Huffman v. Meier's Ready Mix ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 120,971
121,718
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DONNA L. HUFFMAN,
Appellant,
v.
MEIER'S READY MIX, INC., and
LEO K. MERANDO JR.,
Appellees.
MEMORANDUM OPINION
Appeal from Jefferson District Court; JANICE D. RUSSELL and RICHARD M. SMITH, senior judges.
Opinion filed January 22, 2021. Affirmed.
Donna L. Huffman, of the Law Office of Donna L. Huffman, of Oskaloosa, for appellant.
Christopher R. Mirakian, of Foland, Wickens, Roper, Hofer & Crawford, P.C., of Kansas City,
Missouri, for appellees.
Before ATCHESON, P.J., SCHROEDER and WARNER, JJ.
WARNER, J.: This personal-injury case arises from a collision where Donna
Huffman's vehicle was hit by a Meier's Ready Mix cement truck. A jury found Huffman
suffered $809,491 in total damages but also determined that she was 25% at fault for the
accident, resulting in a judgment against the defendants in the amount of $607,118.25.
Huffman appeals, challenging numerous rulings by the district court leading up to and
after the verdict. After reviewing the record and the parties' arguments, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
This case comes to us after a two-week jury trial. But because the record on appeal
does not include a transcript of the evidence presented at trial, the following facts are
largely taken from the parties' pleadings.
In June 2011, Huffman was travelling eastbound on K-92, headed to work in
Oskaloosa. Leo Merando, an employee of Meier's Ready Mix, was driving one of the
company's cement trucks behind Huffman. As Huffman slowed to turn left, Merando
attempted to pass and collided with the driver's side door of Huffman's vehicle. The
impact of the crash caused Huffman's car to spin off the road and into a ditch. Huffman
was transported to the hospital via ambulance. Huffman suffered injuries from the crash,
including a concussion, loss of memory, headaches, a speech deficiency, and loose teeth.
Huffman, who is an attorney, filed suit on her own behalf against Meier's Ready
Mix and Merando. In addition to her own claims based in negligence and various
intentional torts, Huffman included loss-of-consortium claims for Craig Reinmuth (who
married Huffman three months after the collision) and Lauren Huffman (Huffman's
daughter). Huffman's petition claimed $11,000,000 in damages. Huffman retained
counsel before the case proceeded to trial.
As the case progressed, the defendants filed motions for partial summary judgment
on both loss-of-consortium claims. The defendants argued that claims for loss of
consortium were governed by K.S.A. 2019 Supp. 23-2605 and are limited to claims by
spouses of the injured person. Thus, the defendants noted, the loss-of-consortium claims
asserted on behalf of Reinmuth and Lauren Huffman failed as a matter of law. After a
hearing, the district court granted the defendants' motions and entered summary judgment
on both consortium claims.
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Huffman's remaining claims proceeded to trial. After a two-week trial, the jury
found Merando and Meier's Ready Mix to be 75% at fault for the collision and
apportioned the remaining 25% of fault to Huffman. The jury found that Huffman had
suffered $809,491 in damages and, based on the defendants' comparative fault, returned a
verdict in the amount of $607,118.25 against them.
The district court filed a journal entry of judgment memorializing the jury's verdict
on December 6, 2018. Huffman's trial attorneys filed an attorney's lien on the judgment
for $236,907.68, and the court permitted the attorneys' withdrawal. Huffman resumed
representing herself.
On March 5, 2019, the defendants paid the full amount of the judgment then
pending—$610,657.88 in principal (including costs) and $9,730.80 in postjudgment
interest—to the Clerk of the Jefferson County District Court. The defendants argued that
this payment stopped the accrual of further interest on the judgment. Huffman disagreed,
arguing that interest should continue to accrue as long as the case was pending. Huffman
noted that, under the legal doctrine known as acquiescence, she could not access the
payment without waiving her right to further challenge the outcome of the trial, and
Huffman believed that the jury's damage award should have been greater—both in its
total amount and because she did not believe the jury should have found her at fault.
After considering Huffman's arguments, the district court found that postjudgment
interest stopped accruing when the defendants paid the full amount of the judgment
against them. At Huffman's request, the court ordered that the judgment be paid to the
Union State Bank of Oskaloosa and that the amount of Huffman's attorney fees be held
separately until the attorney's lien could be resolved. The court ultimately denied
Huffman's other postjudgment requests in an "Omnibus Decision, Journal Entry and Final
Order on Post Trial Matters." Huffman now appeals.
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DISCUSSION
Though the jury awarded Huffman damages for her injuries in the accident,
Huffman asserts that the verdict did not adequately compensate her in several respects.
She argues that the district court erred when it granted the defendants judgment on her
loss-of-consortium claims and that those claims should have gone to the jury to consider.
She claims the court made evidentiary and instructional rulings during the trial that
prevented the jury from accurately weighing the evidence and assessing her damages.
She also contends that the court erred when it denied her request for further interest on
the judgment. Finally, she argues—for the first time on appeal—that she should have
been allowed to include her attorney fees in her request for damages at trial.
After carefully considering each of these claims, we find Huffman has not
apprised us of error. Thus, we affirm the judgment of the district court.
1. Loss-of-consortium claims
K.S.A. 2019 Supp. 23-2605 defines claims for loss of consortium in this state,
stating in relevant part:
"Where, through the wrong of another, a married person shall sustain personal
injuries causing the loss or impairment of his or her ability to perform services, the right
of action to recover damages for such loss or impairment shall vest solely in such person,
and any recovery therefor, so far as it is based upon the loss or impairment of his or her
ability to perform services in the household and in the discharge of his or her domestic
duties, shall be for the benefit of such person's spouse so far as he or she shall be entitled
thereto."
Loss of consortium occurs when "a married person sustains personal injuries
causing the loss or impairment of his or her ability to perform [marital] services." Tice v.
Ebeling, 238 Kan. 704, 710, 715 P.2d 397 (1986). Damages for loss of consortium are
4
"based on the loss or impairment of [a spouse's] ability to perform services in the
household and in the discharge of his or her domestic duties." 238 Kan. at 710.
"Domestic duties" include "all the benefits that accrue as the result of the conjugal
relation, such as society, comfort, aid, assistance or any other act that tends to make
wedded life worthwhile." 238 Kan. at 710.
In her petition, Huffman brought two claims for loss of consortium: one on behalf
of Reinmuth, whom she married three months after the accident, and another on behalf of
her minor daughter. Before trial, the defendants moved for summary judgment on these
claims, as Kansas law only recognizes loss-of-consortium claims for a spouse, not a
partner or child. Based on the text of K.S.A. 2019 Supp. 23-2605 and Kansas Supreme
Court precedent, the district court agreed and granted the defendants' motions for
summary judgment.
Huffman now challenges that ruling in two respects. First, she contends that
Kansas should, as a matter of public policy, expand loss of consortium to include minor
children whose parent or parents have been injured because those children rely on their
parents for support. Second, she claims that the Kansas Legislature's decision to limit
loss-of-consortium claims to married people, rather than unmarried partners, violates her
equal-protection rights under federal and state law.
Summary judgment is appropriate when "the pleadings, the discovery and
disclosure materials on file, and any affidavits or declarations show that there is no
genuine issue as to any material fact and that the [moving party] is entitled to judgment as
a matter of law." K.S.A. 2019 Supp. 60-256(c)(2). To prevail on a motion for summary
judgment, a party must show that there is nothing a fact-finder could decide that would
change a court's ruling. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan.
891, 900, 220 P.3d 333 (2009). If a party opposing a motion for summary judgment
5
points to evidence that creates a genuine question for the fact-finder to resolve, summary
judgment should be denied. 289 Kan. at 900.
On appeal, we apply the same framework as the district court, and our review is
unlimited. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). And to the extent our
analysis requires an examination and interpretation of K.S.A. 23-2605 and the
constitutionality of that statute, both are questions of law we review de novo. See
Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019); Solomon v. State,
303 Kan. 512, 523, 364 P.3d 536 (2015).
1.1. The district court did not err in dismissing Huffman's consortium claim
brought on behalf of her minor child.
Huffman argues that the district court erred when it granted summary judgment on
the loss-of-consortium claim she asserted on behalf of her minor child. She argues that,
although K.S.A. 2019 Supp. 23-2605 only recognizes such claims for married persons,
we should interpret the policy aims of that statute broadly and recognize claims for other
members of a person's immediate family.
We note, at the outset, that the Kansas Supreme Court has long held that "neither
Kansas common law nor Kansas statutes" give rise to a loss-of-consortium claim by an
injured person's child. Natalini v. Little, 278 Kan. 140, 144, 92 P.3d 567 (2004); see
Klaus v. Fox Valley Systems, Inc., 259 Kan. 522, 531, 912 P.2d 703 (1996) (answering
certified question, holding "Kansas does not recognize that minor children have a cause
of action against a tortfeasor for direct negligent injury to their parent, resulting in an
indirect injury to them for loss of parental care and society"); Hoffman v. Dautel, 189
Kan. 165, Syl. ¶ 1, 368 P.2d 57 (1962) ("A minor child has no cause of action for
damages arising out of the disability of its father, caused by negligence of the defendant,
with attendant loss of acts of parental guidance, love, society, companionship and other
incidences of the parent-child relationship.").
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Instead, Kansas law limits compensable loss of consortium to those damages
suffered by a person's spouse. K.S.A. 2019 Supp. 23-2605. The statute does not articulate
a reason for this line, though we note that a parent who is injured may seek both
economic and noneconomic damages, including those related to childcare services and
other costs associated with raising children. See Wentling v. Medical Anesthesia Services,
P.A., 237 Kan. 503, 512-13, 701 P.2d 939 (1985) (economic damages include expenses
of caring for child).
Huffman acknowledges this legal reality. But she argues that, as a matter of public
policy, claims for loss of consortium under K.S.A. 2019 Supp. 23-2605 should be
expanded to include claims for parental consortium—that is, claims for losses suffered by
children when their parents have been injured and are unable to perform their parental
duties. We are not persuaded by Huffman's argument for two primary reasons.
First, our Kansas Supreme Court has explicitly held that Kansas law does not
permit such a claim. Natalini, 278 Kan. at 144; Klaus, 259 Kan. at 531. Huffman does not
address this precedent, nor does she indicate that the Kansas Supreme Court is departing
from its holdings. We are duty-bound to follow Kansas Supreme Court precedent unless a
party conclusively demonstrates that the court is departing from its previous position. See
State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). Huffman has not made
this showing.
Second, even in the absence of this precedent, Huffman is asking this court to
expand a statutory cause of action in the face of the plain and unambiguous language set
down by the legislature. "[I]t is not this court's role to rewrite statutes but to interpret
them." Natalini, 278 Kan. at 144. This limited role stems from the separation of
legislative and judicial power within our system of government. An appellate court
"merely interprets [the statutory] language" the legislature has chosen; we are "not free to
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speculate and cannot read into the statute language not readily found there." Steffes v.
City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007).
Similar to the plaintiff in Natalini, Huffman does not seek interpretation of K.S.A.
2019 Supp. 23-2605; she "seeks wholesale revision." See 278 Kan. at 144. That
responsibility lies with the legislature, not the courts. The district court correctly granted
judgment to the defendants on Huffman's loss-of-consortium claim on behalf of her child.
1.2. K.S.A. 2019 Supp. 23-2605 is not unconstitutional because it only permits
claims for loss of consortium by married persons.
Huffman also argues that the district court erred when it held she could not assert a
loss-of-consortium claim on behalf of Reinmuth, who was not married to her at the time
of the collision. When the parties briefed this matter before the district court, Huffman
presented a similar, policy-based argument that she asserted for her child—that it did not
make sense for the legislature to limit loss-of-consortium claims only to married persons.
On appeal, she takes a different tack—arguing for the first time that the legislature's
decision in K.S.A. 2019 Supp. 23-2605 to limit claims for loss of consortium to spouses
violates her right to equal protection under the law, guaranteed by the Kansas and United
States Constitutions.
Because appellate courts are courts of review, we ordinarily do not consider
arguments the district court did not have an opportunity to rule upon. This includes
constitutional claims, as such matters often hinge on particular factual findings or, at the
very least, benefit from previous consideration. See State v. Godfrey, 301 Kan. 1041,
1043, 350 P.3d 1068 (2015). But we have recognized an exception to this preservation
requirement when the newly asserted theory involves a purely legal question that does
not require further factual or legal development. See State v. Perkins, 310 Kan. 764, 768,
449 P.3d 756 (2019). We find that Huffman's equal-protection argument falls into this
8
narrow category of claims and therefore proceed to the merits of her constitutional
challenge.
A statute's constitutionality is a question of law subject to unlimited review. When
considering a constitutional claim, courts start from a presumption of constitutionality—
presuming the legislature acted within its permissible bounds when enacting the
challenged law—and resolve all doubts in favor of a statute's validity. Solomon v. State,
303 Kan. 512, 523, 364 P.3d 536 (2015); Tillman v. Goodpasture, 56 Kan. App. 2d 65,
68, 424 P.3d 540 (2018), rev. granted 309 Kan. 1354 (2019). Because a statute comes
before this court cloaked under this presumption, in most instances the party challenging
the statute bears the burden of proving its invalidity. State ex rel. Schneider v. Liggett,
223 Kan. 610, 616, 576 P.2d 221 (1978).
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution states that "[n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws." U.S. Const. amend. XIV. Section 1 of the Kansas
Constitution Bill of Rights provides: "All men are possessed of equal and inalienable
natural rights, among which are life, liberty, and the pursuit of happiness." Though these
constitutional provisions include different text and were adopted at different times, the
Kansas Supreme Court has consistently held that they are coextensive in their
protections. Alpha Medical Clinic v. Anderson, 280 Kan. 903, 920, 128 P.3d 364 (2006).
In fact, our court has noted that the equal-protection right afforded by section 1 is
"duplicative of" the federal right, and the test for determining whether a particular statute
violates section 1 is "identical" to the federal equal-protection standard. Leiker v.
Employment Security Bd. of Review, 8 Kan. App. 2d 379, 387, 659 P.2d 236 (1983).
Thus, "if a law does not violate the Fourteenth Amendment to the United States
Constitution, neither does it violate Section[] 1 . . . of the Bill of Rights of the Kansas
Constitution." 8 Kan. App. 2d at 387.
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The federal and state Equal Protection Clauses do not prevent States from
"'treat[ing] different classes of persons in different ways.'" Eisenstadt v. Baird, 405 U.S.
438, 446-47, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972). Instead, they forbid "'different
treatment . . . on the basis of criteria wholly unrelated to the objective of that statute.'"
405 U.S. at 447. In other words, "'[a] classification "must be reasonable, not arbitrary,
and must rest upon some ground of difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly circumstanced shall be treated
alike."'" 405 U.S. at 447.
Courts use a three-step process when reviewing an equal-protection claim. First,
we consider whether the legislation creates a classification resulting in different treatment
of similarly situated individuals. When a statute treats "'arguably indistinguishable'"
individuals differently, then we must determine the appropriate level of scrutiny—
whether rational-basis review, intermediate scrutiny, or strict scrutiny—to assess the
classification by examining the nature of the regulated conduct. And finally, we analyze
the statute under the appropriate scrutiny. See State v. LaPointe, 309 Kan. 299, 316, 434
P.3d 850 (2019).
We note that Kansas courts have appeared, from time to time, to conflate the first
two steps in this analysis, finding different groups are not similarly situated and thus
declining to conduct a full equal-protection analysis when the line drawn by the
legislature is a reasonable one. See In re Tax Appeal of Weisgerber, 285 Kan. 98, 105,
169 P.3d 321 (2007) (concluding KPERS participants and other public employees are not
arguably indistinguishable and holding in the alternative that there was a rational basis
for the challenged classification). But these are distinct steps in the analytical analysis.
The first step does not reach the merits of an equal-protection claim, but rather is a
threshold determination as to whether the plaintiff's claim involves the dissimilar
treatment of two arguably similar groups of people, and thus the right to equal protection,
at all.
10
Here, Huffman claims that the legislature violated her right to equal protection
when it allowed married persons to recover damages for loss of domestic services they
suffered while denying that recovery to people who are unmarried but in similar
relationships. Huffman has thus made the threshold showing that K.S.A. 2019 Supp. 23-
2605 draws a line between groups that are "arguably" similar for purposes of the Equal
Protection Clauses. We turn, therefore, to the appropriate level of judicial scrutiny for
Huffman's claim.
As Huffman correctly observes, the right to marry is a fundamental right subject to
strict scrutiny. See Obergefell v. Hodges, 576 U.S. 644, 671-72, 135 S. Ct. 2584, 192 L.
Ed. 2d 609 (2015). But Huffman does not argue that Kansas law unfairly prevented her
and Reinmuth from getting married before the collision (though we note that Reinmuth
was married to someone else at that time).
K.S.A. 2019 Supp. 23-2605 does not prevent people from getting married; instead,
it states that people who are married may recover damages for loss of consortium. The
United States Supreme Court has never held that marital status is a classification
triggering heightened equal-protection scrutiny. See Eisenstadt, 405 U.S. at 446-47. And
both the Kansas and United States Supreme Courts have recognized that challenged
classifications resulting in economic inequality—like those allowing the recovery of
damages to one group of people but not another—are subject to rational-basis review. See
Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed.
563 (1955); In re Weisgerber, 285 Kan. at 104-05; see also Smith v. Printup, 254 Kan.
315, 321-22, 866 P.2d 985 (1993) (holding legislature's decision to treat punitive
damages different from other tort damages is constitutional).
Thus, we must determine whether a rational basis exists to justify the legislature's
line-drawing. To withstand rational-basis review, a challenged statute "'must be
11
reasonable, not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation.'" Thompson v. KFB Ins. Co., 252 Kan.
1010, 1018, 850 P.2d 773 (1993). We will only find a statute unconstitutional if its
classification "'rests on grounds wholly irrelevant to the achievement of the State's
legitimate objective.'" In re Weisgerber, 285 Kan. at 105. And we are "free to consider
whether any potential legitimate purpose exists to support the legislative classification,"
regardless of whether "the conceived reason for the challenged distinction actually
motivated the legislature." 285 Kan. at 108-09. In other words, a line drawn by the
legislature "'will not be set aside if any state of facts reasonably may be conceived to
justify it.'" 285 Kan. at 105.
Huffman attempts to cast the distinction between married and unmarried couples
living together as merely a matter of choice, in all other respects equivalent. But Kansas
and federal laws treat persons who are married differently from unmarried persons in
myriad ways. Married persons are legally obligated to financially support one another.
Marriage affects a person's rights to own and to sell property, the amount of income tax
owed, the need for a will and insurance, and the execution of retirement plans. The
legislature could have believed that the economic interdependence between married
couples justified a specific claim for a spouse's losses related to the performance of
"services in the household and in the discharge of . . . domestic duties." K.S.A. 2019
Supp. 23-2605. Without this legislative directive, it could be very difficult for a jury to
practically determine which services for "domestic duties" were compensable and which
were not. Regardless of whether the legislature had this particular rationale in mind when
crafting Kansas' loss-of-consortium claim, legitimate purposes exist to support the
restriction of that claim to married persons.
Huffman argues that the Kansas Supreme Court's recent decision in Hodes &
Nauser, MDs v. Schmidt, 309 Kan. 610, 673-74, 440 P.3d 461 (2019), changed this
analysis. She points out that Hodes held the Kansas Constitution provides greater
12
protection for personal autonomy than the substantive due process protections of the
Fourteenth Amendment. See 309 Kan. 610, Syl. ¶ 6. And Hodes also observed that when
a statute implicates fundamental interests, such as the right to individual autonomy
discussed there, the presumption of constitutionality does not apply. See 309 Kan. 610,
Syl. ¶¶ 20, 21.
These arguments miss the mark, however. Huffman is correct that Hodes
recognized the possibility that Kansas law may recognize rights that federal law does not
or provide different protections for rights in some instances. But the central claims at
issue in Hodes were not equal-protection challenges, and the Hodes court made no
indication that it was departing from its longstanding position that a person's right to
equal protection is the same under the federal and state constitutions. See 309 Kan. 610,
Syl. ¶ 13 (listing three traditional standards of scrutiny). And since Hodes has been
decided, Kansas courts have continued to apply the traditional equal-protection
framework to those claims. See State v. Little, 58 Kan. App. 2d 278, 280, 469 P.3d 79(2020), rev. denied 312 Kan. ___ (November 24, 2020).
It is also true that when a person challenges a suspect classification subject to strict
scrutiny or a law implicates fundamental rights, the burden shifts to the State to
demonstrate the law is constitutional. E.g., Ashcroft v. American Civil Liberties Union,
542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004) (content-based restrictions
of speech are "presumed invalid" and subject to strict scrutiny by courts); Hodes, 309
Kan. 610, Syl. ¶ 16 ("Under strict scrutiny, the burden falls on the government to defend
challenged legislation."). But before this burden shifts, the party challenging the
government action must demonstrate it involves a fundamental right or suspect
classification to trigger this more exacting review. As we have discussed, an economic
classification based on marital status does not implicate a fundamental right and is
subject to rational-basis review, not strict scrutiny.
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The legislature's decision in K.S.A. 2019 Supp. 23-2605 to limit claims for loss of
consortium to married persons does not violate the Equal Protection Clauses of the
Kansas or United States Constitutions.
2. Alleged trial errors
Huffman also asserts that the district court erred when it took certain actions
during the trial. She argues that the court erroneously excluded evidence of a
conversation between Huffman and an insurance adjuster for the defendants during the
settlement negotiations on her property-damage claim. And she claims the content of the
verdict form was faulty in two respects—it lacked a separate line for future noneconomic
damages (as opposed to "pain and suffering" generally), and it indicated that future
damages were to be reduced to their present economic value.
At the outset, we observe that our ability to thoroughly review these claims is
hampered by the absence of various items from the appellate record. The record does not
include a transcript of the two-week jury trial, nor does it include the trial exhibits.
Appellate courts, as we have noted, are courts of review. Appellate judges are not present
at trial and thus rely on the record on appeal to ascertain the evidence considered and the
arguments made. Thus, "[w]hen facts are necessary to an argument, the record must
supply those facts and a party relying on those facts must provide an appellate court with
a specific citation to the point in the record where the fact can be verified." Friedman v.
Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013). The party
challenging the outcome of the trial must therefore ensure that we have an appropriate
appellate record so we may evaluate his or her claims. See Friedman, 296 Kan. at 644-
45; Southwestern. Bell Telephone Co.. v. Beachner Constr. Co., 289 Kan. 1262, 1275,
221 P.3d 588 (2009).
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As our discussion demonstrates, the absence of a trial record makes it difficult to
evaluate Huffman's allegations of error during the jury trial. We find—based on the
record before us—that Huffman has not demonstrated that the court's rulings were
outside the range of decisions permitted by Kansas law.
2.1. The district court did not err in ruling a statement made by the defendants'
insurer during settlement negotiations was inadmissible.
Huffman first argues that the district court erred when it granted the defendants'
motion in limine to exclude an email from an insurance claims adjuster during settlement
negotiations on Huffman's property-damage claim. Huffman sought to admit this
statement as evidence that the defendants had admitted fault, leaving the amount of
Huffman's damages as the only remaining question to be determined at trial. Huffman
also argues that the district court abused its discretion by not permitting her to offer the
email as rebuttal evidence at trial to demonstrate the defendants' acceptance of liability.
Shortly before the trial, the defendants filed a motion in limine seeking to exclude
"Evidence of Offers of Settlement" and "Mentions of Insurance." Huffman took issue
with this request because she wished to introduce an email from an insurance adjuster
working for the defendants' insurance company as evidence the defendants were not
contesting liability. In the email, which was sent during the adjuster's settlement
negotiations on Huffman's property-damage claim for her car, the adjuster stated: "I
generally don't send out a letter of acceptance on liability. Generally, it is done verbally
as was done in this case when we spoke on the phone." Huffman argued that the email
acted as a binding admission of liability for all her claims because the adjuster was an
agent of the defendant.
The district court found this email was inadmissible for multiple reasons,
including that it involved an insurance adjuster and was conducted during settlement
negotiations. And the court found that the affidavit Huffman provided to give context to
15
the email's statements only exacerbated these issues. On the whole, the court found that
the probative value of the email was substantially outweighed by its potential for undue
prejudice. The court noted, however, that its pretrial ruling was conditional on the parties'
arguments at that time, and that ruling could be revisited if Huffman were to make an
evidentiary showing during trial.
A district court's decision on a motion in limine involves a two-step process. First,
the court must determine whether the evidence in question will be inadmissible at trial.
Second, the district court must decide if a pretrial ruling, as opposed to a ruling during
trial, is justified. A pretrial ruling may be justified if the mention of the evidence during
trial would cause unfair prejudice, confusion of the issues, or could mislead the jury; if
consideration of the issue at trial might unduly interrupt and delay the trial; or if a pretrial
ruling would limit issues and save the parties' time, effort, and cost in trial preparation.
Schlaikjer v. Kaplan, 296 Kan. 456, 467, 293 P.3d 155 (2013).
Once a district court grants a motion in limine to exclude evidence, the party
limited by the motion must make a sufficient proffer of the excluded evidence at trial to
preserve the issue for appeal. See National Bank of Andover v. Kansas Bankers Surety
Co., 290 Kan. 247, 278-79, 225 P.3d 707 (2010); State v. Evans, 275 Kan. 95, 99, 62
P.3d 220 (2003). A proffer both "preserves the issue for appeal" and "provides the
appellate court an adequate record to review when determining whether the trial court
erred in excluding the evidence." National Bank of Andover, 290 Kan. at 274-75.
"Without a proffer, the issue is not preserved for appeal." Evergreen Recycle v. Indiana
Lumbermens Mut. Ins. Co., 51 Kan. App. 2d 459, 510, 350 P.3d 1091 (2015); see K.S.A.
60-405; City of Olathe v. Stott, 253 Kan. 687, 702, 861 P.2d 1287 (1993) ("Generally,
this court will not reverse a judgment because of the erroneous exclusion of evidence
unless a party proffers the evidence.").
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Because trial transcripts have not been included in the record on appeal, this court
cannot be certain if Huffman made an evidentiary proffer at trial, or if any sidebar
conferences or in-court discussions were had regarding the claims adjuster's email. The
defendants state that Huffman did re-raise the issue regarding the insurance adjuster's
statement at trial and offered the same affidavit she had been presented at the limine
hearing. But without a transcript, we cannot review and evaluate that evidence. See
Evans, 275 Kan. at 100. Nor can we evaluate what effect that email may have had if
introduced, as we have no way to analyze the strength of the other evidence presented at
the trial. See K.S.A. 2019 Supp. 60-261.
More importantly, however, we do not find the district court abused its discretion
when it excluded the adjuster's email. Evidence of a party's offer to settle a claim and any
settlement negotiations are inadmissible to prove liability. K.S.A. 60-452. And courts
must exercise caution in allowing evidence that a party is insured, given the potential
such evidence may influence a jury's verdict. See K.S.A. 60-454. Moreover, the email
does not actually state that the defendants acknowledged complete liability for the
collision; Huffman rather appears to rely on that correspondence to allow her to discuss
other oral conversations during her other settlement negotiations with the adjuster.
Because of the email's limited probative value and its potential to confuse the issues at
trial, the district court did not abuse its discretion when it found the email was
inadmissible and granted the defendants' motion in limine.
2.2. Huffman has not shown error in failing to include a separate category for
future pain and suffering damages on the verdict form.
Huffman also argues the district court erred by not including a separate category
of damages for future pain and suffering on the verdict form, but instead included only a
general line for noneconomic damages.
17
Kansas courts traditionally review challenges to verdict forms under the same
standards used to analyze jury instructions. Unruh v. Purina Mills, LLC, 289 Kan. 1185,
1197-98, 221 P.3d 1130 (2009). In reviewing jury instructions, this court engages in a
three-step process: (1) determining whether there is appellate jurisdiction and whether the
issue has been preserved for appeal; (2) considering the merits of the claim to determine
whether error occurred below; and (3) assessing whether the error requires reversal. State
v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018). Whether a party has preserved a jury
instruction issue affects this court's inquiry at the third step: When a party fails to object
to a jury instruction or verdict form, this court applies a "'clearly erroneous review
standard, whereby [the court] must be able to declare a real possibility existed that the
jury would have returned a different verdict if the trial error had not occurred.'" Unruh,
289 Kan. at 1197 (quoting Gilley v. Kansas Gas Service Co., 285 Kan. 24, 28, 169 P.3d
1064 [2007]); see K.S.A. 2019 Supp. 60-251(d)(2). "The party claiming error has the
burden to prove the degree of prejudice necessary for reversal." In re Care & Treatment
of Thomas, 301 Kan. 841, 846, 348 P.3d 576 (2015).
A party preserves an instruction error claim for appeal by timely objecting at trial
and by stating the grounds for the objection. See K.S.A. 2019 Supp. 60-251(c)(1),
(c)(2)(A), and (d)(1)(A)-(B). Due to the lack of a record, this court has no way of
knowing if Huffman timely objected to the verdict form. And the lack of a trial transcript
leaves this court unable to determine whether the jury might have returned a different
verdict if the verdict form had included a separate category of damages for future pain
and suffering.
As an aside, we note that the verdict form's failure to distinguish Huffman's past
and future noneconomic damages is not without benefit to Huffman. If the jury had found
substantial future noneconomic damages, those damages would have been reduced to
their present value—a practice required by Kansas law but challenged by Huffman in this
18
appeal (as we discuss below). Because the jury did not specifically award future pain and
suffering, this reduction did not occur.
The burden is on the party making a claim on appeal—here, Huffman—to show
facts in the record that support the claim; without such a record, the claim of error
necessarily fails. See Friedman, 296 Kan. at 644-45. Huffman has not demonstrated the
district court erred, and she certainly has not shown the district court committed clear
error, when it did not include a separate line on the verdict form for future noneconomic
damages in this case.
2.3. There was no error in reducing the award for Huffman's future damages to
its present value.
Huffman next contends the district court erred because the verdict form instructed
the jury to reduce any award of future medical expenses or future economic loss to their
present value. She points out that the verdict form did not include a formula explaining to
the jurors how to calculate this reduction. In fact, she appears to take issue with any
reduction at all, arguing a reduction in future damages is a "mandate [for] a litigant to
gamble their money at an annuity rate."
Kansas law has long recognized that defendants are entitled to have any future
damages reduced to their present value, provided they give the court or the jury the
appropriate tools to make that determination. See Laterra v. Treaster, 17 Kan. App. 2d
714, 727-28, 844 P.2d 724 (1992); see also PIK Civ. 4th 171.02 (2016 Supp.) (including
explanations that all future damages be "reduced to present value"); PIK Civ. 4th 181.04
(2016 Supp.) (verdict form for comparative fault, requiring all future damages be
"reduced to present value"). These principles were reflected in the jury instructions the
district court provided in this case.
19
It appears, from Huffman's brief, that the parties presented exhibits at trial to
develop the present value of Huffman's future losses, as well as witness testimony. But
these exhibits are not part of the record on appeal, and as we have discussed, we do not
have a trial transcript to review. Moreover, to the extent Huffman is claiming error in the
manner the jury was instructed, an issue raised for the first time on appeal, any analysis
under the clearly erroneous standard would require a review of the record as a whole,
including the other instructions, counsel's arguments, and all the evidence presented. See
In re Thomas, 301 Kan. at 849. This is an analysis we cannot undertake on the record
before us.
Huffman provides no legal authority for how we may evaluate her arguments
without this crucial information. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647(2017) (failure to adequately support claim may result in appellate court declining
review). And though she did include an appendix to her brief titled "Compound Interest
Calculator," this document is not part of the record on appeal. See Hajda v. University of
Kansas Hosp. Authority, 51 Kan. App. 2d 761, 769, 356 P.3d 1 (2015) ("Including
documents in the appendix of a brief does not make those documents part of the record
that may be considered for appellate review."). We find that Huffman has not
demonstrated error in the jury's award of future damages.
3. Prejudgment and postjudgment interest
We turn now from Huffman's trial claims to her challenges to the district court's
rulings after it entered judgment in her favor. Huffman argues the district court erred
when it denied her requests for prejudgment interest, as well as postjudgment interest
after the defendants had paid the full amount of the judgment to the court clerk. Huffman
asserts that, as a matter of equity, she should have been awarded prejudgment interest
(since, as we have noted previously, her damages for future losses were reduced to their
present value). She also argues that because she cannot access the funds paid into court
20
without acquiescing to the judgment—and thus forfeiting her right to appeal—it is only
fair that the judgment continue to accrue interest at the statutory postjudgment rate.
In Kansas, prejudgment interest—that is, interest on losses before judgment is
entered in a plaintiff's favor—is governed by K.S.A. 16-201. Owen Lumber Co. v.
Chartrand, 283 Kan. 911, 925, 157 P.3d 1109 (2007). Under this statute, "[c]reditors
shall be allowed to receive interest at the rate of ten percent per annum, when no other
rate is agreed upon, for any money after it becomes due." K.S.A. 16-201. Appellate
courts only overturn the grant or denial of prejudgment interest when a district court
abused its discretion in applying this statute. 283 Kan. at 925.
Prejudgment interest is appropriate under K.S.A. 16-201 for "liquidated claims."
283 Kan. at 925. "A claim becomes liquidated when both the amount due and the date on
which such amount is due are fixed and certain" or when this amount "become[s]
definitely ascertainable by mathematical calculation." 283 Kan. at 925. Conversely,
interest is not recoverable on claims that are "not ascertainable by computation" or "based
on some fixed standard of measurement." Foster v. City of Augusta, 174 Kan. 324, 332,
256 P.2d 121 (1953).
In most tort cases, a plaintiff's damages are neither fixed nor certain, but rather are
disputed and must be determined by the fact-finder. See Safety Technologies, L.C. v.
Biotronix 2000, Inc., 136 F. Supp. 2d 1169, 1175 (D. Kan. 2001); see also Foster, 174
Kan. at 332 (prejudgment interest is not available when plaintiff's claims are "in tort,
unliquidated, and not ascertainable by computation until the date the court entered its
judgment"). That was certainly the case here. Huffman asserted that she suffered
$11 million in damages. The defendants disputed that amount, as well as the extent of
their liability. And the jury ultimately returned a verdict against the defendants for
$607,118.25. It was not until this verdict was journalized—on December 6, 2018—that
Huffman's damages were determined and became payable.
21
Huffman's attempt to contrast prejudgment interest to the reduction of her future
damages to their present value is misplaced. Under Kansas law, defendants are entitled to
have any future damages reduced to their present value when they have made the proper
showing. See Laterra, 17 Kan. App. 2d at 727-28. Prejudgment interest is interest that
has already accrued on a known amount that has already become due. See K.S.A. 16-201.
Both types of interest exist to ensure plaintiffs are compensated for the damages they
incur as those damages arise and are known. One principle does not displace the other.
The district court correctly found that Huffman's tort damages had not accrued
prejudgment interest.
Huffman also argues that the district court erred when it found that postjudgment
interest stopped accruing when the defendants paid the entire judgment against them. As
background, the district court filed the journal entry of judgment against the defendants
on December 6, 2018. On March 5, 2019, the defendants paid the entire amount of the
judgment plus Huffman's costs ($610,657.88) and postjudgment interest to date
($9,730.80) to the district court. Huffman objected, claiming this payment could not
satisfy the judgment because the funds were paid into court rather than to her personally.
After a hearing, the court found that the judgment against the defendants was fully
satisfied when they deposited the funds into court, and thus postjudgment interest was no
longer accruing. At Huffman's request, the court ordered the entirety of the judgment,
minus the amount due Huffman's attorneys, to be paid into an account at the Union State
Bank of Oskaloosa to be held during the pendency of the appeal.
Postjudgment interest accrues automatically from the date a district court enters a
judgment for damages in a party's favor. See K.S.A. 16-204(d); Bluestem Telephone Co.
v. Kansas Corporation Comm'n, 38 Kan. App. 2d 1092, 1096-97, 176 P.3d 231, rev.
denied 286 Kan. 1176 (2008). That said, postjudgment interest is "'not a measure of
damages, but a compensation fixed by law.'" McGuire v. Sifers, 235 Kan. 368, 383-84,
22
681 P.2d 1025 (1984) (quoting 47 C.J.S., Interest & Usury § 23, p. 69). It is a procedural
mechanism "'designed to compensate "a successful plaintiff for the time between his
entitlement to damages and the actual payment of those damages by the defendant."'"
ARY Jewelers, L.L.C. v. Krigel, 277 Kan. 464, 479, 85 P.3d 1151 (2004).
For this reason, postjudgment interest stops accruing when a defendant pays the
full amount of the judgment—either to the plaintiff or into court. See Schaefer &
Associates v. Schirmer, 3 Kan. App. 2d 114, Syl. ¶ 8, 590 P.2d 1087 (1979) ("If the
judgment debtor wishes to avoid the accrual of interest on appeal, he must tender the
amount of the judgment or pay the amount into court."); see also Bartlett v. Heersche,
209 Kan. 369, 374, 496 P.2d 1314 (1972) ("Once a judgment debtor pays the full amount
of money payable on a judgment into court, interest is not recoverable on the monies
deposited in court."). Under this precedent, the district court correctly ruled that the
defendants' payment of the full judgment to the district court clerk in March 2019
stopped further interest from accruing.
Huffman acknowledges this caselaw. But she argues that it is not fair that
postjudgment interest stopped accruing in March 2019 because she cannot access those
funds without acquiescing to the judgment and forfeiting her right to appeal. In essence,
Huffman asserts that because the legal doctrine of acquiescence prevents her from
accessing the judgment funds while her appeal is pending, the defendants did not actually
pay the judgment "unconditionally." See McGuire, 235 Kan. at 383 (noting a tender,
which stops the accrual of postjudgment interest, must be "'absolute and unconditional to
be effectual'"). We disagree.
An "unconditional tender" occurs when a defendant pays a judgment in full and
thus ceases to exert dominion over the funds. Shutts v. Phillips Petroleum Co., 240 Kan.
764, 775, 732 P.2d 1286 (1987). Here, the defendants paid the full amount of the
judgment, including costs and interest to date, into the district court in March 2019. The
23
"condition" Huffman complains of is not a contingency imposed by the defendants, but a
principle imposed by Kansas law to prevent a person from accepting the benefits of a
judgment while at the same time seeking to undermine its foundation.
Under the legal rule of acquiescence, a party who voluntarily accepts the benefit or
burden of a judgment loses his or her right to appeal it. Alliance Mortgage Co. v. Pastine,
281 Kan. 1266, 1271, 136 P.3d 457 (2006); see Hemphill v. Ford Motor Co., 41 Kan.
App. 2d 726, 728, 733, 206 P.3d 1 (2009). It is true, as Huffman acknowledges, that
barring exceptional circumstances she may not accept payment of the judgment while
still hoping to obtain "greater damages on the same claims" on appeal. 41 Kan. App. 2d
at 728-29. But this principle applies equally to plaintiffs and defendants. Defendants who
have paid the judgment against them cannot ordinarily challenge that judgment on
appeal. See Vanover v. Vanover, 26 Kan. App. 2d 186, 188, 987 P.2d 1105 (1999).
Indeed, the defendants here have not done so.
The legal consequences of acquiescence do not alter the undisputed fact that the
defendants paid the full amount of the judgment to the district court clerk in March 2019.
Huffman will receive those funds when this appeal—which she has chosen to pursue—
has concluded. The district court correctly ruled that postjudgment interest stopped
accruing when the defendants unconditionally paid the full amount of the judgment
against them.
4. Attorney fees
In her final argument on appeal, Huffman asserts that she should have been
allowed to submit her attorney fees as an element of damages to the jury. She asserts that
the general principle followed by Kansas law—that each person is responsible to pay his
or her own attorney fees—deprives injured people of complete compensation for the
damages they have suffered. Huffman claims that this approach to attorney fees,
24
commonly called the American Rule, invades the province of the jury and thus violates
section 5 of the Kansas Constitution Bill of Rights.
While section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right
of trial by jury shall be inviolate," that right is not absolute. Section 5 only preserves the
common-law right to a jury trial as it existed at the time of its adoption. Hilburn v.
Enerpipe Ltd., 309 Kan. 1127, 1133-34, 442 P.3d 509 (2019). And this court has
previously found that there is "no authority to suggest that there was a common law right
to recover attorney fees and expenses when the Kansas Constitution was adopted—much
less that a jury must make a determination regarding when attorney fees should be
awarded." Harder v. Foster, 58 Kan. App. 2d 201, 207, 464 P.3d 382 (2020); see Wolf v.
Mutual Benefit Health & Accident Association, 188 Kan. 694, 700, 366 P.2d 219 (1961).
Rather, Kansas courts are "prohibited from awarding attorney fees and expenses unless
specifically authorized by statute or contract." Harder, 58 Kan. App. 2d at 206 (citing
Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 [2013]); see
also Kansas Supreme Court Rule 7.07(b) (2020 Kan. S. Ct. R. 50) (appellate court may
only award attorney fees when district court had the power to do so).
Huffman does not explain how her claim can prevail despite this daunting
precedent. But we decline to consider her argument in detail for another reason. As we
have previously explained, claims cannot generally be raised for the first time on appeal.
Godfrey, 301 Kan. at 1043; Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34). It
does not appear from the appellate record that Huffman raised her constitutional
argument regarding attorney fees before the district court. Nor does it appear that she
requested a separate item of damages based on her attorney fees. And she has not
demonstrated, either to the district court or on appeal, any statutory or contractual basis
for her attorney-fee request. We find that this issue is not properly before us. See State v.
Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).
25
It appears Huffman's attorney-fee argument is an effort to challenge the
$236,907.68 from the judgment the district court set aside to pay the lien asserted by
Huffman's trial attorneys. Huffman asserts that the jury found she suffered "nearly
$900,000 in [gross] damages," and yet her net recovery after accounting for her 25%
comparative fault and her attorney fees will be "under $400,000." But the reasonableness
of the amount Huffman agreed to pay her trial attorneys, which was calculated based on a
percentage of her substantial damage award, is not before us.
We acknowledge that Huffman suffered serious injuries as a result of the
collision—injuries the jury compensated through its $607,118.25 award in her favor, after
taking into account the fault of all parties. We can understand Huffman's efforts to
maximize compensation for her losses. But Huffman has not apprised us of any error by
the district court. The court's judgment and related postjudgment rulings are affirmed.
Affirmed.
***
ATCHESON, J., concurring: I generally join in the majority opinion except for
section 1.2 dealing with Plaintiff Donna L. Huffman's equal protection challenge to the
Kansas statute governing claims for loss of consortium. See K.S.A. 2019 Supp. 23-2605.
I would frame and analyze the equal protection challenges under both the Kansas
Constitution and the Fourteenth Amendment to the United States Constitution somewhat
differently. Nonetheless, I agree with the result—Huffman has failed to show she has
been denied equal protection because the statute covers spouses but not unmarried
partners.
26