court for the third time. See Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65 (1997) (Americold I); Associated Wholesale Grocers, Inc. v. Americold Corp., 266 Kan. 1047, 975 P.2d 231 (1999) (Americold II). Accordingly, we will refer to the current appeal as Americold III.
The appellant in Americold III is the garnishee, Northwestern Pacific Indemnity Company (NPIC). The appellees/cross-appellants are the plaintiffs in the garnishment action below (hereafter referred to as Plaintiffs). In that garnishment action, Plaintiffs were seeking to collect the consent judgments they had previously obtained in settlement of their tort actions against Americold. The
NPIC appeals the district court’s adverse rulings on the issues that were remanded by Americold I, which focused principally on two questions: (1) whether NPIC had acted in bad faith toward its insured, Americold; and (2) whether the consent judgments between Plaintiffs and Americold were reasonable and in good faith. However, the parties also raise jurisdictional issues, one of which is NPIC’s contention that the underlying judgments against Americold were extinguished pursuant to K.S.A. 60-2403, thus depriving the district court of subject matter jurisdiction to proceed with this garnishment action. Finding in favor of NPIC on that issue, we reverse the district court and remand with instructions to dismiss these garnishment proceedings.
Factual and Procedural Overview
Given that we are not reaching the merits of NPIC’s issues of bad faith or the reasonableness of Americold’s setdement, we need not set forth a detailed recitation of the facts. In Americold II, Justice Six provided a summary of what had transpired prior to that 1999 Supreme Court ruling. His recitation will serve our purposes, except that we would note that Justice Six referred to the Plaintiffs as “Associated,” which we have modified to “Plaintiffs” here for clarity:
“Our background journey requires a brief return to Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65 (1997) (Americold I). Americold I involved lawsuits arising out of a fire in Americold’s 170 acre underground cold storage facility. Americold had primary general liability coverage for tenant claims of $1 million through National Union Fire Insurance Company (National Union), with $25 million excess coverage through NPIC. TIG Insurance Company (TIG) provided $15 million excess coverage to National Union and NPIC. National Union eventually tendered the $1 million policy limit to plaintiffs, who were various tenants and their subrogated insurers, referenced here as [Plaintiffs].
“Although the fire burned only a part of the stored goods, smoke and other contaminants discharged by the fire damaged other goods stored in the facility. NPIC disclaimed coverage, reasoning that the claimed damages were excluded by the policy’s pollution exclusion.
*636 “Concluding that NPIC and TIG were denying coverage, Americold negotiated a settlement with [Plaintiffs]. The settlement included consent judgments totalling. $58,670,754, a covenant by [Plaintiffs] not to execute against the assets of Americold, and an assignment of Americold’s claims against its excess insurers, NPIC and TIG. After the settlement, [Plaintiffs] filed a garnishment action against NPIC. The district court granted summary judgment in favor'of [Plaintiffs], We reversed. TIG settled while Americold I was on appeal. Material issues of'fact remained ‘as to the good faith and reasonableness of the settlement amount resulting in the consent judgments, the excess insurer’s bad faith in denial of coverage and rejection of settlement within the policy limits, and the liability of the excess insurer for tire judgments over policy limits.’ 261 Kan. 806, Syl. ¶ 15. We held, however, that the pollution exclusion in the NPIC policy did not exclude-coverage. 261 Kan. at 811.” 266 Kan. at 1048-49.
Upon remand to the district court, the parties engaged in extensive discovery for a number of years. Ultimately, in tire fall of 2005, the district court conducted a 10-week bench trial on the remand issues identified by Americold I.
On January 10, 2006, the court conducted a hearing on NPIC’s motion to dismiss, in which the garnishee contended that the consent judgments entered in 1994 and 1995 had become dormant and extinguished pursuant to the provisions of K.S.A. 60-2403 and K.S.A. 60-2404. Therefore, NPIC argued, without valid judgments for Plaintiffs to collect, tire district court did not have subject matter jurisdiction to proceed with a garnishment action. By journal entry filed January 19, 2006, the district court overruled the motion, finding that enforcement of the consent judgments had been stayed or prohibited within the meaning of K.S.A. 60-2403(c) and that the Supreme Court’s remand with directions stayed the time provisions of the dormancy and revivor statutes and prohibited Plaintiffs from executing on their judgments.
A little over a year later, on February 16, 2007, the district court filed a journal entry describing its rulings on the various issues. On the principal issues, the court found that the settlement agreement between the Plaintiffs and Americold represented a reasonable, good faith settlement and that NPIC’s denial of coverage was in bad faith, as was its refusal to participate in the settlement conferences and its refusal to settle Plaintiffs’ claims within policy limits. The trial court found NPIC hable for the entire amount of the
NPIC filed a notice of appeal, the particulars of which will be discussed below. Plaintiffs cross-appealed, claiming the district court erred in denying their claim for punitive damages and complaining about the trial court’s exclusion of an exhibit. Upon motion by NPIC, the appeal was transferred from the Court of Appeals to the Supreme Court. See K.S.A. 20-3017.'
Jurisdictional Questions
Notice of Appeal
The Plaintiffs filed a motion to dismiss the appeal based on alleged flaws in NPIC’s notice of appeal. Specifically, Plaintiffs contend: (1) The caption on tire notice of appeal only identified the case involving The Fleming Companies, Inc.; and (2) the notice of appeal only purported to seek review of the journal entries of final judgment filed on August 27 and 28, 2007.
A. Standard of Review
“It is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal.” Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d 598 (1994). Moreover, jurisdictional questions are questions of law subject to unlimited appellate review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
B. Analysis
The caption on the notice of appeal uses the plural, “Plaintiffs,” and identifies those plaintiffs as “THE FLEMING COMPANIES, INC., et al.” The abbreviation “et al.” means “[a]nd other persons.” Black’s Law Dictionary 632 (9th ed. 2009). Granted, the caption includes the case number that was assigned only to The Fleming
In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326-27, 411 P.2d 616 (1966), we applied a liberal construction and “found that the failure to name the court appealed to was not a ground for dismissal but an irregularity to be disregarded unless the appellee has been misled.” Hess, 254 Kan. at 720. Even the statute governing the content of the notice of appeal provides that an appellant’s failure to serve notice of appeal on all other parties “does not affect the validity of the appeal.” K.S.A. 60-2103(b). Accordingly, we find that the notice of appeal in this case was sufficient to identify the consolidated case being appealed and thus invoked the jurisdiction of the appellate court on all plaintiffs’ judgments.
Next, Plaintiffs point out that the notice of appeal identifies the judgments from which NPIC appeals as the journal entries of final judgment dated August 27, 2007, and the amended journal entry of final judgment dated August 28, 2007. Plaintiffs contend that the notice of appeal has not invoked our jurisdiction to review the district court’s denial of NPIC’s motion to dismiss because the district court memorialized that ruling in a journal entiy file-stamped January 19, 2006. Moreover, Plaintiffs point out that NPIC’s notice of appeal did not contain a catch-all phrase, such as stating the appeal is “ "from each and every order entered contrary to [appellant],’ ” which we found persuasive in Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, 128, 960 P.2d 746 (1998).
The journal entries of final judgment to which the notice of appeal refers are those the district judge ordered Plaintiffs to prepare, setting forth the amount that NPIC owed each plaintiff in the garnishment action, as of the date of the court’s order finding
Moreover, Plaintiffs’ challenge to tire judgment extinguishment issue fails on a more fundamental level. The amounts of judgments in the listed journal entries of August 27 and 28, 2007, are actually the amount of tort damages that Americold then owed to each plaintiff upon the judgments to which Americold consented in order to settle the Plaintiffs’ consolidated action against Americold. Because this was a garnishment action, i.e., m action to collect the judgments against Americold, NPIC could only be subject to a judgment for the amount of NPIC’s indebtedness to Americold under the excess liability insurance contract. See K.S.A. 60-721(a)(4) (in garnishment proceeding court can render judgment against garnishee for amount of indebtedness to the defendant or value of defendant’s property held by garnishee). If the consent judgments against Americold were extinguished, then Americold no longer had a legal liability to the Plaintiffs for which NPIC would have been contractually obligated to pay on behalf of Americold. In other words, if the underlying judgment against Americold was extinguished, NPIC was no longer indebted to Americold, and there was no subject matter for Plaintiffs’ garnishment action.
To reiterate, without Americold’s legally enforceable judgment debt to the Plaintiffs, the district court would not have subject matter jurisdiction to enter a judgment in favor of the Plaintiffs against NPIC as garnishee. It would not matter that the notice of appeal did not mention the district court’s earlier ruling on NPIC’s motion to dismiss, because parties cannot confer subject matter jurisdiction on the district court by consent, waiver, or estoppel. See Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773, 148 P.3d 538 (2006). Moreover, if the district court lacked jurisdiction
Extinguishment of Consent Judgment
NPIC’s argument, hinges entirely upon its contention that the Plaintiffs’ consent judgments against Americold had become dormant and extinguished pursuant to K.S.A. 60-2403 and K.S.A. 60-2404.
A. Standard of Review
Our review will rely heavily on interpreting the provisions of our dormancy and reviver statutes. The legal questions posed are subject to unlimited review and we need not defer to the trial court’s statutory interpretation or construction. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
B. Analysis
We begin with a recitation of the relevant portions of the applicable statutes. K.S.A. 60-2403 addresses when a judgment becomes dormant and when it must be released of record. It provides in relevant part:
“(a)(1) Except as provided in subsection (d), if a renewal affidavit is not filed or if execution, including any garnishment proceeding, support enforcement proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, including judgments in favor of the state or any municipality in the state, or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a hen on the real estate of the judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.
*641 “(2) A ‘renewal affidavit’ is a statement under oath, signed by the judgment creditor or the judgment creditor’s attorney, filed in die proceedings in which the judgment was entered and stating die remaining balance due and unpaid on the judgment.
“(c) The time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited.” K.S.A. 60-2403(a)(l), (a)(2), (c).
K.S.A. 60-2404 provides for the revivor of a dormant judgment. Deleting the portions applicable to child support judgments, the revivor provisions are:
“A dormant judgment may be revived and have the same force and effect as if it had not become dormant if the holder thereof files a motion for revivor and files a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of die motion shall be given as for a summons under article 3 of this chapter. If the motion for revivor was filed within two years after the date on which the judgment became dormant..., on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon tire execution shall issue forthwith. ... A judgment may also be revived by the fifing of a written stipulation of revivor signed by all of the parties affected thereby. For the purpose of this section, . . . any attachment or garnishment process shall have die same effect as tire issuance of an execution.” K.S.A. 60-2404.
In DeKalb Swine Breeders, Inc. v. Woolwine Supply Co., 248 Kan. 673, 677, 809 P.2d 1223 (1991), we provided the following overview:
“The operation of tírese statutes has been explained as follows:
‘In Kansas, under these statutes, a party may, by the issuance of an execution every five years, keep a judgment alive indefinitely. The judgment remains in force without execution for five years, and the plaintiff may revive it at any time within two years if it has become dormant thereafter, so drat a plaintiff may neglect his judgment for seven years, lacking a day, and then revive it and put it in force for five years more.’ (Emphasis supplied.) Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 407-08, 661 P.2d 1242, cert. denied 464 U.S. 936 (1983).”
The last garnishment on any of the consent judgments was served on NPIC on January 4, 1995. Subsequently, Plaintiffs did not issue any other execution or file any renewal affidavit on the
In denying NPIC’s motion to dismiss, the district court found
“that the timing provisions of K.S.A. 60-2403 and K.S.A. 60-2404 do not apply to the judgments at issue because pursuant to K.S.A. 60-2403(c) the time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited.”
Additionally, the district court found that the remand directions from the Supreme Court had the effect of prohibiting Plaintiffs from executing on their consent judgments and, therefore, the remand mandate effectively stayed the time provisions of the dormancy and revivor statutes. A majority of this court disagrees with the district court’s holdings; the dissent would affirm the district court.
At the time the Plaintiffs obtained their consent judgments and commenced this garnishment action, they had the benefit of this court’s decision in DeKalb, which had interpreted and applied the provisions of K.S.A. 1990 Supp. 60-2403(a) and K.S.A. 1990 Supp. 60-2404. The version of K.S.A. 60-2403 interpreted in DeKalb contained the amendments from 1990 Senate Bill 527, which included the addition of the tolling provisions of subsection (c) relied upon by the district court. See L. 1990, ch. 207, sec. 2. Therefore, what should have been of particular interest to the Plaintiffs as they litigated this garnishment action was DeKalb’s specific finding that “[t]he language of K.S.A. 1990 Supp. 60-2403 is such that the pending garnishment proceeding does not toll the [dormancy statute] time period.” 248 Kan. at 678. Accordingly, a closer look at DeKalb is appropriate.
In DeKalb, judgment was entered against the defendant on June 14, 1982, for damages to DeKalb’s hogs as a result of a motor vehicle accident. On January 7,1983, an order of garnishment was issued against Hartford Fire Insurance Company, the defendant’s
Looking at the statutory language, the DeKalb court was persuaded that the words, “issued” and “undertaken,” manifested a legislative intent that the dormancy time limit clock commences or recommences “to run from the date garnishment or execution is issued and not from the date the garnishment or execution proceeding is completed.” 248 Kan. at 680. That determination led to the holding in DeKalb which is fatal to the Plaintiffs’ cause, notwithstanding the factual distinctions they assert in this case, which is that the continued pendency of a garnishment proceeding does not toll the time provisions of K.S.A. 60-2403(a). The fact that the garnishment matter has been appealed and remanded to the district court during its pendency adds nothing to the equation. To stop and restart tire dormancy time provisions, another execution or garnishment must issue or a renewal affidavit must be filed.
To the contrary, the district court apparently believed that a remand from the Supreme Court in an ancillary dispute between a judgment creditor and a garnishee has the legal effect of prohibiting fhe judgment creditor from taking any other action to execute on the underlying judgment, such as issuing a garnishment to some other third party who might be indebted to or possess the property of the judgment debtor. The district court did not cite to any legal authority or offer any explanation for its conclusion that a judgment creditor is prohibited from pursuing collection of its judgment from more than one available source at a time. Certainly, that notion does not reasonably flow from the DeKalb opinion.
Throughout its opinion, the DeKalb court referred to the characteristics of a garnishment action. For instance, after reciting the
Americold I was a garnishment action, i.e., an action directed at NPIC and not against Americold. Neither of the parties in the tort action appealed the entry of the consent judgments. Accordingly, tire efficacy of the judgments — as between Plaintiffs and Americold — could not and should not have been determined in the garnishment litigation. The only issue with respect to the consent judgments which Americold 1 could direct the district court to resolve was whether the judgments were reasonable when viewed from the perspective of the garnishee, NPIC. The answer to that question would affect the enforceability of the judgments against the garnishee, but the remand in Americold I did not overturn the underlying consent judgments or effect a stay of their enforceability against anyone else. Of course, when Americold I was remanded in March 1997, a dormancy which would occur in January 2000 was not an immediate concern.
Moreover, the collusion inquiry directed by Americold I was necessarily limited to whether fraud was perpetrated upon Americold’s excess insurance carriers. For those garnishees, it is the consent judgment that creates the property interest being garnished. If the consent judgments are invalid, Americold is not legally hable to pay the Plaintiffs any money. Without Americold being legally liable to the Plaintiffs, NPIC owes no money on its insurance contract with Americold. Without an obligation to pay benefits under the insurance policy, NPIC is not holding any property of and is not indebted to Americold. In simple terms, NPIC only owed the Plaintiffs if Americold owed the Plaintiffs. In contrast, other garnishees, such as a bank in which Americold had deposited money, would not have their own money in jeopardy and would be totally unconcerned with the bona fides of the consent judgments in the event of a garnishment action by the Plaintiffs. In short, there was
Therefore, nothing in the Americold I remand precluded Plaintiffs from keeping their judgments alive through execution on other assets of Americold. Granted, Plaintiffs had contracted with Americold to refrain from such other executions or garnishments. However, a creditor that voluntarily agrees with a debtor to forego enforcement of the judgment by legal process against certain assets of the debtor is not legally “prohibited” from taking such action, as contemplated in K.S.A. 60-2403(c). The private agreement may be enforceable by the debtor, but it does not automatically destroy a district court’s subject matter jurisdiction to entertain a garnishment or execution proceeding. Rather, subsection (c) obviously contemplates the circumstance where any legal process to enforce a judgment is expressly stayed or prohibited by law, such as the automatic stay in the federal Bankruptcy Code, 11 U.S.C.A. § 362 (2011). We are confident the legislature did not intend to permit parties to circumvent the dormancy and revivor time limits by voluntarily agreeing that the judgment creditor would only file a garnishment proceeding against specified assets of the judgment debtor. It would be uncharacteristic for the legislature to permit the tail to wag the dog.
While we are discussing the nature of the property right being garnished, we pause to observe that Americold’s assignment to the Plaintiffs of its rights against NPIC does not obviate the need to determine whether the consent judgments became dormant and were extinguished, nor does it give rise to a cause of action that is independent of the consent judgments. The “right” Americold had to assign to Plaintiffs was its right to enforce NPIC’s contractual obligation under the liability insurance policy to pay such damages as Americold was legally hable to pay to third parties because of its negligent actions. In this instance, the amounts of damages for which Americold was legally liable were established and memorialized in the consent judgments. If the judgments became dormant and were not revived, then Americold’s legal liability to Plaintiffs
The Plaintiffs also made the alternative argument that the time limit in K.S.A. 60-2403(a) is a statute of hmitation, which under K.S.A. 60-208(c) is an affirmative defense that NPIC was required to plead. Therefore, Plaintiffs assert that NPIC has waived the dormancy defense by failing to appropriately plead it.
A similar argument was made in DeKalb, where the court differentiated between “an action on a judgment and an execution or garnishment,” specifically stating that “a garnishment is not considered a cause of action — it is referred to as an ancillary or auxiliary proceeding.” 248 Kan. at 680. Accordingly, DeKalb rejected the argument that the time limit for dormancy is analogous to a statute of hmitations for a cause of action. 248 Kan. at 680.
Perhaps more specifically, a decade prior to DeKalb our Court of Appeals looked at the historical treatment of dormancy and revivor statutes in this and other states and distinguished those statutes from ordinary statutes of limitation by declaring that ‘[rjevivor statutes demand strict compliance and allow for no exceptions.” Clark v. Glazer, 4 Kan. App. 2d 658, 660, 609 P.2d 1177 (1980). Glazer specifically held:
“Cases cited by plaintiff dealing with equitable estoppel as precluding a defendant from asserting an ordinary statute of limitation are not applicable here. By virtue of [K.S.A. 60-2403], after seven years of inaction by plaintiff her judgment was extinguished, and there was nothing left to which equitable principles could be applied. This declaratory judgment action cannot be used to revive a judgment long dead, and the trial court therefore erred in holding otherwise.” 4 Kan. App. 2d at 660-61.
Granted, when Glazer was decided, the tolling provision in K.S.A. 60-2403(c) was not part of the dormancy statute; that provision was added in 1990. Further, DeKalb applied the 1990 version of K.S.A. 60-2403, but did not specifically discuss the tolling
In conclusion, we hold that when the district court entered its judgment against NPIC in this garnishment proceeding, the Plaintiffs’ underlying consent judgments against Americold had been extinguished by operation of the dormancy and revivor statutes, K.S.A. 60-2403 and K.S.A. 60-2404. Because Americold was not legally obligated to pay an unenforceable judgment, NPIC was no longer indebted to Americold under its contract to pay the judgments for which Americold was legally hable. Accordingly, without an indebtedness from NPIC to Americold, the district court lacked subject matter jurisdiction to grant Plaintiffs judgment against NPIC in a garnishment proceeding. Therefore, we reverse the district court and remand with directions to dismiss these garnishment proceedings.
Motions for Attorney Fees
Following oral argument, the court received two motions for attorney fees and expenses on appeal: one filed on behalf of appellees/cross-appellants Kraft Foodservice, Inc. and Safeway, Inc. requesting a total award of $323,512.67; and the other filed on behalf of appellees/cross-appellants Conagra, Inc., Swift-Eckrich, Inc., The Fleming Companies, Inc., Institute of London Underwriters, and Commerce and Industry Insurance Company requesting a total award of $434,599.44. NPIC responded to the motions, arguing that a portion of the claims were not authorized.
Given our disposition of this appeal, we deny the appellees’ motions for attorney fees and expenses on cross-appeal.
Reversed.
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