Rawlins-Roa v. City Hall Lofts, L.P.

347 P.3d 1215 (Table)

M. Demaris RAWLINS–ROA, Appellant

v.CITY HALL LOFTS, L.P., EPV City Hall COGP, LLC, and EPCO, LLC, a/k/a f/k/a The Eagle Point Companies, LLC, Appellees.

112,023.

Court of Appeals of Kansas.

May 15, 2015.

Gregory V. Blume, of Overland Park, for appellant.

Meagan L. Patterson and Kelly M. Cochran, of Waldeck & Patterson, P.A., of Prairie Village, for appellees.

Before HILL, P.J., GREEN and LEBEN, JJ.

MEMORANDUM OPINION

PER CURIAM.

City Hall Lofts, L.P. (City Hall), filed a limited action unlawful detainer petition to evict tenant M. Damaris Rawlins–Roa from her apartment. She filed a counterclaim, alleging unlawful retaliation under the Fair Housing Act. The trial court dismissed the eviction claim, explaining in a journal entry that the parties had settled the claim and that Rawlins–Roa had agreed to move out of her apartment. Rawlins–Roa later challenged the journal entry—arguing that it was void—but the trial court denied her relief.

On appeal, Rawlins–Roa makes several arguments challenging the same journal entry. Three of her arguments—that the journal entry did not provide notice that she was under threat of eviction, that the journal entry did not state that the court was entering a judgment for possession, and that the journal entry did not include her signature—fall under K.S.A.2014 Supp. 60–260(b)(4), which provides relief from void judgments. Those arguments fail because despite any irregularities in the journal entry, Rawlins–Roa received notice and an opportunity to be heard on the eviction issue. She was clearly aware of the eviction claim against her because she hired an attorney who filed an answer to contest City Hall's action. Her attorney also had the opportunity to advise the court about the settlement and her agreement to vacate the apartment. Finally, the trial court had jurisdiction over the subject matter (eviction action) and over the parties.

Rawlins–Roa's remaining arguments on appeal—that the journal entry failed to provide findings of fact and conclusions of law and that the trial court lacked proof of a settlement agreement between her and City Hall—fall under K.S.A.2014 Supp. 60–260(b)(6). This subsection provides relief from a final judgment for “any other reason that justifies relief.” Those arguments also fail because they were not raised within a reasonable time as required under K.S.A.2014 Supp. 60–260(c). Because all of Rawlins–Roa's challenges to the journal entry settling the eviction claim fail, we affirm the trial court's judgment.

In April 2011, City Hall sued Rawlins–Roa to evict her from her apartment following a notice to quit the premises. The following month, Rawlins–Roa filed a counterclaim, alleging unlawful retaliation under the Fair Housing Act. According to City Hall, the counterclaim made allegations beyond the scope of Chapter 61 of the code of civil procedure for limited actions, and the case was transferred to Chapter 60. See K.S.A. 61–2911(b). The trial court then bifurcated the eviction action from Rawlins–Roa's counterclaim. Our record on appeal is somewhat unclear about what happened with the eviction action at that point, but it does show that the eviction action was set for trial on August 2, 2011, and that on that date, the court was told by counsel that it had been settled. On August 4, 2011, the trial court filed a journal entry stating that the eviction action had been settled. On November 2, 2011, the trial court filed essentially the same journal entry. The text in the body of the new journal entry was identical to that in the August 4, 2011, journal entry, but the new journal entry had been signed later by a different judge. It stated that City Hall's eviction claim against Rawlins–Roa had been settled and that Rawlins–Roa had agreed to vacate the apartment:

“NOW on this 2nd day of August, 2011, [City Hall's] Petition is scheduled for trial, and [City Hall] and [Rawlins–Roa] have advised the Court that they have settled the issues in [City Hall's] Petition. Accordingly, the Court finds that a trial on [City Hall's] Petition is not necessary.

“[City Hall] and [Rawlins–Roa] advised the Court that [Rawlins–Roa] has agreed to vacate and return to [City Hall] possession of the premises at 805 N. 6th Street, Apartment 204, Kansas City, Wyandotte County, Kansas no later than November 2, 2011.

“Nothing herein shall affect the deadlines or other orders in this case, and [Rawlins–Roa] may proceed on her counterclaim.”

The parties' attorneys signed the journal entry, but Rawlins–Roa did not sign either journal entry.

Rawlins–Roa later agreed to voluntarily dismiss her counterclaim without prejudice. In a journal entry granting the voluntary dismissal, the trial court set out the following conditions for Rawlins–Roa to refile the action:

“1. All discovery conducted in this case ... in regards to the counterclaim will be valid in any re-filed action.

“2. [Rawlins–Roa] must answer [City Hall's] Opening Interrogatories, First Request for Admissions, and First Request for Production of Documents, and respond to the pending summary judgment motion, before re-filing the suit, and no further discovery will be allowed.

“3. [Rawlins–Roa] must submit an agreed to Pretrial Order at the time of re-filing this matter.”

Rawlins–Roa failed to vacate her apartment and was evicted by the sheriff on November 8, 2011.

In November 2013, Rawlins–Roa refiled her counterclaim—this time against City Hall, EPCO, and EPV City Hall—as a pro se petition. She claimed that her landlord had violated the Fair Housing Act. She alleged that her landlord had engaged in discriminatory housing practices and prevented her from completing the requirements necessary to live in her apartment—where she had resided for 6 years—in retaliation for a complaint she had filed with the Department of Housing and Urban Development.

The defendants moved to dismiss, arguing that the statute of limitations barred Rawlins–Roa's claims and that she had failed to comply with the trial court's conditions for refiling her claims. On April 16, 2014, the trial court conducted a hearing on the defendants' motion to dismiss. At the hearing, Rawlins–Roa orally argued through counsel that the trial court's journal entry filed November 2, 2011—which dismissed the eviction claim against her—was void because it did not say that the court was rendering a judgment for possession of the premises. The trial court determined that the November 2, 2011, journal entry was not void. The court determined that the journal entry was the same as a judgment for possession because it stated that Rawlins–Roa had agreed to vacate the premises no later than November 2, 2011. This was the same date referenced in the trial court's writ of restitution authorizing the sheriff to remove Rawlins–Roa from the apartment. The court also determined that the claims she raised in her petition were the same claims she had made in her earlier counterclaim. Moreover, the court determined that she had failed to meet the conditions for refiling those claims. Finally, the court determined that the statute of limitations had run on her discriminatory housing and retaliation claims. As a result, the trial court granted the defendants' motion to dismiss.

The Trial Court Properly Granted Defendants' Motion to Dismiss

On appeal, Rawlins–Roa argues that the November 2, 2011, journal entry stating that she and City Hall had settled the eviction claim was void. As stated previously, the court had filed the same journal entry—signed by a different judge—in August 2011. Since Rawlins–Roa's arguments on appeal are based on the November 2, 2011, journal entry, we will focus our discussion on that journal entry. Rawlins–Roa contends that the journal entry did not state that the court was entering a judgment for possession, that it did not provide notice that she was under threat of eviction, that it did not include her signature, and that it did not provide findings of fact or conclusions of law. She also claims that “[t]here never was [a settlement] agreement” between her and City Hall. Because Rawlins–Roa does not address her discriminatory housing and retaliation claims in her appeal brief, we consider those issues waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

As stated earlier, the November 2, 2011, journal entry dealt with the eviction action and did not resolve the Fair Housing Act counterclaim. A legal action for eviction is covered by K.S.A. 61–3801 to 61–3808. K.S.A. 61–3808(a) provides for a writ of restitution “[i]f a judgment is entered against the defendant for possession of the subject premises....” The court issued a writ based upon that agreed journal entry because it included a provision that possession would be given to City Hall. Rawlins–Roa did not appeal the eviction judgment, so we need not determine whether her time for appeal began to run on November 2, 2011, or on the date she agreed to dismiss her discriminatory housing and retaliation claims in 2012.

Rawlins–Roa refiled her counterclaim as a pro se plaintiff in November 2013. The defendants then moved to dismiss the petition, and Rawlins–Roa obtained counsel who argued that the November 2, 2011, journal entry was void at a hearing on the motion to dismiss.

We construe Rawlins–Roa's counsel's arguments at the hearing as an oral motion for relief from a final judgment under K.S.A.2014 Supp. 60–260(b), which provides that a court may relieve a party from a final judgment based on the following:

“(1) Mistake, inadvertence, surprise or excusable neglect;

“(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under subsection (b) of K.S.A. 60–259, and amendments thereto;

“(3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or misconduct by an opposing party;

“(4) the judgment is void;

“(5) the judgment has been satisfied, released or discharged; it is

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