Northeast Comanche Tribe, Inc. v. Stumpf ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,642
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
NORTHEAST COMANCHE TRIBE, INC.,
and AVRAHAM SHILOH,
Appellees,
v.
CHRISTINA J. STUMPF, RONALD WARD,
MALCOM DICKINSON, and PETER C. MORSE,
Appellants.
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed October 7, 2022.
Affirmed.
Marc S. Wilson, of Securitas Financial Law, LLC, of Overland Park, Scott E. Sanders and Corey
M. Adams, of McDonald Tinker PA, of Wichita, John E. Franke and Matthew M. Clifford, of Franke
Shultz & Mullen, P.C., of Kansas City, Missouri, and Craig C. Blumreich and Richard P. Billings, of
Larson & Blumreich, Chtd., of Topeka, for appellants.
Jeff C. Spahn, Marcia A. Wood, and Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace &
Bauer, L.L.P., of Wichita, for appellees.
Before GREEN, P.J., ATCHESON and HURST, JJ.
PER CURIAM: The leaders of two factions in a not-for-profit corporation that
basically functions as a social club for owners of Piper Comanche airplanes claim to be
the duly elected officers of the organization—conflicting assertions that cannot both be
correct. Apparently unable to resolve their rivalry through some amicable agreement,
they brought the dispute to the Sedgwick County District Court. Plaintiff Avraham Shiloh
filed a civil action on his own behalf and ostensibly for the organization seeking a
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declaration that he has been fairly elected president, along with a slate filling the other
officers' positions. Defendant Christina J. Stumpf holds herself out as the properly elected
president of the corporation, and the three other defendants have laid claim to being
corporate officers as part of her slate.
In their aggressive counter to Shiloh's suit, the defendants filed a motion to dismiss
under the Kansas Public Speech Protection Act, K.S.A. 2021 Supp. 60-5320, claiming the
action impermissibly intruded on their statutorily protected rights. The district court
denied the motion. The Act provides that a defendant losing a motion to dismiss may file
an interlocutory appeal of the district court's ruling. K.S.A. 2021 Supp. 60-5320(f)(2).
Stumpf and her codefendants have done so, and that is what we have in front of us.
We conclude the district court reached the right result in denying the motion and,
therefore, affirm the ruling. The litigation may now continue in the district court. See
K.S.A. 2021 Supp. 60-5320(f) (district court proceedings stayed during interlocutory
appeal). Plaintiffs have filed a motion to recover their attorney fees for this appeal from
the defendants. We deny that motion.
ANALYSIS
Procedural Posture Under the Act
In deciding this appeal, we come at the issue from a different angle than the
district court, as we now explain. Granting a motion to dismiss under the Act entails a
two-step process. First, a defendant must show the plaintiff's legal action "is based on,
relates to[,] or is in response to [the defendant's] exercise of the right of free speech, right
to petition[,] or right of association" as defined in K.S.A. 2021 Supp. 60-5320(c)(3), (4),
and (5). K.S.A. 2021 Supp. 60-5320(d). Second, if the defendant does so, the plaintiff
may defeat the motion by presenting "substantial competent evidence" establishing a
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"prima facie" basis for the legal action or the particular claim or claims the defendant has
challenged. K.S.A. 2021 Supp. 60-5320(d). Here, the district court denied the motion
because the defendants failed in the initial statutory showing; it, therefore, never
considered the second step. We have chosen to skip over the first step and, instead, to
consider the second step. The record compiled in the district court on the motion shows
Shiloh has presented a prima facie case for a declaratory judgment resolving the
immediate conflict between the rival groups claiming to be the duly elected corporate
officers. That is sufficient to deny the defendants' motion to dismiss under the Act.
In the district court, the plaintiffs and the defendants briefed and argued both of
the steps outlined in K.S.A. 2021 Supp. 60-5320(d). They have similarly addressed both
in their appellate briefs. So the point has been fully ventilated in each court. The
resolution of the second step, by its very nature, does not require the resolution of witness
credibility or of conflicts in the evidence, since it depends on substantial evidence
supporting a prima facie case. As such, the second step presents a question of law we
may consider in the first instance. In re Estate of Oroke, 310 Kan. 305, 310, 445 P.3d 742(2019). During oral argument, the lawyers agreed that we have the latitude to address
either or both procedural steps in the process for ruling on a motion to dismiss under the
Act.
In considering whether a party has presented a prima facie case, we look at
whether the evidence, if unrebutted, would be sufficient to support a verdict or judgment
for that party. See Montgomery v. Saleh, 311 Kan. 649, 653, 466 P.3d 902 (2020); State
v. Haremza, 213 Kan. 201, 206, 515 P.2d 1217 (1973). Similarly, substantial evidence
has such relevance and scope that a person would accept it as supporting a factual
proposition—a measure that does not factor in conflicting evidence. See Cresto v. Cresto,
302 Kan. 820, 835, 358 P.3d 831 (2015); State v. Medrano, 271 Kan. 504, Syl. ¶ 1, 23
P.3d 836 (2001). Because the second step entails applying undisputed facts making up
the prima facie case to set legal standards, we can perform that function just as well as the
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district court can, so there is no overriding need to remand for a new legal determination
on the point. See State v. Wilson, 308 Kan. 516, 527, 421 P.3d 742 (2018); State v.
Randall, 257 Kan. 482, 486, 894 P.2d 196 (1995); State v. Parry, 51 Kan. App. 2d 928,
930, 358 P.3d 101 (2015), aff'd 305 Kan. 1189, 390 P.3d 879 (2017).
Plaintiffs' Prima Facie Case
With that we turn to the pertinent facts. The Northeast Comanche Tribe, Inc. is a
Kansas not-for-profit corporation and is ostensibly a plaintiff in this action, along with
Shiloh. Owners of Piper Comanche airplanes who live in the Mid-Atlantic and Northeast
states may become members of the organization. As an explanatory aside, we mention
that the Comanche moniker covers various models of popular single- and twin-engine
airplanes that Piper Aircraft, Inc. manufactured from the late 1950s to the early 1970s.
We presume the aircraft name accounts for the regional not-for-profit corporation using
Native American references such as calling the organization a "tribe" and its president a
"chief." Why the corporation was formed and registered in Kansas is less apparent.
The Northeast Comanche Tribe sponsors regular "fly-ins"—largely social
gatherings to which the attending members typically pilot their airplanes. The corporation
also circulates a periodic newsletter and hosts educational programs on airplane safety
and other matters. The Northeast Comanche Tribe is affiliated with the International
Comanche Society, Inc., another Kansas not-for-profit corporation, that serves as an
umbrella organization for various regional Comanche owners' clubs. The presidents of
the regional organizations (or their duly chosen substitutes) sit on the governing board of
the International Comanche Society. Members join both the International Comanche
Society and the geographically appropriate regional organization and pay dues that are
split between the two corporations. So the officers of the Northeast Comanche Tribe have
control of and access to some of the dues. (The amount involved is neither readily
apparent from the appellate record nor immediately relevant. The record, likewise, does
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not conveniently yield membership numbers for the Northeast Comanche Tribe. Various
sources suggest several hundred members.)
The dues-paying members of the regional organizations elect their respective
corporate officers. Shiloh served consecutive terms as president of the Northeast
Comanche Tribe and understood he could not run again. Stumpf then ran and was elected
president in 2014. Some evidence in the record indicates annual elections were not held
after that, and Stumpf and her slate simply continued in office. Stumpf has disputed the
assertion. Shiloh lodged a complaint with the International Comanche Society. In
response, the International Comanche Society organized and oversaw an election of
officers for the Northeast Comanche Tribe in 2019 that Shiloh and his slate won.
Meanwhile, Stumpf and her slate, who described themselves as the incumbent officers,
conducted a separate election that their group won.
As a result, the Northeast Comanche Tribe has two slates each claiming to be the
duly elected officers of the corporation. The International Comanche Society has
recognized Shiloh as the president of the Northeast Comanche Tribe and identifies him as
such in filings with the Kansas Secretary of State. Both Shiloh and Stumpf have
submitted filings to the Kansas Secretary of State ostensibly as the corporate president of
the Northeast Comanche Tribe. The conflicting claims of Shiloh and Stumpf have caused
confusion and consternation within and without the Northeast Comanche Tribe.
Plaintiffs Carry Their Burden Under the Act
The record evidence establishes an immediate and real controversy—rather than
an abstract or merely hypothetical dispute—supporting a declaratory judgment action.
K.S.A. 60-1701 (district court has authority "to declare the rights, status, and other legal
relationships whether or not other relief is, or could be sought"); see In re Estate of
Keller, 273 Kan. 981, 984, 46 P.3d 1135 (2002) ("Declaratory relief is not to be
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entertained for the purpose of settling abstract questions[.]"); Santa Rosa KM Assocs. v.
Principal Life Ins. Co., 41 Kan. App. 2d 840, 858, 206 P.3d 40 (2009) (purpose of
declaratory judgments "is to settle actual controversies"). More particularly, Kansas
corporation law affords the district court authority to resolve disputes over the election of
corporate officers and to determine competing claims of persons to the same corporate
office. K.S.A. 2021 Supp. 17-6515(a).
Shiloh has also submitted evidence supporting a prima facie case that he is the
president of the Northeast Comanche Tribe, although that evidence is vigorously
disputed. The International Comanche Society's bylaws recognize, charter, and assign
members to the regional organizations, including the Northeast Comanche Tribe. The
International's bylaws also require the regional organizations to hold annual elections for
designated offices, including president or chief. In the district court, Shiloh submitted a
declaration from Katherine Burrows, the International's president, in opposition to the
motion to dismiss. While acknowledging the International Comanche Society and the
regional groups are separate corporations, Burrows stated they are affiliated organizations
with overlapping membership and shared officers and directors. In the declaration,
Burrows also stated the International Comanche Society recognizes the 2019 election in
which Shiloh was elected president of the Northeast Comanche Tribe to be valid.
Burrows stated that the International's board of directors revoked Stumpf's membership in
February 2019, rendering her ineligible to hold office with either the International or the
Northeast Comanche Tribe. The other defendants in this action have been suspended or
have ceased paying dues and, therefore, cannot hold office, according to Burrows.
Those circumstances outline a prima facie case for an active dispute properly
presented in an action for declaratory judgment and for recognizing Shiloh as the duly
elected president of the Northeast Comanche Tribe. And that is sufficient to warrant
denial of the defendants' motion to dismiss under the Act. See K.S.A. 2021 Supp. 60-
5320(d). On that basis, we affirm the district court's ruling.
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What We Do Not Decide
We hasten to explain the limited scope of what we have decided. The defendants
have vociferously contested many of the factual assertions Shiloh has offered, as well as
the conclusions Shiloh would have the courts draw from those assertions. In short, the
defendants say elections were conducted, the Northeast Comanche Tribe lacks bylaws,
and the International Comanche Society overstepped its authority. They also suggest
Shiloh should have petitioned the district court for an election rather than demanding the
court take sides on the results of voting that had already taken place. As we have
explained, however, we are to consider only substantial evidence supporting a prima facie
case for Shiloh, as the party opposing the motion to dismiss. That is a slight burden to
satisfy. And he has done so precisely because we cannot and do not consider factual
conflicts presented in the evidentiary record. The arguments and the evidentiary materials
the defendants have marshaled go to the merits of Shiloh's claim and conflict with the
arguments and evidentiary materials he has compiled. The resolution of those conflicts
and the determination of the merits of Shiloh's claims are for the district court on remand
as this litigation progresses. The defendants' motion to dismiss under the Act no longer
poses a legal impediment to that progression.
We express no opinion on the merits, and nothing we offer in this opinion should
be construed as commentary on the ultimate outcome. Indeed, the Act explicitly states
that the denial of a motion to dismiss because the responding party has presented a prima
facie case cannot be given evidentiary weight or consideration for any other purpose.
K.S.A. 2021 Supp. 60-5320(d).
We, likewise, have neither endorsed nor rejected the district court's determination
that Shiloh's declaratory judgment action does not "concern" the defendants' exercise of
statutorily protected rights under the Act. The district court may be correct. But the issue
is a knotty one we need not decide.
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The rights shielded in the Act more or less correspond to explicit protections in the
First Amendment to the United States Constitution for free speech and for petitioning for
redress of grievances and the allied, though implicit, protection to freely associate with
others for such purposes. See N.A.A.C.P. v. Button, 371 U.S. 415, 430-31, 83 S. Ct. 328,
9 L. Ed. 2d 405 (1963) (acknowledging First Amendment right of association). The
defendants argue that Shiloh's suit "concerns" their protected rights both in speaking out
about how the Northeast Comanche Tribe has promoted or failed to promote pilot safety
programs and in filing an unsuccessful civil action in the Michigan courts to prevent the
International Comanche Society from conducting officer elections in 2019. See Northeast
Comanche Tribe, Inc. v. International Comanche Society, No. 352490, 2021 WL1940876
(Mich. App. 2021) (unpublished opinion) (appellate court affirms dismissal of suit
Stumpf and others orchestrated to halt 2019 election of Northeast Comanche Tribe
officers). Whether those activities amount to protected conduct under the Act may be
debatable notwithstanding the broad statutory definitions. Moreover, at least
superficially, those activities seem attenuated from the central legal dispute Shiloh has
presented in his petition and amended petition to determine the duly elected officers of
the Northeast Comanche Tribe.
Conversely, however, the Act is intended to serve a salutary public purpose and
should be liberally construed to that end. K.S.A. 2021 Supp. 60-5320(k). Kansas and
many other states have adopted measures like the Act to combat a tactic corporate and
other monied interests developed and deployed to stifle vocal opponents of their efforts to
obtain favorable government accommodations, such as zoning changes and
environmental rollbacks, or simply to silence unfavorable public comment about them.
The corporations would file specious legal actions against their critics alleging
defamation, improper interference with a prospective business advantage, or similar torts.
Those actions have become known as strategic lawsuits against public participation or
SLAPPs and are pursued not because they have merit—because they don't—but to punish
the plaintiff's outspoken opponents with burdensome legal fees to defend the litigation
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and to deter others from speaking up at all. T & T Financial of Kansas City, LLC v.
Taylor, No. 117,624, 2017 WL 6546634, at *3-4 (Kan. App. 2017) (unpublished
opinion); Mouriz, Louisiana SLAPPs Back: An Analysis of Louisiana's Anti-SLAPP Law,
Its Ambiguity, and How the State Should Remedy It, 22 Loy. J. Pub. Int. L. 21, 24-25
(2021); Tate, California's Anti-SLAPP Legislation: A Summary of and Commentary on
Its Operation and Scope, 33 Loyola L.A. L. Rev. 801, 802-06 (2000). Statutes, such as
the Act, provide a comparatively speedy procedural mechanism for challenging and
dismissing SLAPPs. See Doe v. Kansas State University, 61 Kan. App. 2d 128, 135, 499
P.3d 1136 (2021); T & T Financial, 2017 WL 6546634, at *4. The Act also directs the
district court to award reasonable attorney fees to a defendant successfully moving to
dismiss a suit. K.S.A. 2021 Supp. 60-5320(g) (district court shall award attorney fees and
consider sanctions against plaintiff and its lawyers if defendant prevails on motion and
should award reasonable attorney fees to plaintiff if motion to dismiss is denied and is
frivolous or interposed "solely . . . to cause delay").
Appellate courts in other states have held defendants must show a tangible
connection (or, in somewhat ill-defined legal parlance, a "nexus") between the plaintiff's
lawsuit and their statutorily protected activity. It is not enough that the defendants have
spoken out or otherwise engaged on a particular issue and then get sued by the plaintiff
for wholly unrelated claims, especially if those claims are otherwise colorable. See Park
v. Board of Trustees of California State University, 2 Cal. 5th 1057, 1062-63, 393 P.3d
905 (2017) ("nexus" under California anti-SLAPP statute requires the protected activity
underlie or form the basis for plaintiff's challenged claim); American Studies Assoc. v.
Bronner, 259 A.3d 728, 745-46 (D.C. Ct. App. 2021) (recognizing "nexus" requirement
under District of Columbia anti-SLAPP statute). The first step for dismissal under the
Kansas statutory scheme effectively imposes a broadly phrased nexus standard requiring
the defendant to establish that the plaintiff's suit or a specifically challenged claim
"concerns" the defendant's statutorily protected activity and, thus, "is based on, relates to
or is in response to" the protected activity. K.S.A. 2021 Supp. 60-5320(d).
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Beyond that general commonality, we hesitate to draw too much from appellate
decisions construing other states' anti-SLAPP statutes because the measures often differ
significantly in their definitions of protected activity and their procedures and substantive
bases for granting relief. See Saudi American Public Relations Affairs Committee v.
Institute for Gulf Affairs, 242 A.3d 602, 611 (D.C. Ct. App. 2020) (declining to rely on
cases from other jurisdictions as persuasive authority, noting anti-SLAPP statutes "vary
in language and scope," despite their "same general goals"). The Kansas anti-SLAPP
statute went into effect in 2016 and has produced only one published appellate decision.
Nonetheless, the intersection of the Act's expansive public purpose and relaxed
nexus requirement, on the one hand, with the rather indistinct fit between Shiloh's basic
claim for a judicial determination of who are the properly elected officers of the
Northeast Comanche Tribe and the defendants' claimed statutorily protected conduct, on
the other, poses an intriguing and multifaceted legal problem. The district court rose to
the challenge; we decline the opportunity. We may skip over the issue and consider,
instead, whether the plaintiffs have presented a prima facie case for relief because that
showing alone requires denial of the defendants' motion to dismiss. Although the two
steps are logically and legally sequential in the sense a ruling adverse to a defendant on
the first renders decision of the second superfluous and, thus, unnecessary, we have no
prudential obligation to review the district court's determination of the first simply to get
to the second if our resolution of the second will fully and finally dispose of the motion to
dismiss.
Appellate courts may bypass difficult issues to settle appeals on dispositive
sequential issues that are factually or legally much more clearcut. We routinely do so in
habeas corpus appeals when we affirm a denial of relief because the movant cannot show
prejudice resulting from his or her lawyer's representation, obviating the need to decide if
the representation were constitutionally inadequate. See Edgar v. State, 294 Kan. 828,
843-44, 283 P.3d 152 (2012); Bailey v. State, No. 124,101, 2022 WL 2188031, at *1-2
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(Kan. App. 2022) (unpublished opinion). Similarly, in Taylor v. Kansas Dept. of Health
and Environment, 49 Kan. App. 2d 233, 240, 305 P.3d 729 (2013), we simply assumed a
state administrative policy should have been adopted through the notice and hearing
process for regulations because the issue was less than obvious and found the plaintiff
had failed to prove a constitutional due process violation, a much easier determination,
and denied relief on that basis. Federal courts frequently extend qualified immunity to
government agents defending civil rights suits when the plaintiffs fail to show that a
claimed constitutional right was "clearly established" at the time the agents acted,
bypassing the often more complicated determination of whether such a right exists at all.
See Pearson v. Callahan, 555 U.S. 223, 236-37, 129 S. Ct. 808, 172 L. Ed. 565 (2009);
Evans v. Skolnick, 997 F.3d 1060, 1065-66 (9th Cir. 2021); Hagans v. Franklin County
Sheriff's Office, 695 F.3d 505, 508 (6th Cir. 2012).
We have appropriately followed a comparable pathway here in affirming the
district court because Shiloh has demonstrated a prima facie case for declaring him to be
the duly elected president of the Northeast Comanche Society. Cf. Fawcett Trust v. Oil
Producers Inc. of Kansas, 315 Kan. 259, 288, 507 P.3d 1124 (2022) (affirming district
court as reaching right result for wrong reason).
Plaintiffs' Motion for Attorney Fees on Appeal
Plaintiffs timely filed a motion to recover their attorney fees from the defendants
for this appeal under Supreme Court Rule 7.07(b) (2022 Kan. S. Ct. R. at 52). The rule
permits us to award reasonable attorney fees if the district court has the authority to do
so. As we have indicated, the Act gives the district court the authority to order a
defendant to pay a plaintiff's attorney fees if it denies a motion to dismiss and finds the
motion to have been frivolous or filed "solely. . . to cause delay." K.S.A. 2021 Supp. 60-
5320(g). Defendants have responded and oppose the attorney fee request.
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The Kansas Supreme Court has adopted the eight factors in Rule 1.5(a) of the
Kansas Rules of Professional Conduct (2022 Kan. S. Ct. R. at 333), bearing on an
ethically "reasonable" attorney fee, as a guide for determining contractual or statutory fee
awards. Johnson v. Westhoff Sand Co., 281 Kan. 930, 940-41, 135 P.3d 1127 (2006). The
criteria revolve around the time required to undertake the work, the complexity of the
litigation, customary fees or rates for comparable legal services, constraints the litigation
imposes on the lawyers in terms of deadlines or forgoing other work, the experience and
skill of the lawyers, the ongoing professional relationship (if any) between the lawyers
and the client, the value of what was at stake in the case and the result obtained, and
whether the fee arrangement with the client is "fixed or contingent." 281 Kan. at 940-41;
see Rule 1.5(a). The factors in Rule 1.5(a) have not changed since Johnson was decided.
Statutory attorney fee awards typically begin with a "lodestar" calculation based
on a determination of the reasonable number of hours to accomplish the legal work
multiplied by a customary or market hourly rate in the geographical area for lawyers with
comparable experience. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76
L. Ed. 2d 40 (1983) (outlining lodestar method). Calculating a lodestar amount as the
foundation for a "reasonable" statutory fee award comports with KRPC 1.5(a), especially
because two of the factors are "fee[s] customarily charged in the locality for similar legal
services" and "the time and labor required" to do the work. KRPC 1.5(a)(1), (a)(3) (2022
Kan. S. Ct. R. at 333). Those considerations largely replicate the backbone of a lodestar
computation. The initial lodestar amount then can and should be adjusted, as necessary,
to accommodate the remaining factors in KRPC 1.5(a) to arrive at a reasonable fee
award. See Citizens Utility Ratepayer Bd. v. Kansas Corporation Comm'n, 47 Kan. App.
2d 1112, 1126-27, 284 P.3d 348 (2012) (upholding attorney fee award in utility rate case
based on lodestar and KRPC 1.5[a]); Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d
193, 199, 786 P.3d 618 (1990) (statutory award of reasonable attorney fee for collecting
delinquent medical benefits due workers compensation claimant to begin with
computation based on reasonable hours multiplied by reasonable hourly rate).
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In support of the attorney fee motion, the law firm representing Shiloh and the
organization has submitted an affidavit from one of its partners who has appeared in this
litigation. The affidavit recites the hourly rates for the three lawyers working on the
appeal and the total number of hours each lawyer devoted to the appeal. The affidavit
states the hourly rates are reasonable for the Wichita legal market based on the lawyer's
knowledge as a longtime practitioner there and points to a 2017 survey of hourly rates the
Kansas Bar Association prepared and published. A copy of relevant portions of the
survey accompanied the affidavit.
The affidavit then provides the total hours each of the identified lawyers worked
on the appeal and requests a fee award of $28,990. The motion and supporting materials
do not provide any breakdown of the hours for each lawyer by discrete task performed
and time spent on each task. In effect, the motion simply offers a single block bill entry
for each lawyer. Block billing refers to fee requests or invoices containing large time
increments—the blocks—for the lawyers, typically with minimal descriptions of the
work done. Citizens Utility Ratepayer Bd., 47 Kan. App. 2d at 1132; Johnston v. Borders,
36 F.4th 1254, 1287 (11th Cir. 2022). The practice thwarts judicial review of attorney fee
requests for reasonableness because a block bill or invoice entry "camouflages the nature
of a lawyer's work" and may be a façade for inefficiencies such as extensive lawyer
conferences or grossly excessive time spent researching comparatively straightforward
legal issues or drafting relatively routine papers. Citizens Utility Ratepayer Bd., 47 Kan.
App. 2d at 1132-33; Johnston, 36 F.4th at 1287. Those sorts of excesses usually should
be stripped from statutorily mandated attorney fee awards. See Hensley, 461 U.S. at 434;
Cooper v. Great Mileage Rides, Inc., No. 105,184, 2012 WL 1072758, at *4 (Kan. App.
2012) (unpublished opinion).
We do not ascribe those disfavored practices to Shiloh's lawyers. But the attorney
fee motion and the supporting documents preclude us from policing the request in any
meaningful way. We, therefore, deny the motion.
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Although we could attempt to fashion a reasonable fee award on our own, we
decline to do so. See Johnson, 281 Kan. at 940 (judges considered to be experts on
attorney fees and may draw on that expertise in making an award). Here, we do not have
the benefit of bills or invoices as a starting place, so we have no idea what tasks each
lawyer performed or some increment of time (even stated in sizeable blocks) associated
with the tasks. We would be painting on an entirely blank canvas framed only by the final
amount the lawyers have requested and the total hours each lawyer spent on the appeal.
And that would be too creative an undertaking on our part. Because we have otherwise
denied the fee request, we do not consider whether the defendants' appeal was frivolous
or undertaken for delay—a statutory requirement under the Act for an attorney fee award
to a plaintiff prevailing on a motion to dismiss.
Conclusion
We affirm the district court's order denying the defendants' motion to dismiss
under the Kansas Public Speech Protection Act. We deny the plaintiffs' motion for
attorney fees incurred in this appeal.
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