State of Kansas ex rel. Derek Schmidt, Attorney General, Appellant,
Ronald Nye, Joyce Nye, Terri Hurley, and Gary McAvoy, Individually and d/b/a Vintage Memorabilia, and Empraxis, LLC d/b/a Vintage Memorabilia, Appellees.
BY THE COURT
common law, a state is immune from suit unless it consents or
waives its immunity. Questions concerning sovereign immunity
are jurisdictional and can be raised at any time.
Litigation conduct may constitute a waiver of the doctrine of
defense of sovereign immunity is not available to the State
to shield it from liability for damages, including attorney
fees, incurred by Defendants in seeking dissolution of the
temporary injunction affirmatively sought and granted in its
favor pursuant to K.S.A. 60-905(b) but later vacated based on
a finding that it was wrongfully issued.
trial court's authority to award attorney fees is a
question of law over which an appellate court exercises
temporary injunction imposed pursuant to K.S.A. 60-905(b) is
valid, regardless of whether the trial court waives the bond
Damages and attorney fees incurred in defending against a
wrongfully issued temporary injunction order are recoverable
under K.S.A. 60-905(b), even in the absence of an injunction
review a trial court's authority to award fees for an
abuse of discretion. A party challenging the award must show
that no reasonable person would agree with the district
court's decision or that the decision was not supported
by substantial competent evidence.
award of attorney fees pursuant to K.S.A. 60-905(b) is
limited to those actually and proximately resulting from the
effect of the temporary injunction itself, as opposed to
litigation expenses independent of the temporary injunction.
eight factors set forth in Kansas Rule of Professional
Conduct 1.5(a) (2019 Kan. S.Ct. R. 300) for evaluating the
reasonableness of a fee award are set forth and discussed.
appellate court may award attorney fees for services on
appeal in a case in which the district court had authority to
award attorney fees.
from Shawnee District Court; Larry D. Hendricks, judge.
C. Clark, assistant solicitor general, Dwight R. Carswell,
assistant solicitor general, M.J. Willoughby, assistant
attorney general, and Derek Schmidt, attorney general, for
Vokins and Krystal Vokins, of Sloan, Eisenbarth, Glassman,
McEntire & Jarboe, LLC, of Lawrence, and O. Yale Lewis
Jr., pro hac vice, of Hendricks & Lewis, PLLC, of
Seattle, Washington, for appellees.
Standridge, P.J., Pierron and Green, JJ.
State appeals from the district court's order requiring
it to pay attorney fees incurred by Ronald Nye, Joyce Nye,
Terri Hurley, Gary McAvoy, and Vintage Memorabilia
(hereinafter Defendants) in resisting and obtaining the
dissolution of a preliminary injunction that was wrongfully
issued. Finding no error, we affirm.
September 27, 2012, the State filed an ex parte verified
petition asking the district court, among other things, to
temporarily restrain and then preliminary and permanently
enjoin Defendants from the sale, publication, replication,
and distribution of any and all Kansas Bureau of
Investigation file materials relating to the 1959 murder of
members of the Clutter family in Holcomb, Kansas. That same
day, the district court entered the ex parte temporary
restraining order as requested. An amended ex parte temporary
restraining order was filed on October 9, 2012.
December 17, 2012, the district court held an evidentiary
hearing on the State's request to convert the ex parte
temporary restraining order into a preliminary injunction. At
the end of the hearing, the court granted the parties'
joint request to submit legal arguments in support of their
respective positions. On April 23, 2013, the district court
granted the State's request and entered a preliminary
injunction but left open the possibility for Defendants to
request the court vacate it at a later date. Citing K.S.A.
60-905(b) as authority, the district court noted the State
would not be required to post a bond in conjunction with the
August 22, 2013, Defendants filed a motion to vacate the
preliminary injunction. After significant delay due to
discovery disputes, the State filed a motion for summary
judgment on January 29, 2014. Defendants supplemented their
motion to vacate on March 14, 2014, March 21, 2014, and June
6, 2014. The district court heard oral argument from the
parties with regard to all pending motions on June 26, 2014,
and took the matters under advisement. On November 7, 2014,
Defendants filed an urgent request for a ruling on their
motion to vacate. On November 26, 2014, the district court
granted Defendants' motion to vacate the preliminary
injunction, concluding that it should not have been granted
in the first place.
27, 2015, Defendants filed a motion to compel discovery that
the State previously had failed to produce. Following a
hearing, the district court granted that motion and ordered
the State to produce the requested documents no later than
July 7, 2015. Rather than produce the documents as ordered,
the State filed a motion to voluntarily dismiss the case.
Defendants indicated they did not object to voluntary
dismissal but noted that allowing the State to do so before
Defendants had an opportunity to present the court with
various motions related to the litigation (including but not
limited to their forthcoming motion for costs and attorney
fees pursuant to K.S.A. 60-905[b]) would be highly
prejudicial. Defendants subsequently filed a motion for costs
and attorney fees. After further briefing and a hearing, the
district court granted Defendants' motion for fees,
awarding them $152, 585 in attorney fees, but denied awarding
costs. The district court held that the amount of fees it
awarded all stemmed from the wrongfully issued preliminary
injunction that was requested by the State. The district
court also granted the State's motion to dismiss.
appeal, the State argues the district court erred in awarding
Defendants attorney fees. Specifically, the State claims (1)
it is protected from an award of attorney fees under K.S.A.
60-905(b) based on the doctrine of sovereign immunity, (2)
the district court failed to consider the
"injunction-bond" rule in making its decision to
award fees, and (3) the district court abused its discretion
in awarding fees. We address each of the State's claims
State argues it is entitled to sovereign immunity with
respect to the district court's award of damages and
attorney fees incurred by Defendants as the result of a
wrongfully issued preliminary injunction. For the reasons