Richardson v. Murray
115745
| Kan. Ct. App. | Aug 18, 2017Background
- In 2013 the Richardsons purchased a house from the Murrays and later sued for water intrusion and related claims (breach of contract, KCPA, fraud, negligent misrepresentation, etc.).
- The Murrays served an offer of judgment under K.S.A. 60-2002(b): $30,000 “with court costs accrued.” The Richardsons accepted and judgment was entered.
- After judgment, the Richardsons moved for attorney fees and expenses, arguing those were covered as (a) "court costs accrued," or alternatively (b) recoverable under the parties’ real estate contract and the Kansas Consumer Protection Act (KCPA). The district court awarded ordinary court costs but denied attorney fees.
- The Murrays paid the judgment and costs; the Richardsons did not file a satisfaction of judgment within 21 days after demand. The Murrays moved for statutory sanctions under K.S.A. 60-2803(b). The district court ordered the satisfaction, assessed a $100 statutory penalty and $594 in attorney fees against the Richardsons.
- On appeal the Kansas Court of Appeals affirmed denial of fees as "court costs," reversed the no-fees-on-contract/KCPA holding, remanded for fee determinations on contract and KCPA claims, and affirmed the sanctions for late satisfaction of judgment.
Issues
| Issue | Plaintiff's Argument (Richardsons) | Defendant's Argument (Murrays) | Held |
|---|---|---|---|
| 1. Whether "court costs accrued" in the offer of judgment includes attorney fees | "Costs" in the offer should include attorney fees under the KCPA and contract | "Costs" means traditional court fees; attorney fees are not costs absent statutory or contractual definition | Court: No — attorney fees are not part of "court costs accrued" here; offer was silent and Kansas cost statute does not include attorney fees generally |
| 2. Whether accepting the offer barred the Richardsons from seeking fees under KCPA or contract | Even if not "costs," acceptance should permit pursuing statutory or contractual fee claims as prevailing parties | Offer entry didn’t admit liability on merits; so no basis to award statutory or contract fees | Court: Offer did not clearly waive pursuit of separate fee claims; judgment by acceptance makes plaintiff the prevailing party and can recover fees under KCPA (discretionary) and under the contract (mandatory for defaulting party) |
| 3. Whether the district court erred in refusing all fee awards because the Murrays’ offer wasn’t an admission of liability | Acceptance and resulting judgment is effectively an admission/preclusive of defendant liability for purposes of fee statutes/contract | Offer of judgment is not an admission of liability on merits | Court: Acceptance/judgment is sufficient to treat defendant as defaulting/losing party for fee purposes; district court erred in refusing fees on that basis |
| 4. Whether sanctions for failure to file satisfaction of judgment were improper because filing would have constituted acquiescence and waived appeal rights | Filing satisfaction would be acquiescence and strip appellate rights, so delay was justified | Filing satisfaction does not strip appeal when payments/issues appealed are unaffected; statute requires timely filing after demand | Court: Richardson’s acquiescence argument was not preserved; even if preserved, precedent allows payment/filing without waiving appeal when appealed issues don’t affect those payments — sanctions affirmed |
Key Cases Cited
- Marek v. Chesny, 473 U.S. 1 (1985) (Rule 68 "costs" include attorney fees only if underlying statute defines fees as costs)
- Divine v. Groshong, 235 Kan. 127 (1984) (ordinary meaning of "costs" are court fees and charges)
- Legislative Coordinating Council v. Stanley, 264 Kan. 690 (1998) (attorney fees are not part of costs absent express statutory authority)
- Unruh v. Purina Mills, 289 Kan. 1185 (2009) (standard of review for fee-award authority and abuse of discretion principles)
- Webb v. James, 147 F.3d 617 (7th Cir. 1998) (offeror must specify whether fees are included; plaintiff who accepts Rule 68 judgment can be prevailing party for fee statutes)
- Utility Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238 (11th Cir. 2002) (Rule 68 places burden on offeror to be clear; acceptance exposes offeree to unique risks)
- Nusom v. Comh Woodburn, Inc., 122 F.3d 830 (9th Cir. 1997) (plaintiff accepting offer of judgment can recover statutory attorney fees where statute awards fees to prevailing party)
- Brown v. Combined Ins. Co. of America, 226 Kan. 223 (1979) (payment or acceptance of sums under judgment does not constitute acquiescence if issues on appeal do not affect those payments)