Opinion
No. 108,695.
2013-11-15
Bob J. SETTLE, Appellant, v. TIME WARNER CABLE CAPITAL L.P., Appellee.
Appeal from Wyandotte District Court; David W. Boal and R. Wayne Lampson, Judges. Bob J. Settle, appellant pro se. David M. Buffo and John J. Cruciani, of Husch Blackwell LLP, of Kansas City, Missouri, for appellee.
Appeal from Wyandotte District Court; David W. Boal and R. Wayne Lampson, Judges.
Bob J. Settle, appellant pro se. David M. Buffo and John J. Cruciani, of Husch Blackwell LLP, of Kansas City, Missouri, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Bob J. Settle filed a breach of contract petition against Time Warner Cable Capital L.P. (TWCC). The district court ultimately granted summary judgment in favor of TWCC. Settle appeals from this judgment and from several other rulings issued by the court before and after judgment. For the reasons stated below, we affirm the denial of the motion for recusal and dismiss all other issues for lack of jurisdiction.
Facts
Before we set forth the relevant facts, we find it be helpful to separately identify each of the four different entities against whom Settle attempted to assert claims at various times during the proceedings before the district court: (1) TWCC, (2) KCCP Trust, d/b/a Time Warner Cable (KCCP), (3) Time Warner Cable (TWC) (a fictitious entity, not a legal entity), and (4) Time Warner Cable Information Services (Missouri), LLC (TWCIS).
On September 10, 2008, Settle filed a pro se petition for damages against TWCC alleging breach of contract, fraud, and extortion. Notwithstanding the fact that TWCC was the only defendant named in the petition, Settle thereafter directed service of the summons and the petition be made on KCCP.
On October 16, 2008, TWCC filed its answer to Settle's petition, in which TWCC stated it “did not enter into a contract with [Settle], has not provided any services to [Settle], and has not received any compensation from [Settle].” TWCC further asserted it was “not the proper party to this action” and, therefore, the petition against it should be dismissed.
On October 27, 2008, Settle filed a motion for leave to amend his petition to add additional defendants. Settle attached to his motion a proposed amended petition naming TWCC, TWC, and TWCIS as defendants. Settle served the motion on TWCC. On October 31, 2008, Settle filed a certificate of service with the court to verify the motion had been served on TWCC. On that same day, a summons to answer the amended petition was served on TWCC.
On February 13, 2009, the district court granted Settle's motion to amend his petition to add TWC and TWCIS as defendants. That same day, the court entered two journal entries of judgment. In the first journal entry, the district court found TWCIS had been served with a summons on October 31, 2008, had failed to file an answer or other responsive pleading, and had failed to appear before the court as ordered that day. Based on these findings, the court held TWCIS to be in default and entered a $50,000 judgment against TWCIS, the amount sought by Settle in his amended petition. The second journal entry made the same findings against TWC, with the exception that the district court found TWC was served with a summons on November 3, 2008.
On March 31, 2010, KCCP made a special entry of appearance in its capacity as KCCP, doing business as TWC, and filed a motion to set aside the default judgment against TWC. In this motion, KCCP argued a summons for the amended petition was never issued or served on TWC, which meant the court never had jurisdiction over TWC and the default judgment entered by the court necessarily was void.
On April 15, 2010, the district court granted KCCP's motion to set aside the default judgment against TWC. In a later hearing, the district court explained that the default judgment was granted in violation of Supreme Court Rule 118(d) (2009 Kan. Ct. R. Annot. 203), which required that notice be given to the party against whom relief is sought of the amount of money for which judgment will be taken at least 10 days before the date judgment is given. In another later hearing, the district court further explained that the default judgment was a nullity because Settle did not serve TWC; thus, the district court had no jurisdiction over TWC at the time default judgment was entered.
On April 20, 2010, Settle filed a motion to set aside the April 15 journal entry. In support of his motion, Settle argued the court did not have the authority to consider KCCP's motion to set aside the default judgment against TWC in the first instance because KCCP never made any application to intervene under K.S.A. 60–224 and because KCCP was not a party to the lawsuit.
On June 21, 2010, TWCC filed a motion for protective order to prohibit Settle from seeking discovery from nonparties KCCP and TWC. On June 28, 2010, TWCC filed a motion to dismiss or, in the alternative, a motion for summary judgment. In its motion, TWCC argued Settle had failed to state a claim against upon which relief could be granted because TWCC did not provide cable service to Settle. Settle never filed a response to this motion.
The court scheduled a hearing for July 9, 2010, to consider TWCC's motion for a protective order. At this hearing, the district court held that Settle and TWCC were the only parties to the lawsuit brought by Settle. The court advised Settle that, although KCCP may have been served with the original petition, “[m]erely serving a petition that does not name a party on some party, doesn't make them a party.” As to Settle's argument that TWC and TWCIS were served with notice of the amended petition when he filed his motion with the amended petition attached, the court specifically ruled that notice of a petition for damages through an attachment to a motion was “not good service.” In so ruling, the court appeared to find significant the fact that Settle never actually filed the amended petition after the court granted his motion to amend the petition to add additional parties. In light of these rulings, the district court held that the entities upon whom Settle was seeking discovery were not proper parties in the case. Accordingly, the court granted TWCC's motion for protective order to prohibit discovery from KCCP and TWC and noted that until those entities were served with the amended pleadings, they had no obligation to respond to discovery.
On July 15, 2010, the court held a hearing on Settle's motion to set aside the journal entry granting KCCP's motion to set aside the February 13, 2009, default judgment against TWC. The court ultimately denied Settle's motion on grounds that the February 13, 2009, judgment of default was void. Specifically, the court held Settle's failure to properly serve the amended petition on those defendants named in the proposed amended petition deprived the court of jurisdiction over those entities, which in turn rendered judgment against them void.
In a journal entry dated July 15, 2010, the district court denied Settle's motion for an order compelling discovery against TWCC. Specifically, the court ruled TWCC did not have to respond to Settle's discovery because TWCC was not the entity that provided Settle with his cable services.
The appearance docket for July 15, 2010, reflects TWCC was dismissed as a party defendant. The docket also stated KCCP was added as a party defendant, but noted that counsel was to advise “whether he will accept service for defendant and if not where plaintiff may serve defendant.” On August 2, 2010, TWCC filed a notice of permission to accept service. Settle objected to this notice, claiming TWCC was required to provide KCCP's registered agent's name instead.
On September 3, 2010, the district court issued a memorandum opinion granting TWCC's motion for summary judgment. The district court said it was treating TWCC's K.S.A. 60–212(b)(6) motion to dismiss as a motion for summary judgment pursuant to K.S.A. 60–212(b), which allowed the court to do so if matters outside the pleadings were presented in the motion. Because Settle did not file a response within 21 days, the district court deemed Settle to have admitted the uncontroverted contentions of fact under Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225). The court ultimately held Settle brought an action for breach of contract against an entity with whom he had no contractual relationship and his pleadings failed to satisfy the requirements of K.S.A. 60–209(b) that the averments must state the alleged circumstances constituting fraud with particularity. On September 14, 2010, the district court made an entry on the appearance docket noting that summary judgment had been granted in favor of TWCC, that Settle had never filed a pleading dismissing TWCC as a defendant, and that Settle had never filed an amended pleading adding KCCP as a defendant. This entry reflects the case was terminated and designated the status as “[d]isposed.”
After summary judgment was entered, Settle filed a motion requesting the court make additional findings of fact and conclusions of law. Settle also sent a letter directly to Judge David W. Boal, the judge assigned to the case, notifying the court that he personally witnessed an ex parte meeting on June 14, 2010, between Judge Boal and opposing counsel Josh Ellwanger and, as a result, was requesting that the judge recuse himself because of this appearance of impropriety. Settle asked that this letter be construed as a motion for recusal and that a hearing be held on the matter.
Although scheduled hearings on Settle's outstanding motions were continued several times over the next year, the matter was finally heard on November 21, 2011. On the day of the hearing, Settle filed supplemental pleadings to support his outstanding motions, to which he attached his own affidavit describing the alleged ex parte communication. Settle also filed a motion to strike all of TWCC's pleadings, again claiming both of TWCC's counsel failed to comply with the local entry of appearance rule. The district court denied this latter motion at the hearing.
On December 7, 2011, the court entered an order denying Settle's postjudgment motions. A week later, Settle filed a formal motion to recuse Judge Boal. Chief Judge R. Wayne Lampson denied the motion, holding that the file and Settle's affidavit and attachments “do not rise to a level which indicates that the decisions of Judge Boal failed to comply with the standard of evidence as required under the laws of the State of Kansas” on December 14, 2011. The chief judge also found no evidence to support a claim that Judge Boal displayed bias and/or prejudice toward Settle's position or that Judge Boal engaged in any ex parte communications with opposing counsel.
On December 22, 2011, Settle filed a motion for reconsideration of this decision. On January 13, 2012, Settle filed a motion for evidentiary hearing regarding the recusal of Judge Boal. At a January 19, 2012, hearing on the motion to reconsider, Chief Judge Lampson requested TWCC's counsel to obtain affidavits from Ellwanger, Judge Boal, and Judge Boal's assistant pursuant to K.S.A. 20–3111(d), which requires review of a motion for recusal be done via affidavits, not evidentiary hearing. On January 25, 2012, TWCC submitted Ellwanger's affidavit, in which he averred that at no time did he have an ex parte discussion with Judge Boal about the case. On January 31, 2012, Chief Judge Lampson issued a memorandum decision in which he again held the file and affidavits did not merit recusal; thus, Chief Judge Lampson denied Settle's request for reconsideration. He also issued a memorandum decision on February 28, 2012, denying Settle's request for an evidentiary hearing because the language of K.S.A. 20–311 required motions for recusal to be reviewed and determined on information as set out in affidavits.
Next, despite never filing an amended petition naming KCCP as a defendant, Settle filed a motion for default judgment against KCCP on April 30, 2012. At a May 24, 2012, hearing, the district court judge denied the motion, stating, “The entity against whom you seek a default judgment has never been named as a party in any pleading brought by the plaintiff against whomever in this case, and, therefore, default judgment against such a party is not appropriate, and that's the basis of my ruling.” On June 29, 2012, the district court filed a journal entry stating Settle's motion for default judgment against KCCP was denied “because KCCP Trust d/b/a Time Warner Cable was never made a party to this action.” The journal entry also stated that the “above captioned matter is concluded in all respects as to all parties to this action and all defendants to this action, including Time Warner Cable and Time Warner Cable Information Services (Missouri), LLC are dismissed.” Finally, the journal entry provided that the court would not consider any further postjudgment motions.
Meanwhile, on June 6, 2012, Settle had filed a motion challenging the January 31, 2012, memorandum decision on grounds that Judge Boal and his assistant failed to comply with the court's order to submit affidavits. Settle requested the court set aside the decision and order that they do so. On July 3, 2012, the district court issued a memorandum decision vacating that portion of its earlier order requiring Judge Boal and members of his staff to submit affidavits and denying Settle's request to set aside that earlier decision in order to compel production of those affidavits. Settle then filed a motion on July 17, 2012, to set aside this July 3, 2012, memorandum decision, arguing that Judge Boal's prior holdings rose to a level of bias and prejudice. After a hearing, the district court issued a memorandum decision on August 24, 2012, denying Settle's request to reconsider for reasons already stated in its previous rulings on the issue of Judge Boal's recusal. In that decision, the district court noted: “Just because [Settle] did not agree with the decisions of the trial judge does not rise to a level to disqualify that judge.”
Analysis
Settle raises the following issues on appeal: (1) The district court erred by setting aside the default judgment entered against TWC; (2) Judge Boal erred by failing to recuse himself and Chief Judge Lampson erred by failing to remove Judge Boal from the case, decisions which individually and collectively violated Settle's right to due process of the law; (3) the district court erred by failing to join KCCP as an indispensable party pursuant to K.S.A. 60–219(a)(2) and in doing so violated Settle's right to due process of the law; (4) the district court erred by ruling that TWCC had no obligation to respond to his discovery requests; and (5) the district court erred by failing to enforce the local rule requiring TWCC's counsel to enter an appearance by written notice and in doing so violated Settle's right to due process of the law.
Jurisdiction
Before we discuss the merits of the issues presented, we first must address TWCC's contention that this court does not have jurisdiction to address these issues in the first instance. In support of this contention, TWCC makes three arguments. First, TWCC argues Settle's notice of appeal failed to designate a valid judgment for the rulings from which he appeals and, even if he had designated a valid judgment, the legal issue presented and resolved by the court in that order of judgment is one separate and distinct from the various nonrecusal issues he raises on appeal. Second, TWCC argues Settle's notice of appeal is untimely. Third, TWCC argues Settle's notice of appeal raises issues that do not arise from a final decision.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011). The right to appeal is entirely statutory. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. See Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). If the record shows that the appellate court does not have jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
The date and substance of the ruling from which this appeal is taken
In support of its argument that Settle failed to designate the date of the judgment from which he appeals, TWCC asserts Settle's notice of appeal stated he was appealing from the district court's August 21, 2012, judgment and such a judgment does not exist. Under K.S.A.2012 Supp. 60–2103(b), the notice of appeal “shall designate the judgment or part thereof appealed from.” Where the notice fails to specify the judgment appealed from, the appeal should be dismissed. Gates v. Goodyear, 37 Kan.App.2d 623, 628, 155 P.3d 1196,rev. denied 284 Kan. 945 (2007). In this case, there is no question that the district court's last journal entry was file stamped August 24, 2012. But the handwritten date that appears at the end of the journal entry is a bit more difficult to discern as it could be read as either August 21, 2012, or August 24, 2012. Given the possibility that the handwritten date could be read as August 21, 2012, we find Settle's notice of appeal properly identified this journal entry as the judgment from which he was appealing.
The August 24, 2012, journal entry denied Settle's motion to set aside the district court's earlier decision regarding the recusal of Judge Boal and did not deal in any way with the district court's earlier orders setting aside default and prohibiting discovery or issues related to joining KCCP as an indispensable party and enforcing the local rule requiring TWCC's counsel to enter an appearance by written notice. Thus, the question next presented is whether Settle's notice of appeal confers appellate jurisdiction for those four issues he raises on appeal, none of which concern Judge Boal's recusal.
It is well established that an appellate court obtains jurisdiction only over the rulings identified in the notice of appeal. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). In general, a notice of appeal must specify the party taking the appeal, designate the judgment or part thereof appealed from, and name the appellate court to which the appeal is taken. K.S.A.2012 Supp. 60–2103(b); see Supreme Court Rule 2.02 (2012 Kan. Ct. R. Annot. 10).
We liberally construe K.S.A.2012 Supp. 60–2103(b) “to assure justice in every proceeding.” State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000). Accordingly, a notice of appeal “ ‘should not be overly technical or detailed. The notice of appeal is not a device to alert the parties to all possible arguments on appeal. That is the purpose and function of the docketing statements and briefs filed by the parties.’ “ 269 Kan. at 269 (quoting State v.. Boyd, 268 Kan. 600, 606, 999 P.2d 265 [2000] ). Thus, the use of broad, catchall language in a notice of appeal generally is sufficient to confer appellate jurisdiction over issues related to any of the district court's adverse rulings. See Gates, 37 Kan.App.2d at 627–28.
Conversely, the use of narrow language in a notice of appeal, such as designation of a district court ruling by specific date or description, is generally insufficient to confer appellate jurisdiction over other, unspecified district court rulings. See, e.g., State v. G.W.A., 258 Kan. 703, 707, 906 P.2d 657 (1995) (State's appeal from judgment of acquittal insufficient to confer jurisdiction over question reserved); Gates, 37 Kan.App.2d at 626–29 (notice of appeal citing two specific district court rulings insufficient to confer jurisdiction over issues not addressed in those rulings).
Nonetheless, a string of Kansas Supreme Court cases indicates a notice of appeal referencing a particular decision may be general enough to include other related matters. In Huff, the court found the district court's motion to dismiss and its decision to grant the defendants' suppression motions were “one and the same” so that the State's citation to the statute authorizing an appeal from the dismissals was sufficient to preserve its right to challenge the basis of the dismissal decisions, which included the suppression of certain evidence. 278 Kan. at 217–19. The court noted the State's statement in its notice of appeal that it was seeking review of the district court's “ ‘decision’ “ was general enough to include the basis of the dismissal and to put the defendants on notice that the suppression would be addressed. 278 Kan. at 219. Similarly, in State v. Garza, 295 Kan. 326, 330, 286 P.3d 554 (2012), the case was dismissed in the same hearing in which the evidence was suppressed, so the Kansas Supreme Court found that the suppression and the dismissal were “ ‘one and the same.’ “ It held that the State's notice of appeal stating that it was appealing “ ‘all issues from’ “ the suppression hearing was broad and general enough to put the defendant on notice that it was appealing the suppression ruling. 295 Kan. at 330.
In this case, Settle did not use broad catchall language in his notice of appeal but instead specifically indicated he was appealing from the August 21, 2012, journal entry, which we now know was the journal entry filed on August 24, 2012, and limited to the issue of Judge Boal's recusal. Notwithstanding the specific language limiting the scope of the issue presented to Judge Boal's recusal, Settle argues his notice of appeal confers appellate jurisdiction on this court for all of the issues he raises on appeal because the nonrecusal issues are so related to the recusal issue as to be “one and the same” with it. Specifically, Settle contends the district court's order setting aside default and prohibiting discovery, as well as its failure to join KCCP as an indispensable party and enforce the local rule requiring TWCC's counsel to enter an appearance by written notice, readily demonstrate Judge Boal was biased against him, which necessarily means those issues are so related to the recusal issue as to be “one and the same” with it. As we conclude below, however, there is no evidence that Judge Boal was biased, prejudiced, or antagonistic toward Settle. Accordingly, the orders setting aside default and prohibiting discovery, as well as the court's failure to join KCCP as an indispensable party and enforce a local rule, cannot be considered “one and the same” with Settle's claim that the district court erred in not removing Judge Boal from his case. Based on this conclusion, we do not have appellate jurisdiction to consider the nonrecusal issues raised by Settle on appeal. Therefore, these issues are dismissed for lack of jurisdiction.
A final decision
In addition to a lack of appellate jurisdiction based on Settle's failure to designate the rulings from which the issues presented on appeal were derived, we also lack appellate jurisdiction to review those particular issues because they do not arise from a final decision by the district court below.
Under the Kansas Code of Civil Procedure, an appeal may be taken to the court of appeals as a matter of right from a final decision in any action. K.S.A.2012 Supp. 60–2102(a)(4). A “ ‘final decision’ “ generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. In re T.S.W., 294 Kan. 423, 433, 276 P.3d 133 (2012). The Kansas Supreme Court has noted that the phrase “final decision” is “self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case.” 294 Kan. at 433. Moreover, it has construed the phrase “final decision” as a decision which finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court. 294 Kan. at 433.
The final judgment in this case was the district court's September 3, 2010, summary judgment order. On September 17, 2010, Settle filed a K.S.A. 60–252(b) motion seeking additional findings of fact and conclusions of law from the district court, which extended his time to file a notice of appeal from summary judgment. See K.S.A.2012 Supp. 60–2103(a). The district court entered an order denying all of Settle's posttrial motions on December 7, 2011; thus, the time for appeal commenced to run from that date. See K.S.A.2012 Supp. 60–2103(a). Although Settle had until January 6, 2012, to file a timely notice of appeal from summary judgment, he did not file his notice of appeal until August 29, 2012.
Turning to the first issue presented on appeal, Settle argues the district court erred by setting aside its February 13, 2009, default judgment against TWC. But a district court's decision to set aside a default judgment is interlocutory in nature and not a final order from which an appeal immediately may be taken. See Bates & Son Construction Co. v. Berry, 217 Kan. 322, 324–25, 537 P.2d 189 (1975).
In Settle's third issue on appeal, he argues the district court should have on its own motion considered joining KCCP as an indispensable party to the lawsuit pursuant to K.S.A. 60–219(a)(2). But Settle did not raise this issue to the district court below, and the district court never had an opportunity to rule on it. Issues not raised before the district court cannot be raised on appeal. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Although Settle frames this issue as one which deprives him of his right to due process of the law, even constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review unless the appellant provides this court with an exception to this general rule. See State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292 (2013). Settle does not claim that any exception applies here; therefore, we will not address this issue.
In Settle's fourth issue on appeal, he argues the district court abused its discretion by denying his motion for an order compelling discovery against TWCC. But subject to certain exceptions, none of which are applicable here, a discovery order is not a final order from which an appeal immediately may be taken. See Kansas Medical Mut. Ins. Co., 291 Kan. at 610–11 (“[T]he rule remains settled that most discovery rulings are not final.” [quoting 15B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3914 .23, p. 123 (2d ed.1992) ] ).
Settle's fifth issue does not arise out of a final judgment either. He claims the district court abused its discretion by suspending the local rule requiring counsel to enter an appearance by written notice. The district court ruled on this issue at the July 15, 2010, hearing, finding that TWCC's counsel entered their appearance by providing all the required information on their pleadings. This ruling was not a final decision because it neither addressed the merits of the case nor definitely terminated a right or liability in the action. It simply stated that TWCC's counsels' slight deviation from a local rule was not error.
In sum, the orders from which Settle is appealing in issues one, three, four, and five do not arise from a final decision by the district court below. Although these particular orders could have been challenged on appeal after final judgment had been entered, Settle's notice of appeal from final judgment here was filed out of time, which necessarily divests this court of appellate jurisdiction. Thus, these issues are dismissed for lack of jurisdiction.
Recusal
Settle filed a timely motion to appeal on the issue of recusal; thus, we have jurisdiction to consider whether Judge Boal's refusal to recuse from the case and Chief Judge Lampson's failure to remove Judge Boal from the case individually and collectively violated Settle's right to due process of the law.
Under K.S.A. 20–311d(a), if a party believes the judge to whom an action is assigned cannot afford that party a fair trial, the party may file a motion for change of judge. If the judge refuses to disqualify himself or herself, the party seeking a change of judge may file an affidavit alleging certain grounds. See K.S.A. 20–311d(a)–(b). The relevant ground to this appeal is set forth in K.S.A. 20–311d(c)(5):
“The party or the party's attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
If the affidavit is found to be legally sufficient, the case shall be assigned to another judge. K.S.A. 20–311d(b). In the affidavit, the recital of previous rulings or decisions by the judge on legal issues “shall not be deemed legally sufficient for any belief that bias or prejudice exists.” K.S.A. 20–311d(d); see also Hulme v. Woleslagel, 208 Kan. 385, 397, 493 P.2d 541 (1972) (“ ‘Previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him [or her] as judge.’ “ [quoting Sheldon v. Board of Education, 134 Kan. 135, Syl. ¶ 3, 4 P.2d 430 (1931) ] ).
In addition, under the Kansas Code of Judicial Conduct, a judge has a duty to disqualify himself or herself from a case “in which the judge's impartiality might reasonably be questioned.” Rule 601B, Canon 2, Rule 2.11(A) (2012 Kan. Ct. R. Annot. 729). A judge also “shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning spending or impending matter.” Rule 601B, Canon 2, Rule 2.9(A) (2012 Kan. Ct. R. Annot. 727).
In this case, Settle sent Judge Boal a letter stating that he personally witnessed an ex parte meeting on June 14, 2010, between the judge and opposing counsel Ellwanger. He requested the judge recuse himself because of the mere appearance of impropriety. Settle also said the letter was to be considered a motion for recusal and requested a hearing on the matter. On November 21, 2011, Settle filed a supplement to his pending motion for recusal, to which he attached his own affidavit on the alleged ex parte communication. At the hearing on his motion to recuse, Settle told Judge Boal that on June 14, 2010, he arrived for a hearing a half an hour early. At 3 minutes before the hearing time, he saw Ellwanger appear through the door in the courtroom marked “ ‘Judge's Chambers .’ “ He said that he had been in the hall prior to that, so that the time Ellwanger was in the judge's chambers was around 30 minutes.
On December 7, 2011, the district court entered an order denying Settle's postjudgment motions. It stated first that the form of the recusal request did not comply with K.S.A. 20–311d. It also said the basis of the recusal request was without merit because TWCC's counsel Ellwanger only met with the judge's administrative assistant outside of Settle's presence, not the judge. As evidence that there was no impropriety, the district court accurately observed that the transcript of that day's hearing showed Judge Boal referred to Ellwanger as “Mr. Cruciani,” TWCC's other attorney, because he did not know who he was prior to that moment.
The appearance docket shows that Settle then filed another motion to recuse Judge Boal on December 13, 2011. On December 14, 2011, Chief Judge Lampson held that the file and Settle's affidavit and attachments “do not rise to a level which indicates that the decisions of Judge Boal failed to comply with the standard of evidence as required under the laws of the State of Kansas.” Chief Judge Lampson also found that his review of the file did not convince him that Judge Boal displayed bias and/or prejudice toward Settle's position or that he engaged in any ex parte communications with opposing counsel. In so finding, Chief Judge Lampson noted the fact that EUwanger was at some point in the waiting room of the judge's chambers does not indicate that any ex parte communication occurred and further observed that “[t]he record notes that the Judge didn't even know the name of the attorney, a fact which goes against any such improper communication.” He thus denied Settle's motion to change judges.
On December 22, 2011, Settle filed a motion for reconsideration of this decision. At the hearing on the motion to reconsider on January 19, 2012, Chief Judge Lampson requested TWCC's counsel to get an affidavit from EUwanger as well as affidavits from Judge Boal and his assistant because K.S.A. 20–3111(d) required review of a motion for recusal be done via affidavits, not an evidentiary hearing. On January 25, 2012, TWCC submitted Ellwanger's affidavit in which he testified that on the day in question he arrived a few minutes early for a scheduled hearing and went into Judge Boal's administrative assistant's office to see if Settle had given TWCC copies of his most recent filings. He said he did not discuss any substantive case matters with Judge Boal's assistant and at no time had an ex parte discussion with Judge Boal about the case. On January 31, 2012, Chief Judge Lampson issued a memorandum decision in which he again held the file and affidavits did not rise to a level that indicated Judge Boal should be recused. Chief Judge Lampson denied Settle's request for reconsideration, noting that “pursuant to the statute, disagreement with the decisions of the trial court is not a valid basis for recusal.”
On June 6, 2012, Settle filed a motion for addition to the January 31, 2012, memorandum decision because Judge Boal and his assistant had not complied with the court's previous order to submit affidavits and requested the court order that they do so and set aside its decision. On July 3, 2012, the district court issued a memorandum decision denying Settle's request to compel the affidavits be submitted based on its review of the file and the affidavits of Settle and Ellwanger. It also rescinded any finding that affidavits of Judge Boal or members of his staff must be obtained. Settle then filed a motion to set aside this memorandum decision on July 17, 2012, arguing that Judge Boal's prior holdings rose to a level of bias and prejudice. After a hearing, the district court issued a memorandum decision on August 24, 2012, denying Settle's request to reconsider for the same reasons as in its previous rulings on the issue of Judge Boal's recusal. In that decision, the district court noted: “Just because the plaintiff did not agree with the decisions of the trial judge does not rise to a level to disqualify that judge.”
We find Settle's September 3, 2010, motion for recusal and the November 21, 2011, supplement to that motion and attached affidavit are not legally sufficient to give fair support for a well-grounded belief Settle could not obtain a fair trial. See State ex rel. Stovall v. Meneley, 271 Kan. 355, 385, 22 P.3d 124 (2001). In his original September 3 motion/letter to Judge Boal, Settle baldly stated, with no other facts, that he “personally witnessed on June 14th 2010 an ex-parte meeting between [Judge Boal] and opposing counsel Josh Ellwanger which lasted almost thirty minutes.” Similarly, his November 21, 2011, supplement only stated that “Plaintiff on June 14th 2010 personally witnessed an ex parte meeting of almost thirty (30) minutes between The Honorable Judge David W. Boal and Defendant[']s counsel Josh Ellwanger.” It too had no facts to substantiate this statement. Finally, Settle's affidavit only states: “I state under oath that on June 14th 2010 I personally witnessed an ex parte meeting between Judge David W. Boal and Defendant[']s counsel Joshua M. Ellwanger that lasted twenty five [or] more minutes.” Although the allegation that there was an ex parte meeting between the judge and opposing counsel, if true, would give fair support for a belief that Settle could not have a fair trial, that allegation was speculative in nature and not “grounded in facts that would create reasonable doubt concerning the court's impartiality ... in the mind of a reasonable person with knowledge of all the circumstances.” See Meneley, 271 Kan. at 385.
Even if this court were to also consider Settle's arguments at the hearing on his motion, the facts he alleged do not create reasonable doubt as to Judge Boal's ability to hear the case. Settle stated that he saw Ellwanger go into the judge's chambers and stay there for at least a half an hour before the hearing. He did not witness any actual communication between the judge and Ellwanger. As Chief Judge Lampson noted in his December 14, 2011, memorandum decision, the fact that Ellwanger was at some point in the waiting room of the judge's chambers does not indicate that any ex parte communication occurred. Moreover, as both Judge Boal and Chief Judge Lampson observed, Judge Boal called Ellwanger by TWCC's other attorney's name during the hearing following the alleged ex parte communication. In addition, Ellwanger testified in his affidavit that he only went into Judge Boal's administrative assistant's office to see if Settle had given TWCC copies of his most recent filings. He averred that he did not have an ex parte discussion with Judge Boal about the case.
Settle further asserts that the record demonstrates several instances of prejudice based on Judge Boal's rulings on various issues in the case. But K.S.A. 20–311d clearly provides that previous rulings or decisions by the judge are not legally sufficient for any belief that bias or prejudice exists. As Chief Judge Lampson twice noted, Settle's disagreement with Judge Boal's decisions was not a valid basis for recusal.
Based on this discussion, we find the district court did not err in denying Settle's motion for recusal of Judge Boal and refusing to assign a new judge to the case.
Affirmed in part and dismissed in part.