Mainland Investment Group, LLC, d/b/a Texaco Food Mart, Appellee,
Tonya Smith a/k/a Tonya M. Smith, Defendant, and Diversicare of Sedgwick, Appellant.
SYLLABUS BY THE COURT
default judgment obtained pursuant to K.S.A. 61-3514 requires
that at the time the default judgment is entered, a valid
order of garnishment is in effect and the garnishee against
whom the default judgment is directed has not been released
pursuant to K.S.A. 2016 Supp. 61-3507(a).
from Lyon District Court; Douglas P. Jones, judge.
Jeffrey T. Donoho and Roger W. Slead, of Horn Aylward &
Bandy, LLC, of Kansas City, Missouri, for appellant.
Scott Hesse, of Newman, Hesse & Associates, P.A., of
Topeka, for appellee.
Arnold-Burger, C.J., Standridge and Schroeder, JJ.
Investment Group (Mainland) obtained a default judgment
against Tonya Smith. After failing to collect on its
judgment, Mainland obtained an order of garnishment. Mainland
then served this order on Smith's alleged employer,
Diversicare of Sedgwick (Diversicare)-the garnishee.
Diversicare failed to timely answer the order of garnishment,
and Mainland filed a motion for judgment against Diversicare
as provided under K.S.A. 61-3514. But before a final decision
was made on the motion, Mainland released Diversicare from
the order of garnishment. Despite this, the district court
imposed the penalties provided in K.S.A. 61-3514 for failing
to answer, including costs and attorney fees. Because we find
that the district court lacked jurisdiction to enter default
judgment and assess fees when the order of garnishment had
been released, we reverse and vacate the judgment against
and Procedural History
2005, Mainland filed a petition against Smith regarding a
worthless check in the amount of $51.13 that Smith wrote to
Texaco Food Mart in 2002. Smith did not respond to this
petition, and in 2006, Mainland obtained a default judgment
from the district court in the amount of $490.52.
nearly 10 years, Mainland failed to collect the judgment
amount from Smith and, apparently, could not locate her.
Finally, in late 2015, Mainland requested-and the district
court issued-an order of garnishment for the unpaid judgment
amount of $1, 159. Mainland served Smith's alleged
employer, Diversicare, with the garnishment order via first
class mail on December 16, 2015. Diversicare failed to answer
the order of garnishment, and, on May 25, 2016, Mainland
filed a motion for judgment against Diversicare for failure
to comply with K.S.A. 2015 Supp. 61-3510. Mainland served
Diversicare with notice of the motion hearing scheduled for
July 11, 2016.
filed a response to Mainland's motion for judgment
against garnishee and appeared at the hearing. In its
response, Diversicare asserted that it had never received the
order of garnishment and stated that Smith never worked for
the company. The district court continued the motion hearing
to August 15, 2016.
on August 1, 2016, Diversicare filed a motion to file an
out-of-time answer to the order of garnishment. In that
motion, Diversicare argued it had excusably neglected to
timely answer the order of garnishment and reiterated that it
never employed Smith.
August 8, 2016, Mainland filed a release of garnishment with
the district court in which it released Diversicare from the
order of garnishment. Importantly, the register of actions
for August 8, 2016, indicated the hearing scheduled for
August 15 was cancelled. Counsel for Diversicare sent a
letter to the district magistrate judge advising him of the
release of the garnishment and stating Diversicare's
position that all motions were moot. Diversicare also
indicated, apparently because of the release, that
Diversicare would not appear on August 15. A copy was sent to
counsel for Mainland. However, counsel for Mainland appeared
before the district court on August 15 and, citing
Diversicare's absence from the hearing, moved for a
default judgment against Diversicare. The district court
initially noted the case "wasn't on the docket"
but granted Mainland's motion for default judgment.
Curiously, the district magistrate judge ...