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Prime Lending Ii, LLC v. Trolley's Real Estate Holdings

April 26, 2013

PRIME LENDING II, LLC, APPELLEE,
v.
TROLLEY'S REAL ESTATE HOLDINGS, LLC, TROLLEY'S LLC, AND TROLLEY'S OVERLAND PARK, LLC, APPELLANTS, AND BLUE MOOSE, O.P., LLC, AND AARON BUERGE, APPELLEES.



Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. The legal effect of a trial court's previous judgment is a question of law over which this court's review is unlimited. 2. For a judgment to be effective under K.S.A. 2012 Supp. 60-254(b), the trial court must make express findings that the judgment is final and that there is no reason for delay. 3. An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss

the appeal. Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review. 4. An appellate court lacks jurisdiction under K.S.A. 2012 Supp. 60-254(b) unless the trial court has made the proper express determination required by K.S.A. 2012 Supp. 60-254(b).

The opinion of the court was delivered by: Green, J.

Appeal dismissed.

Before BRUNS, P.J., GREEN and BUSER, JJ.

This is a summary judgment case involving a foreclosure action by Prime Lending II, LLC. Prime Lending filed an action to foreclose its mortgage on certain real property owned by Trolley's Real Estate Holdings, LLC. Prime Lending also sued Aaron Buerge, Trolley's LLC, and Trolley's Overland Park, LLC (collectively Trolley's). Later, Prime Lending was granted permission to add Blue Moose, O.P., LLC, as a party defendant for the purpose of foreclosing Blue Moose's leasehold interest in the property.

Prime Lending moved for summary judgment, asking to foreclose on the property. The trial court granted Prime Lending's motion for summary judgment and ordered a sheriff's sale of the property. Prime Lending, based on its bid of $2,200,000, was the high bidder for the property. The trial court issued an order confirming the sheriff's sale. The trial court later issued an order certifying its previous August 24, 2011, memorandum decision of summary judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b) and denying Trolley's motion for leave to amend its answer.

Because we determine that the trial court abused its discretion when it retroactively certified its August 24, 2011, memorandum decision of summary judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b) and because the trial court has failed to make a proper determination required by K.S.A. 2012 Supp. 60-254(b), we dismiss this appeal as interlocutory.

Facts

On February 6, 2009, Prime Lending brought an action to foreclose its mortgage on real property located in Overland Park, Kansas. A little more than a month later, Prime Lending filed an application for appointment of receiver. The trial court then scheduled a hearing for Prime Lending's receiver motion for May 12, 2009. The defendants, Aaron Buerge; Trolley's Real Estate Holdings, LLC; Trolley's LLC; Trolley's Overland Park, LLC; Trolley's Bar and Grille, LLC; and Ryan G. MacDonald, filed responsive pleadings and counterclaims against Prime Lending.

Before the hearing on Prime Lending's application for appointment of receiver, the defendants filed for bankruptcy. Because of the bankruptcy filing, Prime Lending was prevented from pursuing its foreclosure action until the bankruptcy jurisdiction ended. On February 15, 2011, the defendants entered into an agreed order dismissing the bankruptcy proceedings of Trolley's Real Estate Holdings, LLC and Trolley's Overland Park, LLC.

The following month, Prime Lending moved for leave to amend its petition so that it could add Blue Moose as a party to the foreclosure action. Prime Lending sought to foreclose Blue Moose's leasehold interest in the property. The trial court granted Prime Lending's motion to add Blue Moose as a party defendant. On June 28, 2011, Prime Lending moved for summary judgment. Blue Moose filed a responsive pleading to Prime Lending's motion. On August 24, 2011, the trial court issued its memorandum decision granting Prime Lending's summary judgment motion. Approximately a week later, the trial court entered its journal entry of judgment of foreclosure.

On September 29, 2011, the trial court entered an order of sale, which directed the Johnson County sheriff to advertise and to do a judicial sale of the property. The property was sold to Prime Lending based on its high bid of $2,200,000. After the sale, Prime Lending moved to confirm the sheriff's sale. Although defendant Aaron Buerge filed an objection to Prime Lending's motion, he later withdrew his objection. None of the other defendants filed objections to Prime Lending's ...


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