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No. 100,664 IN THE COURT OF APPEALS OF THE STATE OF KANSAS RIC ALMACK, d/b/a RIC ALMACK ESTATE SALES & APPRAISALS, Appellant, v. JIM STEELEY, a/k/a JAMES W. STEELEY, d/b/a STEELEY & ASSOCIATES, Appellee.

SYLLABUS BY THE COURT 1. Jurisdictional issues can be raised by the appellate court at any time.

2. As a general rule, anything which savors of acquiescence in a judgment cuts off the rights of appellate review.

3.

The gist of acquiescence sufficient to cut off the right to appeal is voluntary

compliance with the judgment.

4. Filing an aid in execution on a judgment constitutes acquiescence in that judgment.

Appeal from Johnson District Court, JAMES F. VANO, judge. Opinion filed May 14, 2010. Appeal dismissed.

David C. Kirk, of Overland Park, for the appellant.

Jim Steeley, appellee pro se.

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Before CAPLINGER, P.J., PIERRON and BUSER, JJ.

PIERRON, J.: Ric Almack, d/b/a Ric Almack Estate Sales & Appraisals, appeals the judgment of the district court granting Almack default judgment, as a sanction against Jim Steeley, d/b/a Steeley & Associates, and awarding Almack $5,717.50. The court affirmed a magistrate court's decision as a sanction for discovery violations but reduced the amount awarded by the magistrate court from nearly $25,000 to $5,717.50. Almack argues the district court erred in denying him an election of remedies, denying the full measure of contract damages, and failing to affirm the magistrate judge's award of attorney fees. We affirm the district court's judgment but do so as a consequence of Almack acquiescing in the judgment. Almack is in the business of estate sales, buy-outs, liquidations, and appraisals. Steeley was engaged in the business of buying and selling used office equipment. In early February 2005, Almack purchased the assets of the Japanese Consulate in Kansas City, Missouri. On February 10, 2005, Steeley signed an agreement to serve as broker for Almack of multiple office-related items purchased from the Japanese Consulate. The agreement included 12 electronic items (copiers, fax machine, shredders, and etc.) and provided:

"Packing and moving of these items is the responsibility of the broker to the sale location. If the items are not sold and returned the client is responsible for packing and moving the items at that time." "Safekeeping and insurance of property is responsibility of bailee broker during the term of this contract. All property listed above, to be sold, is to be handled by broker. Client and broker must agree in writing for item to be sold at a price lower than that listed for each item. Fax confirmation is considered writing for this contract agreement. Broker will deduct 50% from the total proceeds for the sale(s)."

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On February 10, 2006, Almack made a demand upon Steeley for an accounting of the proceeds of sale, for payment of 50% of the gross sales, and for return of the unsold equipment. On March 22, 2006, Almack filed a limited actions petition seeking judgment against Steeley based on breach of contract. The magistrate court later granted Almack's motion for leave to amend his petition. Almack was allowed to pick up eight of the items on September 7, 2006, and had 20 days to amend his petition to include claims for loss of value.

On September 19, 2006, Almack filed an amended petition alleging three causes of action: (1) breach of contract damages of expected payment of proceeds in the amount of $12,285; (2) conversion for the fair market value of the property, minus returned property, in the amount of $22,825; and (3) diminuation of value of the returned items in the amount of $1,745. Steeley filed an answer and counterclaim alleging that Almack had failed to pick up the equipment at Steeley's office, he was entitled to damages for the repair and storage of the equipment, and Almack had fraudulently misrepresented the quality of the equipment.

After Almack filed his original petition, he started discovery requests and subpoenas for Steeley's business records involving Steeley, his wife, and their business dealings. Steeley objected to Almack's discovery efforts. Some of the requests and subpoenas were honored, others were declined.

On March 19, 2007, the magistrate court ordered Steeley, by journal entry dated April 16, 2007, to provide within 30 days an itemization of all deposits over $100 for all bank accounts owned by Steeley, his wife, or Steeley & Associates for the period of February 17, 2005, through April 13, 2006, and to provide all repair bills and evidence of diminished value of returned equipment for Steeley's counterclaim. The magistrate court also ordered both parties to make full disclosure of witnesses, expert witnesses, reports,

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and any evidence of efforts to sell the equipment. The court's order stated: "If the Court's Orders are not complied with, severe sanctions may be imposed."

Almack had previously filed a motion for default judgment on January 8, 2007, based on Steeley's failure to following the magistrate court's discovery orders and failure to participate in mediation. On May 9, 2007, Almack filed his fourth motion for order to compel production of documents and motion for sanctions. On June 18, 2007, the court held a hearing on Almack's motion but Steeley did not appear at the hearing, although he later acknowledged notification. By journal entry filed June 20, 2007, the court granted judgment on the pleadings as a sanction for Steeley's failure to comply with "the reasonable and necessary orders of the court regarding discovery." The court granted judgment in Almack's favor in the amount of $22,825 for the conversion claim, $1,745 for the diminuation of value claim, and $500 for attorney fees resulting from Almack's third motion to compel. The court indicated it served no purpose to award attorney fees for Almack's fourth motion to compel.

On June 25, 2007, Steeley filed a notice of appeal of the limited action decision to the regular civil docket of the district court. In the meantime, Almack obtained an order for Steeley to appear for a hearing in aid of execution on September 20, 2007. Steeley failed to appear at the hearing in aid. The magistrate court found Steeley to be in contempt and ordered him to serve 48 hours in jail unless he provided copies of his wife's bank statements for the past 90 days. The district court set the case for trial on January 7, 2008.

All parties appeared for a hearing on January 7, 2008. The initial discussion focused on the posture of the case because a trial on the merits had not occurred in limited actions and the only judgment in existence was for Steeley's failure to comply with discovery requests. The district court considered its review to be whether entry of judgment was the appropriate sanction for Steeley's failure to comply with discovery 4

requests. The court heard argument on Steeley's failure to produce a completed witness list, failure to produce information related to cash deposits in bank accounts, and failure to produce evidence of purchase parts, invoices, expenses, storage, and moving fees in accordance with the magistrate's motion to compel.

The district court ruled from the bench on January 7, 2008, that the magistrate court's sanction of judgment in favor of Almack was an appropriate response to Steeley's failure to comply with discovery. However, the district court disagreed with the amount of the judgment. The court concluded there was an admitted written agreement for a bailment and a 50% commission on anything sold. The court found that when Almack filed his petition in limited actions, the property had a value on March 20, 2006, of $12,285. This amount, $12,285, was an estimation by Almack of a reduced value of 50% from the date the items had been put on consignment with Steeley on February 10, 2005.

In establishing a new judgment amount, the district court used the current value, as claimed by Almack, of the four items that were not returned to Almack for a total of $10,190. Under the bailment contract, Almack was entitled to 50% commission, resulting in a judgment value of $5,095. The court also concluded that Almack was entitled to judgment under his diminution of value claim (count III - $1,745). The court subtracted the value of the converted typewriter from the diminution value and, after determining 50% per the bailment, this resulted in an additional judgment of $622.50. The total judgment entered by the court was $5,717.50.

There was no journal entry filed solely for the proceedings on January 7, 2008, until much later--June 12, 2008. On January 22, 2008, Steeley filed a motion for reconsideration and/or motion to alter or amend the order of judgment. On April 9, 2008, the district court held a hearing on Steeley's motion for reconsideration. On May 9, 2008, the court entered its written judgment formalizing the $5,717.50 judgment from January 7, 2008, and also denying the motion for reconsideration. 5

Almack filed a notice of appeal on May 14, 2008. Steeley filed a cross-appeal on June 30, 2008. Almack filed a motion to dismiss Steeley's cross-appeal as untimely. This court granted leave for Steeley to file his cross-appeal. Other necessary procedural facts will be supplied in the discussion below.

An issue not raised by Steeley, who appears pro se, is the issue of Almack's acquiescence in the district court's judgment. We believe this is a jurisdictional issue which we may raise sua sponte. This court issued a show cause order asking for the positions of the parties on this issue. We now proceed to meet the issue.

Almack has clearly taken action on his judgment from the district court. The question is whether those actions constitute acquiescence and necessitate a dismissal of this appeal. We believe they do.

On January 7, 2008, the district court rendered its ruling from the bench for a $5,717.50 judgment in favor of Almack. On January 22, 2008, Steeley filed his motion for reconsideration and/or motion to alter or amend order of judgment. Yet even without a written judgment, on February 8, 2008, Almack obtained an order signed by the court for Steeley to appear for a hearing in aid of execution. Prior to appearing at the March 27, 2008, hearing in aid, Steeley filed an objection on March 24, 2008. On April 9, 2008, the court held a hearing on Steeley's motion for reconsideration. As previously stated, on May 9, 2008, the court entered its written judgment formalizing its $5,717.50 judgment from January 7, 2008. On June 12, 2008, the court entered a journal entry specifically for the January 7, 2008, judgment.

On May 13, 2008, Almack filed an application for examination of Steeley in aid of execution. On May 14, 2008, Almack filed a notice of appeal. The district court granted an order for hearing in aid of execution for July 9, 2008. On May 19, 2008, Steeley filed 6

a motion for stay of execution pending disposition of plaintiff's appeal. On May 28, 2008, Almack filed a motion to strike Steeley's motion to stay arguing Steeley's only remedy was to file a supersedeas bond. He also requested sanctions against Steeley for filing the motion for stay.

On June 26, 2008, the district court heard argument on Steeley's motion to stay. The issue of acquiescence was raised sua sponte by the court but not substantively addressed by either party. Initially, the court stated that even if a case is docketed on appeal, unless the judgment debtor files a supersedeas bond, there is not any stay of the collection proceedings. Almack argued this case was not an execution sale, it was a stay of a hearing in aid of execution, and he was entitled to pursue collection efforts unless and until Steeley posted a supersedeas bond. The court pointed out that Steeley was not the appealing party and he did not have to post a supersedeas bond. Almack responded that he might have to post a bond to stay execution on the judgment. The following colloquy occurred:

"THE COURT: The question for the appellate court may be whether or not you, by your collection actions, are acquiescing in the judgment that you are appealing. "MR. KIRK: And I'm willing to address it. "THE COURT: And that is a different issue for the appellate court. "MR. KIRK: An aid in execution is not an execution. I'm looking for assets that I can actually - - . "MR. STEELEY: Your Honor, execution of proceedings. It's the same thing. "THE COURT: That's up to the appellate court. It may be that he acquiesces. That's not for me to address."

The district court denied Steeley's motion to stay the hearing in aid proceedings. On June 27, 2008, the court entered its written order denying the stay and also denying

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Almack's motion to strike and motion for sanctions. On June 30, 2008, Almack filed a motion for change of judge.

On June 30, 2008, Steeley also filed a notice of cross-appeal from the judgment entered on June 12 [sic] and all previous rulings. On July 8, 2008, Steeley filed a motion to continue the hearing in aid. On July 9, 2008, Almack filed a request for citation of contempt against Steeley for failing to appear. The order was granted by the district court. As stated earlier, neither Almack nor Steeley raised the issue of acquiescence in this appeal. Further, Steeley did not file a cross-appellant's brief. Although acquiescence has not been alleged on appeal, we can still address the issue.

Acquiescence in the lower court's judgment by an appealing party raises a jurisdictional issue. See Varner v. Gulf Ins. Co., 254 Kan. 492, 497-98, 866 P.2d 1044 (1994) ("where a party is found to have acquiesced in the judgment of a trial court, appellate jurisdiction is lacking and the party's appeal must be dismissed"); First Nat'l Bank in Wichita v. Fink, 241 Kan. 321, 736 P.2d 909 (1987); Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 137, 38 P.3d 757 (2002). Jurisdictional issues can be raised by the appellate courts at any time. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008) (an appellate court has a duty to question jurisdiction on its own initiative).

Acquiescence in a judgment, which cuts off the right of appellate review, occurs when a party voluntarily complies with the judgment by assuming the burdens or accepting the benefits of the judgment contested on appeal. Younger v. Mitchell, 245 Kan. 204, 206-07, 777 P.2d 789 (1989). The doctrine of acquiescence is based on the inconsistency between accepting some benefit or burden from a judgment while appealing the judgment itself. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl.

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