Kaufman v. Oldenettel ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,847
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
LYNN KAUFMAN and KAREN F. KAUFMAN,
Appellees,
v.
STEPHEN W. OLDENETTEL,
Appellee,
BARRY MCNEW,
Appellant,
and
JOHN DOE and MARY DOE, et al.,
Defendants.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 18, 2020.
Affirmed.
Shannon S. Crane, of Hutchinson, for appellant.
John B. Swearer and Adam M. Teel, of Martindell Swearer Shaffer Ridenour LLP, of Hutchinson,
for appellees.
Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.
ATCHESON, J.: Lynn and Karen Kaufman sold about 45 acres of land near Pretty
Prairie, Kansas, on contract in 2011 to Barry McNew through his agent Stephen
Oldenettel. The transaction unraveled about six years later when the Kaufmans sued both
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McNew and Oldenettel in the Reno County District Court for breach of the contract.
McNew counterclaimed against the Kaufmans, contending they had first breached the
contract and cross-claimed against Oldenettel. The district court granted summary
judgment to the Kaufmans and after a series of proceedings on remedy entered an order
giving them possession of the land. McNew has appealed. We find no basis in his
appellate arguments for reversing the district court and, therefore, affirm the summary
judgment and related relief.
A SHORT FACTUAL AND PROCEDURAL HISTORY
Before turning to the points McNew has raised on appeal, we provide an overview
of the transaction and the litigation for context. We recognize our account is abbreviated
and rely on the parties' familiarity with the circumstances for details only peripherally
related to the remaining legal issues.
Oldenettel negotiated the sale of the land with the Kaufmans for a purchase price
of $166,000, including a $10,000 down payment. The Kaufmans agreed to carry the
balance of the purchase price with interest at an annual rate of 7 percent. McNew
provided the down payment, and the Kaufmans expected either Oldenettel or McNew to
make set monthly payments. About 18 months later, Oldenettel and the Kaufmans
renegotiated the annual interest rate to 20 percent and excluded mineral rights from the
sale.
McNew made regular payments under the amended contract through July 2017,
although some of them were late or for less than the full amount due. As we understand
matters, those periodic deficiencies were rectified to the Kaufmans' satisfaction. But
McNew stopped making payments in mid-2017, and the Kaufmans discovered he had not
been paying the property taxes. Those deficiencies were not rectified. The Kaufmans paid
back property taxes in August to avert a foreclosure and covered a delinquency on a
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property insurance policy. In the meantime, Oldenettel assigned to McNew any interest
he might have in the land contract or the property
The Kaufmans filed their action against McNew and Oldenettel in November 2017
for breach of the land contract and sought recovery of the land as a remedy. As we
indicated, McNew counterclaimed against the Kaufmans for their alleged breach of the
agreement; he contended those breaches should offset or mitigate any purported breaches
on his part. Throughout the litigation, McNew asserted the Kaufmans breached the
contract by retaining payments made under the Conservation Reserve Program, a federal
project providing subsidies to farmers to encourage removal of some environmentally
sensitive land from cultivation and planting of environmentally friendly crops on other
land. About 8 of the 45 acres were included in the program, generating annual payments
of less than $1,000. McNew alleged various causes of action against Oldenettel on the
grounds he had not been authorized to negotiate or enter into the amended land contract.
The district court granted summary judgment to the Kaufmans on their claim that
McNew had breached the contract when he failed to pay the property taxes and stopped
making monthly payments in mid-2017. The district then held several hearings, including
one with testimonial evidence, to determine the amount due on the contract to fix a
redemption period for McNew. McNew presented evidence about improvements he made
to the property and the payments under the federal conservation program. Ultimately, the
district court entered an order granting the Kaufmans clear title to the land and allowing
McNew a four-month redemption period. Along the way, McNew filed various motions
for reconsideration and finally asked the district court to set a supersedeas bond. The
district court ordered a bond of $75,000; McNew never posted the bond. He did,
however, file a notice of appeal, and this court granted him leave to docket the appeal
late. Oldenettel is not a party to this appeal.
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THE LEGAL ANALYSIS
On appeal, McNew challenges the district court's decision to grant summary
judgment to the Kaufmans on multiple grounds. We, therefore, begin with the
well-known standards governing summary judgment in the district court and on appellate
review. Parties seeking summary judgment (here, the Kaufmans) have the obligation to
show, based on appropriate evidentiary materials, there are no disputed issues of material
fact and judgment may, therefore, be entered in their favor as a matter of law. Trear v.
Chamberlain, 308 Kan. 932, 935, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman,
Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). In essence, the movants argue
there is nothing for a jury or a trial judge sitting as fact-finder to decide that would make
any difference. The party opposing summary judgment (here, McNew) must then point to
evidence calling into question a material factual representation made in support of the
motion. Trear, 308 Kan. at 935-36; Shamberg, 289 Kan. at 900. If the opposing party
does so, the motion should be denied so a fact-finder may resolve that dispute.
In ruling on a summary judgment request, the district court must view the
evidence most favorably to the party opposing the motion and give that party the benefit
of every reasonable inference that might be drawn from the evidentiary record. Trear,
308 Kan. at 935-36; Shamberg, 289 Kan. at 900. An appellate court applies the same
standards in reviewing the entry of a summary judgment. Trear, 308 Kan. at 936.
Because entry of summary judgment amounts to a question of law—it entails the
application of legal principles to uncontroverted facts—an appellate court owes no
deference to the district court's decision to grant the motion and review is unlimited. See
Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009);
Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 460, 276 P.3d 773 (2012).
McNew first argues that the land contract contains no acceleration clause that
would make all future payments due upon a default. Although that is true, the contract
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provides that the Kaufmans may recover the real property as a remedy for breach. The
Kaufmans neither sought nor obtained a judgment for the unpaid balance on the contract.
They received an order returning the land to them—a remedy the contract specifically
allowed. The district court, therefore, did not err in granting summary judgment in this
respect.
McNew next submits he substantially performed under the contract and the district
court failed to appropriately determine the amount due on the contract as it pertained to
establishing the redemption period. In responding to the Kaufmans' motion for summary
judgment, McNew controverted none of the factual representations they made in support
of their motion. Those representations, therefore, were admitted and could be considered
by the district court as undisputed facts for summary judgment purposes. By the time the
Kaufmans filed suit, McNew had not paid on the contract for three months and had
allowed delinquent property taxes to accumulate for considerably longer. Those were
material breaches of the contract, meaning McNew had not substantially performed.
Substantial performance constitutes satisfaction of the contract by fulfilling its
essential purpose. Dexter v. Brake, 46 Kan. App. 2d 1020, 1033, 269 P.3d 846 (2012);
Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 838-40, 954 P.2d 724 (1998).
Conversely, a material breach renders something "substantially less [than] or different
[from]" what the parties bargained for. Dexter, 46 Kan. App. 2d at 1034. Substantial
performance, then, stands "in direct contrast to . . . material breach." 46 Kan. App. 2d at
1034. Substantial performance overlooks minor deviations or irregularities in the
promised exchange if what the parties actually provide materially matches the contractual
obligations. Almena State Bank, 24 Kan. App. 2d at 839; see Harrison v. Family Home
Builders, LLC, 84 So. 3d 879, 889 (Ala. Civ. App. 2011); Pack 2000, Inc. v. Cushman,
126 Conn. App. 339, 349, 11 A.3d 181 (2011). Not paying on a contract when payment is
the principal required performance constitutes a material breach. Here, that would include
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the monthly payments and the property taxes, especially when the failure was a
continuing one. The district court did not err in so ruling.
The district court found that McNew had paid very little of the principal due on
the contract and the bulk of each month's payment covered the interest. The remaining
debt was a factor in determining the redemption period, along with the fair market value
of the property. See K.S.A. 2019 Supp. 60-2414(m). McNew argues that the district court
failed to give fair consideration to the payments under the Conservation Reserve Program
in its determination of the redemption period. McNew estimated the payments that should
have gone to him totaled about $6,000. The district court determined that more than
$160,000 remained due on the contract. In short, even crediting what McNew claimed he
was owed for the government payments, the adjusted balance wouldn't have materially
affected the statutory redemption period. McNew has not demonstrated a reversible error
(and probably no error at all) in this respect.
For his third point on appeal, McNew contends Oldenettel did not have the
authority to enter into the amended contract on his behalf. McNew, however, conceded
that Oldenettel was authorized to negotiate and sign the original contract with the
Kaufmans for him. Based on the summary judgment record, then, the Kaufmans knew or
had reason to know that Oldenettel acted as McNew's agent with respect to the original
contract. And even crediting McNew's assertion that he had withdrawn Oldenettel's
authority, the Kaufmans had no reason to know of that change in status. They, therefore,
reasonably relied on Oldenettel's apparent authority to handle the amended contract. In
that situation, McNew would be legally bound by the actions of Oldenettel as his
apparent agent in dealing with third parties, including the Kaufmans. See Town Center
Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan. App. 2d 1, 6, 148 P.3d 565
(2006) (discussing apparent agency and authority); Digital Alley, Inc. v. Z3 Technology,
LLC, 864 F. Supp. 2d 1050, 1072-73 (D. Kan. 2012) ("[T]ermination of actual authority
does not, by itself, terminate the apparent authority held by an agent," so a third party
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may rely on that apparent authority until "it is no longer reasonable" to do so.);
Restatement Third of Agency § 3.11 ("Apparent authority ends when it is no longer
reasonable for the third party with whom an agent deals to believe that the agent
continues to act with actual authority.").
The district court did not err in finding that Oldenettel acted with authority
(either actual or apparent) to bind McNew to the revised contract with the
Kaufmans. But that determination would not necessarily affect Oldenettel's
liability to McNew if he acted without authority. We have not been called upon to
and, therefore, do not offer any opinions about the legal rights and duties between
McNew and Oldenettel arising from their relationship as principal and agent.
Finally, McNew argues the district court acted prematurely and
improvidently in granting summary judgment while he still had discovery requests
outstanding to the Kaufmans and Oldenettel. As a general proposition, a district
court should not consider summary judgment until discovery has been completed.
National Restoration Co. v. Merit General Contractors, Inc., 41 Kan. App. 2d
1010, 1031, 208 P.3d 755 (2009). But the proposition is hardly ironclad and, in
practice, often operates more as a sound guideline than an impervious rule. A
district court has considerable latitude in determining when to rule on a summary
judgment motion.
Here, McNew has not detailed the outstanding discovery or explained how
the responses might have affected what he presented in opposition to the
Kaufmans' motion. Likewise, he has not shown that he availed himself of K.S.A.
2019 Supp. 60-256(f) to request a continuance from the district court to secure
additional affidavits or to undertake discovery necessary to respond to the motion.
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Under the circumstances, McNew has not shown the district court erred in ruling
on the Kaufmans' motion for summary judgment when it did. See Hauptman v.
WMC, Inc., 43 Kan. App. 2d 276, 298, 224 P.3d 1175 (2010); Garn v. Higgins,
No. 118,980, 2019 WL 638277, at *6 (Kan. App. 2019) (unpublished opinion);
Skyscapes of Castle Pines, LLC v. Fischer, No. 110,444, 2014 WL 5801042, at *6
(Kan. App. 2014) (unpublished opinion).
Affirmed.
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