Riney v. McGuire ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,270
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WILLIAM RINEY, et al.,
Appellees,
v.
ANDREW E. MCGUIRE,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed September 11,
2020. Affirmed.
Andrew McGuire, appellant pro se.
Deron A. Anliker and Alexander J. Aggen, of Duggan Shadwick Doerr & Kurlbaum LLC, of
Overland Park, for appellees.
Before ATCHESON, P.J., BRUNS and POWELL, JJ.
POWELL, J.: This case involves a property dispute between William Riney and
Mary Jane Riney (the Rineys) and Andrew McGuire. After renting a house to McGuire for
several years, the Rineys sued McGuire to retake possession of the house and recover
unpaid rent. McGuire asserted several counterclaims, including one seeking
reimbursement for improvements he claimed he made to the house. The district court
granted summary judgment for the Rineys on their possession claim and on all McGuire's
counterclaims other than his reimbursement claim. After a bench trial on the remaining
issues, the district court awarded the Rineys $11,000 in damages for unpaid rent and
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found McGuire had not proven his reimbursement claim. On appeal, McGuire contends
the district court improperly granted summary judgment for the Rineys, denied him a
right to a jury trial, prevented him from presenting evidence on his reimbursement
counterclaim, and wrongly excluded two appraisal documents. After a careful review of
the record, we are unpersuaded by McGuire's arguments and affirm the district court's
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The agreement
The Rineys own a house on West 80th Street in Overland Park, Kansas, and had
lived in the home since the 1990s. But after Mary Jane had a stroke in 2014, they had to
move because the house had no wheelchair access. When they put the house up for sale,
McGuire contacted them about buying it.
The Rineys agreed to lease the house to McGuire, giving him the option to buy it
later. According to the Rineys, they had an oral agreement; McGuire did present them
with a typed document purporting to reflect the agreement, but they never signed it.
McGuire, on the other hand, said the Rineys asked him to prepare and then signed a
written contract reflecting the agreement. Nevertheless, the basic terms of the initial
agreement between the Rineys and McGuire are undisputed: The Rineys would lease the
house to McGuire for $1,000 a month for one year starting September 1, 2015, and
during that time McGuire had the option to buy the house for $185,000 if he could get
financing.
McGuire said he applied for a loan, though he could not produce an application at
trial. The one-year deadline passed, and McGuire had not exercised his purchase option.
But the Rineys continued to rent the house to McGuire for $1,000 a month because
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McGuire said he was short on a down payment for a loan. Around this time, McGuire
showed William a letter from McGuire's bank stating he would need to put $30,000 down
for a loan; he told William he did not have that much. At trial, McGuire claimed no bank
would give him a loan because the Rineys were behind on property taxes.
The rent issues and the mechanic's liens
McGuire timely paid $1,000 for the first month's rent but paid only $500 the next
month. After that, McGuire paid almost no rent for two years: $424 in early September
2017 and three $200 payments sometime before then. In total, McGuire only paid $2,524
in rent from September 2015 to September 2017. He paid no rent after that.
On July 31, 2017, the Rineys delivered written notice to McGuire that they were
ending the lease and he had until August 31 to vacate the house. Rather than leave,
McGuire instead filed a $68,097.68 mechanic's lien against the Rineys for work he
claimed to have done on the house. The lien and an invoice attached to it described the
work as "furnace/AC unit, mold ex[tr]action, paint, electrical, lumber, drywall, plumbing,
etc. junk removal." Both documents included a total price for all work performed but no
individual amounts for specific items. The invoice was from an entity called WCP, which
McGuire said was his company. McGuire filed another mechanic's lien two weeks later
for the same work and total amount.
Right after McGuire filed his first lien, the Rineys filed a Chapter 61 case in the
district court for eviction, unpaid rent, and slander of title. At a hearing in January 2018, a
magistrate judge dismissed the complaint for lack of jurisdiction. The judge found the
Rineys had not sent McGuire a reservation-of-rights letter stating a partial payment he
made in September 2017 did not continue their agreement and McGuire claimed an
equitable interest in the property. The September payment was the $424 payment
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mentioned earlier; McGuire had deposited it in the Rineys' bank account, and they did not
realize that fact until a few months later.
In mid-September, shortly after the Rineys filed their lawsuit, McGuire sought
bankruptcy protection in federal court. His bankruptcy filing triggered an automatic stay
of all collection efforts undertaken by creditors, including the Rineys. See 11 U.S.C.
§ 362(a) (2016). But the bankruptcy court a few months later granted the Rineys' request
for relief from the automatic stay—that is, they received permission to pursue their
claims against McGuire in state court for possession of the property and unpaid rent.
Although the Rineys were now free to pursue their claims against McGuire, the
bankruptcy court also discharged any rent McGuire owed before filing for bankruptcy.
However, the Rineys could still seek any postbankruptcy rent owed—McGuire remained
in the home and had not paid any rent after his bankruptcy filing.
The lawsuit
The Rineys delivered two more written notices to McGuire in February 2018.
Both reiterated their view that the July 2017 notice had ended the month-to-month
tenancy, the $424 payment from September did not satisfy McGuire's outstanding debt
for unpaid rent, McGuire continued to accrue rent debt as a holdover tenant, and asked
McGuire to vacate the property.
In March 2018, the Rineys filed suit in the district court. The Rineys sought: (1)
possession of the property; (2) a declaration that any encumbrances to their title by
McGuire, including any mechanic's liens, were invalid and unenforceable; (3) damages
for McGuire's slander of their title; (4) payment of postbankruptcy rent under unjust
enrichment and holdover tenant theories; and (5) a setoff against any amounts they may
owe McGuire for any unpaid prebankruptcy rent.
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Appearing pro se as he does on appeal, McGuire answered and demanded a jury
trial. He also asserted several counterclaims which included slander, harassment, loss of
income, violation of the bankruptcy stay, pain and suffering, attorney fees, and breach of
contract and unjust enrichment claims for improvements he made to the house. In their
answer to McGuire's counterclaims, the Rineys also requested a jury trial "on all issues so
triable under Kansas law." This request was withdrawn five months later.
The summary judgment motions
In August 2018, the Rineys first moved for summary judgment on their forcible
detainer claim. They argued that under the undisputed facts, they had a right to immediate
possession as a matter of law—they owned the house, McGuire had not paid rent, they
had delivered written notice ending the month-to-month tenancy, and McGuire still
occupied the property. McGuire individually responded to the Rineys' factual statements
but provided no citations to exhibits or other evidence supporting his factual allegations.
Among other things, he alleged he had an equitable interest in the property arising from
improvements he made and that under K.S.A. 60-1004 he had a right to possession until
the Rineys reimbursed him for the improvements.
The district court granted the motion after holding a hearing. The undisputed
evidence showed the Rineys owned the property and McGuire never received title
because he never exercised the purchase option. Moreover, because the Rineys had ended
the month-to-month tenancy with written notice, they had a right to retake possession.
McGuire was given one month to vacate the property. He timely did so.
A few weeks before trial, the Rineys again sought partial summary judgment, this
time on their claim that McGuire's mechanic's liens were invalid and on all of McGuire's
counterclaims except for his reimbursement claim. As with the first motion, McGuire
responded by denying or disputing most of the Rineys' factual statements without
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referencing any supporting evidence. Sometimes, however, he referenced some exhibits
he attached to his response. The Rineys replied with an affidavit from William. William
stated he and Mary Jane never signed a written contract or agreed to pay McGuire for
work on the house; besides some mold in the basement, the house was in good condition
when McGuire took possession; and the house was in a "dreadful state" after McGuire
left.
The district court heard arguments on the second summary judgment motion on
the date scheduled for a trial. The district court granted the Rineys summary judgment on
their claim that McGuire's mechanic's liens were invalid on the grounds the liens had not
been itemized as required by K.S.A. 60-1102(a). The district court also granted summary
judgment on all of McGuire's counterclaims included in the Rineys' second motion,
finding some of McGuire's claims were not cognizable causes of action and he provided
no specific evidence to support his counterclaims. The district court found McGuire had
failed to identify any false or defamatory words communicated to a third party; no civil
harassment, loss of income, and pain and suffering causes of action existed in Kansas; the
Rineys had not violated the bankruptcy stay; and McGuire was not entitled to any
attorney fees.
The trial
At the beginning of the trial, the Rineys announced they were "voluntarily
dismissing . . . without prejudice" their claims for damages resulting from McGuire's
slander of their title. The district court received evidence on the remaining claims, first
hearing evidence on the Rineys' claims for unpaid rent and then on McGuire's claim for
reimbursement for improvements he made to the house.
William testified the parties had agreed to $1,000 a month in rent, but he and Mary
Jane had not received any rent from McGuire since he filed for bankruptcy. William did
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not recall agreeing to reduce rent to about $420 a month or to $200 a week as McGuire
suggested but confirmed the only prebankruptcy rent McGuire paid were the amounts
listed earlier: $1,000 the first month, $500 the next month, three $200 payments, and
$424 in September 2017.
McGuire admitted he had paid no rent since filing for bankruptcy. But he testified
that although he had paid $1,000 for rent the first month, the Rineys had agreed to reduce
rent to $200 a week in November 2015. McGuire claimed he had paid over $16,000 in
rent before filing for bankruptcy but claimed he lacked proof because the Rineys would
not produce their bank records showing the rent deposits he had made. But McGuire
acknowledged on cross-examination he never subpoenaed those records.
As to McGuire's reimbursement counterclaim, McGuire testified the Rineys had
signed a written contract agreeing to pay for improvements he had made to the property
and produced what he claimed was a copy of the contract. McGuire said his work
included replacing the air-conditioning unit and other appliances that he said were not
working; tearing out cabinets and removing junk; and remodeling the basement, kitchen,
and family room. He submitted photos of this work and some receipts totaling about
$23,000 for materials. However, the name on the credit card used to pay for these
materials and listed on the receipts was James Gregory, a person McGuire said had lent
him some money to improve the house. McGuire claimed Gregory was unavailable to
testify because he was in Mexico. McGuire admitted he did not finish any of the work he
started in the house.
To show his work improved the house's value, McGuire presented two
appraisals—one from before his lease started and the other from two years later after he
had worked on the house. He had attached these appraisals as exhibits to his response to
the Rineys' second summary judgment motion. The district court refused to admit the
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appraisals as evidence because they contained hearsay statements and rejected McGuire's
claim that the business records exception to the hearsay rule applied.
In addition to his own testimony, McGuire called Mary Jane as a witness. Other
than some mold in the basement, she said the house was in great shape when she and her
husband moved out. She also testified they never brought McGuire a contract to sign.
The district court then asked McGuire if he had any other witnesses to present.
McGuire asked to call William to testify again, this time about whether he consented to
the renovations that McGuire did. But the district court denied that request, stating
William's testimony would be irrelevant because there was a contract. The district court
then asked McGuire if he had anything else to present, and McGuire said no.
The district court's findings
The Rineys orally moved for judgment as a matter of law on the rest of McGuire's
counterclaims. In response, McGuire said that in his view the district court had not yet
covered his breach of contract counterclaim.
The district court granted the Rineys' motion on McGuire's counterclaims and then
announced its findings on the rent claims. The district court awarded the Rineys $11,000,
an amount reflecting $1,000 for each month McGuire remained in possession of the
property after filing for bankruptcy. As for prebankruptcy rent, the district court found no
support for McGuire's assertion that he paid over $16,000; instead, the evidence showed
he only paid around $2,500.
The district court sorted through all the evidence McGuire submitted to show the
improvements he made to the house. Although the photos McGuire presented made it
clear he performed some work, none of it was completed. And the district court found it
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"absolutely impossible, to determine what, if anything, was purchased that went into this
home." For example, the district court noted the receipts were not legible and some were
not itemized. Moreover, the district court found no matter what McGuire may have spent,
the receipts came nowhere close to exceeding the amount of prebankruptcy rent he owed.
The district court found McGuire had left the house in an unsellable condition, contrary
to his claim that his work enhanced the house's value. For these reasons, McGuire had not
come close to proving he was entitled to reimbursement for any of the improvements he
made to the house.
Finally, the district court discussed the contract claim. Unfortunately, its oral
findings on this point are somewhat unclear. The district court started by stating that
"breach of contract [was] clear" and appearing to credit the written agreement that
McGuire had produced. Then the district court construed the contract as a rental
agreement, noting that McGuire failed to secure financing and exercise his purchase
option. Although the written contract mentioned improvements, the district court found it
"insignificant . . . if they were approved or not" because "at the end of the day, th[e]
house was not left in the condition where it could be sold. There was no increased value."
It appears from the record the district court found the Rineys had signed a written
contract agreeing to pay for improvements but McGuire could not recover because his
work did not improve the property.
The district court entered a written journal entry combining its findings on the
Rineys' second summary judgment motion, their motion for judgment as a matter of law
on McGuire's counterclaims, and the district court's bench trial findings on the Rineys'
rent claims. As the district court had stated in its oral findings, the journal entry awarded
the Rineys an $11,000 judgment.
McGuire timely appeals.
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ANALYSIS
On appeal, McGuire appears pro se—as he did in the district court—and
challenges various aspects of the district court's decisions. Unfortunately, his arguments
are inartfully worded, and we do our best to give effect to his arguments' content and
substance rather than the labels he attaches to them. See Nguyen v. State, 309 Kan. 96,
105, 431 P.3d 862 (2018) (pro se pleadings to be liberally construed).
I. Did the district court properly grant summary judgment on the Rineys' possession
claim and on McGuire's counterclaims?
McGuire appeals the district court's two summary judgment decisions. For both
decisions, he claims summary judgment was improper because material facts were in
dispute.
The legal rules applicable to summary judgment are well known. Summary
judgment is appropriate if all the case materials—the pleadings, depositions,
interrogatory answers, admissions, and affidavits—show there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law. In
reviewing the evidence, the district court must resolve all facts and reasonable inferences
from them in favor of the nonmoving party. On appeal, we apply the same rules, and
when we find reasonable minds could differ as to the conclusions drawn from the
evidence, summary judgment must be denied. Thoroughbred Assocs., L.L.C. v. Kansas
City Royalty Co., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 (2013).
A. Forcible detainer
McGuire first disputes the district court's decision to grant summary judgment on
the Rineys' claim for possession of the property. Forcible detainer is a statutory claim
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involving the single question of who has a right to immediate possession of the property.
McCracken v. Wright, 159 Kan. 615, 618-19, 157 P.2d 814 (1945). We see nothing in the
record that counters the Rineys' right to possession of the property.
It is important to note that before the district court, McGuire never raised a
genuine dispute about the material facts needed to grant the Rineys immediate possession
of the property. In an affidavit, William said he and his wife owned the property and had
agreed to rent it to McGuire for $1,000 a month. A separate affidavit from their attorney
stated the Rineys had delivered three notices—one in July 2017 and two in February
2018—ending the month-to-month tenancy. Those notices were properly attached as
exhibits to their first summary judgment motion. The motion also cited factual assertions
in both the complaint and the answer that McGuire had not vacated the property despite
receiving the notices. If undisputed, according to this evidence the Rineys had a right to
immediate possession of the property and McGuire did not as a matter of law. See K.S.A.
58-2570(c) ("If the tenant remains in possession without the landlord's consent after . . .
[the rental agreement's] termination, the landlord may bring an action for possession.").
To preclude summary judgment, McGuire then had to "come forward with
evidence to establish a dispute as to a material fact." See Thoroughbred, 297 Kan. 1193,
Syl. ¶ 2. He failed to do so because his factual responses failed to "set out specific facts
showing a genuine issue for trial"; instead, he relied on mere "allegations or denials in
[his] own pleadings." See K.S.A. 2019 Supp. 60-256(e)(2).
For example, McGuire asserts the Rineys did not own the house. To prove
ownership, the Rineys submitted William's affidavit. McGuire, in contrast, merely denied
ownership without filing his own affidavit or providing other evidentiary support.
Conclusory allegations of that kind do not create a genuine factual dispute on an issue
that has been supported by an uncontradicted affidavit. See Ebert v. Mussett, 214 Kan.
62, Syl. ¶ 3, 519 P.2d 687 (1974). McGuire's responses to the other material facts were
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much the same. Thus, McGuire failed to controvert any material fact that entitled the
Rineys to summary judgment.
Unable to show the material facts regarding the Rineys' right to immediate
possession were in dispute, McGuire pivots to legal ground. He claims he acquired an
equitable interest in the property due to the improvements he made, meaning he had a
legal right to stay on the property until the Rineys paid him for those improvements.
McGuire cites three statutes that purportedly support this proposition. But two of
the statutes he cites plainly do not apply to detainer claims like this one—K.S.A. 60-
1002, which applies to quiet title claims, and K.S.A. 2019 Supp. 60-1005, which applies
to replevin claims to recover personal property. The third statute he cites, K.S.A. 60-
1004, arguably is the only one potentially applicable here. It does require reimbursement
for improvements before a court grants possession to a party with superior title, but only
if the party occupying the property is doing so peacefully "under color of title in good
faith." K.S.A. 60-1004(a).
To meet that standard, McGuire would need to claim an interest in the property
"based upon a writing which purports to convey title on its face but which does not do
so." Munkres v. Chatmon, 3 Kan. App. 2d 601, Syl. ¶ 1, 599 P.2d 314 (1979). Put
differently, he would have to allege he received "title which gives the appearance or
semblance of title but in fact does not." 3 Kan. App. 2d 601, Syl. ¶ 2. For example, a
buyer at a judicial sale that is later set aside because the owner had no notice of the sale
would qualify as a person occupying under color of title and could remain in possession
until receiving payment for improvements. See Board of Wyandotte County Comm'rs v.
Adkins, 12 Kan. App. 2d 522, 522, 749 P.2d 1056 (1988). But here, as the district court
found, McGuire had no claim to title because he never exercised the purchase option. He
never alleged any facts that would qualify him as a person occupying under color of title,
so he had no possession rights under K.S.A. 60-1004.
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McGuire offers two other arguments for why the district court erred in granting
summary judgment for the Rineys on their possession claim. First, he objects to the
timing of the motion. He claims the district court could not grant summary judgment until
it had ruled on a bifurcation motion, held a pretrial conference, and allowed discovery to
occur. But K.S.A. 2019 Supp. 60-256 does not impose any such requirements; nothing in
the statute prevents a party from requesting (or a court from granting) summary judgment
before the events that McGuire cites occur. In fact, the opposite is true: "A party may
move for summary judgment at any time until 30 days after the close of all discovery."
K.S.A. 2019 Supp. 60-256(c)(1)(A). While it is usually preferable not to grant summary
judgment until after discovery is complete, it "may be appropriate even when discovery is
unfinished" if, as was the case here, the material facts are undisputed. Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, Syl. ¶ 14, 296 P.3d 1106, cert.
denied 571 U.S. 826 (2013). The district court did not err in granting summary judgment
on the possession claim when it did.
Second, McGuire makes a fleeting argument about the Rineys not serving him
with something called a "Notice to Pro Se Litigant Who Opposes a Summary Judgment
Motion." This is a document that a represented party appearing in the United States
District Court for the District of Kansas must serve on a pro se party when filing for
summary judgment pursuant to D. Kan. Rule 56.1(f). But that rule applies to federal
court, not a state court. D. Kan. Rule 1.1(a). McGuire cites to us no analogous Kansas
statute or court rule that would have applied in the district court.
In short, McGuire has failed to establish any genuine issue of material fact on the
Rineys' possession claim, and those facts entitled the Rineys to possession as a matter of
law. The district court properly granted the Rineys' first summary judgment motion.
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B. Counterclaims
McGuire only briefly disputes the district court's decision to grant summary
judgment on all his counterclaims other than his reimbursement claim. Again, his briefing
is inartful as it devotes only one line in his opening brief and reply brief each to the
Rineys' claim that his mechanic's liens were invalid. According to our Supreme Court, he
has waived any objection to the district court's decision on this issue by not supporting
his argument with any legal authority. See In re T.S., 308 Kan. 306, 312-13, 419 P.3d
1159 (2018). Even if he had, it would make no difference as the district court found that
the liens were not itemized as required by K.S.A. 60-1102(a)(4) and were thus
unenforceable as a matter of law.
McGuire also contends he could have supported his counterclaims with affidavits
but never did so because they are unethical documents used by lawyers to deceive courts.
McGuire is entitled to his opinion about affidavits, but a statute permits their use in
summary judgment proceedings. See K.S.A. 2019 Supp. 60-256(a), (b), (e). And if he
believed the Rineys submitted an affidavit in bad faith, that same statute allowed him to
challenge it as such. See K.S.A. 2019 Supp. 60-256(e)(2). Instead, he relied on mere
"allegations or denials," which cannot preclude summary judgment. See K.S.A. 2019
Supp. 60-256(e)(2).
1. Slander
McGuire's first counterclaim sought damages from the Rineys for slander. He
alleged they made false and defamatory statements to third parties, including government
agencies. Slander requires "false and defamatory words communicated to a third person
which result in harm to the reputation of the person defamed." Dominguez v. Davidson,
266 Kan. 926, Syl. ¶ 3, 974 P.2d 112 (1999). The district court granted summary
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judgment to the Rineys on McGuire's slander counterclaim because he identified no
defamatory words communicated to a third party.
On this particular point the record does not support the district court's findings.
McGuire alleged in his response to the Rineys' summary judgment motion that they made
false reports about him to the Overland Park Police Department and the Kansas
Department for Children and Families (DCF). For support, he attached a letter from DCF,
stating that someone had reported him for abusing Mary Jane, and a police incident
report. He claimed these documents showed the Rineys had falsely reported him to DCF
for abuse and to the police for theft and unpaid rent. If William or Mary Jane made these
reports, the third-party communication element of slander would be satisfied.
But McGuire's slander claim still fails as a matter of law because he provided no
evidence those communications harmed his reputation. Reputational injury is the essence
of a defamation claim; no slander claim can succeed without it. Gobin v. Globe Pub. Co.,
232 Kan. 1, Syl. ¶ 2, 649 P.2d 1239 (1982). Even if we assume the Rineys made false and
defamatory reports to the police and DCF, McGuire never provided evidence to show
these statements harmed his reputation.
Instead, McGuire once again made only conclusory allegations of reputational
harm unsupported by evidence. His answer claimed the Rineys' statements had "altered
[his] reputations and . . . repairs will take time." The only other place he mentioned
reputational harm was in one paragraph of the argument section of his summary
judgment brief. There, he asserted the false reports would prevent him from getting hired
as a public school teacher. But McGuire provided no affidavit or other specific facts to
support that assertion. Again, he cannot create a genuine issue of material fact without
evidence. See K.S.A. 2019 Supp. 60-256(e)(2); Thoroughbred, 297 Kan. 1193, Syl. ¶ 2.
Even if the district court erred in dismissing the slander counterclaim on third-party
grounds, its decision can still be affirmed as right for the wrong reason because McGuire
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alleged no reputational harm. See O'Brien v. Leegin Creative Leather Products, Inc., 294
Kan. 318, 341, 277 P.3d 1062 (2012).
2. Harassment
McGuire's harassment counterclaim requested damages for the Rineys excessively
calling him and visiting the property. The district court granted summary judgment
because there is no cause of action for civil harassment in Kansas and because McGuire's
claim would fail even if the district court had construed it as an infliction of emotional
distress claim. Rather than confront these arguments, McGuire cites his trial court brief,
claiming it included relevant legal authority and facts to support a harassment claim.
None of the authorities McGuire points us to establish that Kansas recognizes a
civil claim for harassment. Consider his citation to the definition of harassment in K.S.A.
2019 Supp. 60-31a02(d)(1). That statute authorizes protection orders from stalking, not
civil liability and money damages. See K.S.A. 2019 Supp. 60-31a04. The same is true for
his passing reference to K.S.A. 58-2557(c), which says a landlord should not use its right
to access the property "to harass the tenant." That provision is 16 words long; none of
them create a cause of action for civil harassment. Nor does K.S.A. 2019 Supp. 21-6206,
which criminalizes certain harassing statements made with a telecommunications device.
McGuire cited no legal authority that Kansas recognizes a civil harassment claim, so the
district court properly granted summary judgment for the Rineys.
3. Loss of income, pain and suffering, attorney fees, and violation of
the bankruptcy stay
As to his other counterclaims, McGuire says little. He never mentions the district
court's decision on what he called a violation of bankruptcy stay claim. He devotes only a
few sentences to his claims for loss of income and attorney fees, and he does not mention
16
his pain and suffering claim. He has waived those issues by inadequately briefing them.
See In re T.S., 308 Kan. at 312-13. But again, even if he had, it would make no difference
because the district court was right to grant summary judgment on them.
Loss of income and pain and suffering are not stand-alone causes of action. They
are types of damages recoverable in a personal injury action. See Kuhl v. Atchison,
Topeka & Santa Fe Ry. Co., 250 Kan. 332, Syl. ¶ 3, 827 P.2d 1 (1992). However,
McGuire never alleged that type of claim. The district court did not err in dismissing the
loss of income and pain and suffering claims.
As for his claim for attorney fees, McGuire simply rehashes the arguments he
made in the district court. He maintains the Rineys lied to him throughout the lawsuit and
intentionally prolonged the case to increase his legal fees. Even if that were true, he could
not recover fees as a matter of law because in Kansas attorney fees are recoverable only if
a statute or an agreement between the parties allows them. See Thoroughbred, 297 Kan.
at 1215. McGuire does not point us to any such statute or agreement here, so he could not
recover fees even if his unsupported allegations about the Rineys' litigation tactics were
true.
II. Did McGuire have a right to a jury trial under § 5 of the Kansas Constitution Bill
of Rights?
Next, McGuire contends he had a constitutional and statutory right to a jury trial.
The Rineys respond that McGuire had no jury trial right here because the sole claim on
which he might recover—unjust enrichment—was equitable.
Any jury trial right that McGuire might have must come from the Kansas
Constitution or a Kansas statute, not the United States Constitution. The Seventh
Amendment to the United States Constitution provides a right to a jury trial in federal
17
court; it does not apply in state court cases. Gasperini v. Center for Humanities, Inc., 518
U.S. 415, 432, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996); Vanier v. Ponsoldt, 251 Kan.
88, Syl. ¶ 3, 833 P.2d 949 (1992). So if McGuire had a jury trial right, it must arise under
the analogous provision in the state constitution, § 5 of the Kansas Constitution Bill of
Rights.
Under § 5 of the Kansas Constitution Bill of Rights, "[t]he right of trial by jury
shall be inviolate." Section 5 preserves the jury trial right as it existed at common law in
1859 when the Kansas Constitution was ratified. Hilburn v. Enerpipe Ltd., 309 Kan.
1127, 1133-34, 442 P.3d 509 (2019) (plurality opinion); 309 Kan at 1151 (Stegall, J.,
concurring). Legal claims are triable to juries as a matter of right; equitable claims are
not. See Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, Syl. ¶¶ 2-3, 561 P.2d 825(1977).
Admittedly, applying the law-equity distinction can prove tricky in a case like this
with multiple claims, some legal and others equitable. "In determining whether an action
is one in equity the test is whether the essential nature of the action is grounded on
equitable rights and is one in which equitable relief is sought." 221 Kan. at 600. But "[t]he
existence of legal [counterclaims] does not alter the essential nature of the action." First
National Bank of Olathe v. Clark, 226 Kan. 619, 623, 602 P.2d 1299 (1979). Moreover,
"[w]here a court of equity obtains jurisdiction of an action for the purpose of granting
some distinctively equitable relief, the court will take jurisdiction for all purposes and
determine all issues in the case." Quan, 221 Kan. at 601. To determine on
which side of the legal-equitable line a case falls, we consider the substance of the parties'
claims from the pleadings. 221 Kan. at 601.
The district court clearly had jurisdiction to consider the parties' equitable claims.
As to the Rineys' claims, they voluntarily dismissed their claim for damages arising out
of McGuire's alleged slander of their title to the property and had subsequently waived
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any request for a jury trial. After the district court granted the Rineys partial summary
judgment, what remained of their claims to be tried were essentially equitable in
character. See In re Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 64 L. Ed. 919 (1920)
("No one is entitled in a civil case to trial by jury, unless and except so far as there are
issues of fact to be determined."); 9 Wright & Miller, Federal Practice & Procedure: Civil
§ 2302.4 (3d ed. 2008) ("It is now well established that the right to a jury trial exists only
when there is some genuine issue of material fact to be determined."). The Rineys' claim
for postbankruptcy rent was pled as an unjust enrichment claim for specific performance,
an equitable claim. See Quan, 221 Kan. at 601 (actions for specific performance
equitable in nature). Their claim for prebankruptcy rent was also an unjust enrichment
claim seeking a setoff as they would only be entitled to relief if McGuire were successful
on his remaining counterclaim seeking reimbursement for improvements he made to the
home. Setoff is an equitable remedy to which no jury trial right attaches. See In re Estate
of Heiman, 44 Kan. App. 2d 764, 771-72, 241 P.3d 161 (2010).
McGuire's counterclaim for reimbursement was based on both legal and equitable
theories. His legal basis for relief was under contract. He claimed the Rineys had
breached their agreement that he would be reimbursed for improvements to the home.
Alternatively, he asserted this same claim as one based on unjust enrichment—an
equitable claim—on the theory the Rineys would be unjustly enriched by not paying him
for the improvements he made to the house. While it is true that one theory of relief
sought by McGuire was legal in nature, the essential nature of the action before the
district court was equitable in character because all other claims to be tried were in
equity. Once the district court had jurisdiction to decide the equitable claims, it then had
the authority to decide the remaining legal claim as well, and McGuire no longer had any
right to a jury trial on that one claim. See Quan, 221 Kan. at 601. The district court did
not deny McGuire's right to a jury trial by trying the case.
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III. Was McGuire fully heard on his reimbursement counterclaim?
McGuire next argues he was not given the opportunity to fully try his
counterclaim seeking reimbursement for improvements he made to the home. McGuire
never really ties this argument to a legal theory on which we could grant him relief. The
Rineys construe his claim as one grounded in procedural due process. McGuire
essentially argues he had more evidence to present but could not do so because the
district court would not allow him to. He asks us for a remand so he may fully present his
counterclaim to the district court.
McGuire's argument falls short. First, the only specific evidence he references is
William's testimony. In particular, he claims the district court would not let him call
William back as a witness to elicit testimony on his contract claim. That statement is true,
but the district court did so because the only issue McGuire said he wanted to ask
William about was "[t]he consent to do renovations to the property and the acceptance of
those renovations." William had submitted an affidavit answering that question and
McGuire had presented a written contract on the point, so William's testimony would
have been cumulative. The district court has inherent powers to exclude such evidence,
State v. Reed, 282 Kan. 272, Syl. ¶ 4, 144 P.3d 677 (2006), and it did not abuse its
discretion in exercising them here.
Second, McGuire mentions no evidence he could present if given another chance
that would overcome the reason his reimbursement counterclaim failed: He could not
show that the value of his work exceeded the rent he owed. Even if McGuire could pile
on evidence that the Rineys agreed to reimburse him for improvements, he could not
show damages. McGuire admitted that all the work he did was unfinished, and he never
disputed the Rineys' affidavits and testimony stating they could not sell the house in the
condition he left it. And as the district court found, it was impossible to tell from the
receipts and photos he submitted how much he spent on materials or even if they went
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into the house. McGuire came nowhere close to showing that the work he did outweighed
unpaid rent.
IV. Did the district court abuse its discretion in excluding two appraisal documents?
Finally, McGuire argues the district court erred in excluding two appraisal
documents under the rule against hearsay. Hearsay statements—out-of-court statements
offered for their truth—are inadmissible unless a statutory exception applies. K.S.A. 2019
Supp. 60-460. The appraisal documents here contained hearsay statements. They were
completed by third parties (the appraisers) who did not testify at trial, and McGuire was
offering them for their truth (to show the house's value). Thus, the documents were
admissible only if an exception applied.
McGuire claims the district court should have admitted the appraisals under the
business records exception in K.S.A. 2019 Supp. 60-460(m). Business records are
"[w]ritings offered as memoranda or records of acts, conditions or events to prove the
facts stated therein." K.S.A. 2019 Supp. 60-460(m). Statements in those records are
admissible "if the judge finds that: (1) They were made in the regular course of a
business at or about the time of the act, condition or event recorded; and (2) the sources
of information from which made and the method and circumstances of their preparation
were such as to indicate their trustworthiness." K.S.A. 2019 Supp. 60-460(m).
The district court may admit business records after a preliminary showing from the
party offering them of their authenticity and accuracy. We review the district court's
decision to admit or not admit hearsay evidence under the business records exception for
abuse of discretion. Unless the district court commits legal or factual error, it abuses its
discretion only if no reasonable person would agree with its decision. Wiles v. American
Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).
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Excluding the appraisals was not legal error because neither element of the
business records exception was met here. McGuire provided no evidence the appraisals
were made in the regular course of the businesses that prepared them and no evidence the
documents were prepared at or near the time the appraisals were conducted. Nor did he
show the appraisers' collection methods were reliable and trustworthy. Thus, the district
court committed no legal error in not applying the business records exception.
Accordingly, we hold the district court did not err in granting the Rineys' motions
for summary judgment, rejecting McGuire's demand for a jury trial and admission of the
appraiser reports, and granting judgment for the Rineys including their claim for an
award for postbankruptcy rent.
Affirmed.
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