Date: 05-26-2022

Case Style:

SCOTT BROWN v. CASEY ZIMMERMAN

Case Number: 123,320

Judge:

Michael Buser

Before ARNOLD-BURGER, C.J., GREEN, and BUSER

Court:

COURT OF APPEALS OF THE STATE OF KANSAS

On appeal from The Ellis District Court

Plaintiff's Attorney: Heather R. Fletcher

Defendant's Attorney:

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Description:

Topeka, KS - Small Claims lawyer represented Appellant with appealing a small claims judgement.

Brown and his wife were looking for a cheap but reliable used car for their
daughter. They saw an advertisement by Double Z's Trailers, LLC in Hays for a 2002
Oldsmobile Intrigue. Zimmerman is the owner of the dealership. The advertisement said
the car had been driven only 135,000 miles and was "100% mechanically sound—no
engine light or any other warning lights of any kind. Ready to roll." The advertisement
also stated: "This is not a brand new vehicle, so do not waste my time. . . . If you are
expecting a brand new car with a bumper to bumper warranty look elsewhere please."
Brown contacted Zimmerman and arranged to look at the car. According to
Brown, Zimmerman told him he had purchased the Intrigue at an auto auction in Topeka
and that his wife had driven the vehicle from Topeka to Hays without any mechanical
problems. Zimmerman later denied making the statement and testified that the vehicle
had been "trailered" from Topeka to Hays. Brown took the car for a brief, unremarkable
test drive on Zimmerman's property. On that eventful day, July 9, 2019, Brown purchased
the Intrigue for $2,292.75, sales tax included.
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After leaving Zimmerman's business and driving the newly purchased vehicle 20
miles down the highway, the Intrigue's engine overheated. According to Brown, "we
ended up limping it off the road at Munjor Exit on I-70." When a telephone conversation
with Zimmerman was not especially productive in resolving the problem, Brown had the
vehicle towed 90 miles to his home in Gem, Kansas.
A later inspection by Brown under the hood revealed "the upper radiator hose that
goes to the thermostat housing was actually tied on with baling wire. And the engine was
full of stop leak." A mechanic inspected the car and informed Brown, "at minimum we
have a bad head gasket." Repair costs were estimated at between $2,000 and $3,000.
After filing a complaint with the Kansas Attorney General's Office to no avail,
Brown filed an action under the Small Claims Procedure Act (SCPA) in Ellis County
District Court. Brown complained: "I purchased a vehicle from Mr. Zimmerman under
false pretenses. Statements made by the seller were found to be contrary to fact, and the
vehicle is not operational without substantial repair. I am seeking a refund of my
expenses with this fraudulent transaction."
Trial was held on March 9, 2020, before District Magistrate Judge Brendon
Boone, who is not regularly admitted to practice law in Kansas. Brown and Zimmerman
appeared pro se. Judge Boone informed the parties at the beginning of trial, "Small
claims is a little bit like what you see on TV, but without all the drama." Both men were
sworn, testified regarding the dispute, and presented 41 pages of documents, papers, text
messages, and photographs in support of their legal positions. The trial proceedings were
memorialized in a 17-page transcript.
At the conclusion of trial, Judge Boone ruled, "I think, Mr. Zimmerman, you did
misrepresent the vehicle, just the aspect of it being a hundred percent mechanical." The
Judge also noted that in Zimmerman's "text messages to Mr. Brown, you state you did
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drive it from Topeka, it didn't heat up." Yet, Zimmerman had testified the vehicle was
trailered from Topeka to Hays. Judgment was entered in favor of Brown. Zimmerman
was ordered to pay Brown $2,375.25 and interest. Possession of the Intrigue was awarded
to Zimmerman.
Zimmerman, now represented by an attorney, filed a timely notice of appeal in the
Ellis County District Court, "pursuant to K.S.A. 61-2709(A)" requesting a trial de novo
before a district judge. Five months later, District Judge Blake A. Bittel filed a journal
entry of appeal that stated: "After review of the record pursuant to K.S.A. 20-302b(c)(2)
[j]udgment . . . is hereby Affirmed."
Zimmerman filed a motion to reconsider, arguing his appeal should have been
heard de novo because, unlike K.S.A. 20-302b(c)(2) which applies generally to decisions
of district magistrate judges, K.S.A. 2020 Supp. 61-2709(a) specifically applies to
appeals from small claims judgments and provides for a trial de novo. Zimmerman
argued that "[t]he more specific statute should control, and the appeal should be heard de
novo." Brown opposed the motion and the district judge denied the motion to reconsider.
Zimmerman filed a timely notice of appeal of Judge Bittel's affirmance of the
small claims judgment, and the denial of Zimmerman's motion to reconsider.
DID THE DISTRICT COURT ERR IN AFFIRMING THE SMALL
CLAIMS JUDGMENT WITHOUT CONDUCTING A TRIAL DE NOVO?
On appeal, Zimmerman contends the district court erred in denying his appeal by
only reviewing the record because K.S.A. 2020 Supp. 61-2709(a) requires that appeals
under the SCPA "shall be tried and determined de novo before a district judge." Brown
counters that the district court properly applied K.S.A. 2020 Supp. 20-302b(c)(2)(A)
which provides that an appeal of an order or final decision by a district magistrate judge
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who is not regularly admitted to the practice of law shall be determined on the record if
one was made.
Zimmerman's appeal requires statutory interpretation, which is an issue of law
subject to unlimited review. Nauhiem v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647
(2019). In particular, this appeal necessitates the interpretation of two Kansas statutes,
K.S.A. 2020 Supp. 61-2709(a) and K.S.A. 2020 Supp. 20-302b(c)(2).
K.S.A. 2020 Supp. 61-2709(a) states, in relevant part: "An appeal may be taken
from any judgment under the small claims procedure act. . . . All appeals shall be tried
and determined de novo before a district judge, other than the judge from which the
appeal is taken." (Emphasis added.)
On the other hand, K.S.A. 2020 Supp. 20-302b(c)(2) states in relevant part:
"(2) In accordance with the limitations and procedures prescribed by law, and
subject to any rules of the supreme court relating thereto, any appeal permitted to be
taken from an order or final decision of a district magistrate judge: (A) Who is not
regularly admitted to practice law in Kansas shall be tried and determined de novo by a
district judge, except that in civil cases where a record was made of the action or
proceeding before the district magistrate judge, the appeal shall be tried and determined
on the record by a district judge." (Emphasis added.)
Zimmerman contends that K.S.A. 2020 Supp. 61-2709(a) takes precedence over
K.S.A. 2020 Supp. 20-302b(c)(2)(A) because it is specific to judgments under the SCPA,
compared to K.S.A. 2020 Supp. 20-302b(c)(2), which relates to appeals from orders or
final decisions of district magistrate judges generally. Zimmerman also points out that the
prefatory language "[i]n accordance with the limitations and procedures prescribed by
law" provided in K.S.A. 2020 Supp. 20-302b(c)(2) necessarily gives precedence to the
appeals procedure for small claims cases set forth in K.S.A. 2020 Supp. 61-2709(a).
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For his part, Brown argues that the district court properly applied K.S.A. 2020
Supp. 20-302b. Brown acknowledges Zimmerman's claim that as an overall rule, specific
statutes ordinarily control over general statutes. But Brown argues that K.S.A. 2020
Supp. 20-302b is the more specific statute because "it includes details as to what happens
if there is a record; what happens if there is not a record; what happens if the District
Magistrate Judge is law trained, and what happens if the District Magistrate is not law
trained. K.S.A. 20-203b(c)(2) is the more specific statute." Brown also asserts that
allowing for a trial de novo of all small claims judgments would lead to "'unreasonable
results,'" particularly when the district magistrate judge practices law.
We begin the analysis with the most fundamental rule of statutory construction—
the intent of the Legislature governs if it can be ascertained. State ex rel Schmidt v. City
of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). In this regard, an appellate court
must first attempt to determine legislative intent through the statutory language enacted,
giving common words their ordinary meanings. Nauheim, 309 Kan. at 149. Where there
is no ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history to construe the Legislature's intent. 309 Kan. at 150.
The plain language of K.S.A. 2020 Supp. 61-2709(a) supports Zimmerman's
argument. Of specific relevance to this appeal, the statute applies to "[a]n appeal . . . from
any judgment under the small claims procedure act." K.S.A. 2020 Supp. 61-2709(a). In
this regard, the statutory language is plain, clear, and all-encompassing with regard to
small claims cases. It states that all SCPA appeals—without exception—shall be tried de
novo to the district judge. Importantly, the application of K.S.A. 2020 Supp. 61-2709(a)
is not limited to whether or not there is a record, or whether or not the district magistrate
judge is regularly admitted to practice law in Kansas, or even whether a district
magistrate judge decided the small claims case. The plain language of K.S.A. 2020 Supp.
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61-2709(a) requires that under the circumstances presented in this appeal, the district
court was required to conduct a trial de novo to determine the appeal.
On the other hand, the plain language of K.S.A. 2020 Supp. 20-302b(c)(2)(A)
supports Brown's argument. As in this appeal, the statute applies to "any appeal permitted
to be taken from an order or final decision of a district magistrate judge." K.S.A. 2020
Supp. 20-302b(c)(2). Since the parties agree that Judge Boone was not regularly admitted
to practice law in Kansas, the statute provides that "in civil cases where a record was
made of the action or proceeding before the district magistrate judge, the appeal shall be
tried and determined on the record by a district judge." K.S.A. 2020 Supp. 20-
302b(c)(2)(A). As detailed in the factual and procedural background, this is the situation
the district court encountered on appeal, and this is the statute the district judge relied on
in affirming the appeal based only on his review of the record.
It is apparent that a plain reading of the two statutes does not resolve the question
of whether, under the circumstances of this case, the district court was required to
consider and determine Zimmerman's small claims appeal by a trial de novo or on the
record. Employing a well-known rule of statutory construction, however, provides
helpful guidance: "'[T]he more specific statute governs when two statutes are in conflict.
"A specific statute controls over a general statute."'" In re Equalization Appeal of Target
Corp., 311 Kan. 772, 781, 466 P.3d 1189 (2020) (quoting In re Tax Exemption
Application of Mental Health Ass'n of Heartland, 289 Kan. 1209, 1215, 221 P.3d 580
[2009]).
But which is the more specific statute? K.S.A. 2020 Supp. 61-2709(a) is found in
the SCPA, which is located in Chapter 61, the Code of Civil Procedure for Limited
Actions. The SCPA provides the all-inclusive, comprehensive procedure to be employed
in litigating small claims actions in Kansas. Moreover, if the SCPA does not provide for a
specific procedure, the Code of Civil Procedure for Limited Actions applies. See K.S.A.
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61-2702. In essence, K.S.A. 2020 Supp. 61-2709(a) relates specifically to appeals from
SCPA judgments and mandates that "[a]ll appeals shall be tried and determined de novo
before a district judge, other than the judge from which the appeal is taken."
Brown counters that K.S.A. 2020 Supp. 20-302b(c)(2) is more specific because it
provides for detailed appellate procedures only relating to district magistrate judges—
even setting forth separate procedures in circumstances where a magistrate judge is or is
not regularly admitted to practice law, when there is or is not a record of the proceeding
from the magistrate judge's order or final decision, and when the proceeding is civil or
otherwise.
We are persuaded that K.S.A. 2020 Supp. 61-2709(a) is the more specific and,
therefore, controlling statute under the circumstances presented in this appeal. K.S.A.
2020 Supp. 61-2709(a) applies explicitly to appeals from SCPA judgments granted by
district magistrate judges or district judges. It is part and parcel of a self-contained
procedural act expressly and solely pertaining to small claims litigation in Kansas courts.
Because it is more specific, K.S.A. 2020 Supp. 61-2709(a) should take precedence over
the general provisions of K.S.A. 2020 Supp. 20-302b(c)(2) when determining the
appellate process to be used in SCPA cases.
Moreover, while K.S.A. 2020 Supp. 20-302b(c)(2) applies generally to appeals of
orders and final decisions by district magistrate judges, its provisions do not relate
exclusively to SCPA judgments. K.S.A. 2020 Supp. 20-302b(a) provides district
magistrate judges with jurisdiction over a myriad of subject matters—other than SCPA
cases—including conducting trials of misdemeanor offenses, felony preliminary hearings
and arraignments, uncontested divorce actions, limited actions, and other civil cases, to
name just a few subject areas. The extent and breadth of jurisdiction afforded to district
magistrate judges under K.S.A. 2020 Supp. 20-302b(a) necessitates appeal provisions
with general application as found in K.S.A. 2020 Supp. 20-302b(c)(2). These appeal
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provisions are more wide-ranging than the explicit appeal provisions found in K.S.A.
2020 Supp. 61-2709(a) which only relate to appeals of SCPA judgments.
There is another reason for our determination that K.S.A. 2020 Supp. 61-2709(a)
should control the appellate process in SCPA cases wherein a district magistrate judge
who is not regularly admitted to practice law in Kansas enters a judgment on the record.
The general appellate provisions of K.S.A. 2020 Supp. 20-302b(c)(2) are prefaced by the
prepositional phrase, "[i]n accordance with the limitations and procedures prescribed by
law, and subject to any rules of the supreme court relating thereto." This prefatory phrase
suggests that, as in this case, where other Kansas statutes dictate limitations or procedures
relating to particular appeals, the general appellate procedures of K.S.A. 2020 Supp. 20-
302b(c)(2) should be in accord or conforming with those limitations or procedures.
We find support for our understanding of the meaning of this prepositional phrase
in a criminal case, State v. Kleen, 257 Kan. 911, 896 P.2d 376 (1995). In Kleen, our
Supreme Court considered whether the State was entitled to a de novo preliminary
hearing before a district judge upon appeal from a dismissal of charges by a district
magistrate judge at the preliminary hearing. The State appealed the dismissal to a district
judge who reviewed the record of the preliminary hearing and upheld the dismissal. On
appeal to the Kansas Supreme Court, the State contended it was entitled to a de novo
appeal hearing before the district judge.
In relevant part, the State argued that K.S.A. 1994 Supp. 20-302b(c) provided for a
trial de novo of any decision of a district magistrate judge in a criminal case, including
whether there was probable cause to bind a defendant over for trial. The Supreme Court
disagreed. It concluded that a specific statute, K.S.A. 1994 Supp. 22-3602(b) and (c),
took precedence over the general provisions of K.S.A. 1994 Supp. 20-302b(c). Our
Supreme Court held:
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"K.S.A. 1994 Supp. 20-302b(c) provides for a de novo appeal before a district judge 'in
accordance with the limitations and procedures prescribed by law.' (Emphasis added.)
The limitations and procedures prescribed by K.S.A. 1994 Supp. 22-3602(b) and (c)
provide that the State has the right to appeal from a district magistrate judge's order
dismissing a criminal complaint to a district judge on the record in the same manner as
the State may appeal as a matter of right to this court from a dismissal of a criminal
complaint by a district judge.
"We hold that when a district magistrate judge dismisses a criminal complaint or
indictment for lack of probable cause after a preliminary hearing, the State is not entitled
to a de novo preliminary hearing before the district judge but is entitled to appeal as a
matter of right on the record under the provisions of K.S.A. 1994 Supp. 22-3602(c)." 257
Kan. at 914.
Kleen provides valuable guidance that the qualifying language "[i]n accordance
with the limitations and procedures prescribed by law" that preface the general appellate
provisions of K.S.A. 2020 Supp. 20-302b(c)(2) makes clear the Legislature's intent that
specific appellate procedures set forth in Kansas statutes control and take precedence
over the general provisions found in K.S.A. 2020 Supp. 20-302b(c)(2).
Our holding in this appeal is also bolstered by In re K.J., 242 Kan. 418, 748 P.2d
419 (1988). In this termination of parental rights case filed under the Code for Care of
Children, K.S.A. 38-1501 et seq., the district magistrate judge found the parents of two
children unfit and terminated their parental rights. The parents appealed to the district
court which affirmed the termination based on a review of the record of the termination
hearing. The parents then appealed to the Kansas Court of Appeals. See In re K.J., 12
Kan. App. 2d 188, 737 P.2d 874 (1987).
On appeal to our court, the parents contended their appeal of the district
magistrate's termination order was controlled by K.S.A. 38-1591(b) of the Code for Care
of Children, which provided: "An appeal from an order entered by a district magistrate
judge shall be to a district judge. The appeal shall be heard de novo within 30 days from
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the date the notice of appeal is filed." 12 Kan. App. 2d at 188. The parents asserted that
the district court erred in ruling on the case on the record of the proceedings before the
district magistrate judge. On the other hand, the State argued that K.S.A. 1986 Supp. 20-
302b controlled and, as a result, the district judge's ruling on the record rather than a de
novo trial was proper.
In our court's opinion, we framed the issue this way: "The State contends that 20-
302b defines the nature of the appeal procedure to be followed by the district judge
hearing an appeal pursuant to K.S.A. 38-1591(b). The parents argue that K.S.A. 38-
1591(b) and its designation of a de novo appeal is solely controlling." 12 Kan. App. 2d at
189.
We held for the parents, reasoning:
"When there is a conflict between a statute dealing generally with a subject and
another statute dealing specifically with a certain phase of it, the specific statute controls
unless it appears that the legislature intended to make the general act controlling. While
20-302b(c) deals generally with the manner in which appeals from the decisions of
district magistrate judges are to be considered, K.S.A. 38-1591 is a specific provision
describing the procedure to be followed in an appeal from a magistrate's order in a
juvenile proceeding. . . .
". . . Since K.S.A. 38-1591 is the more specifically applicable statute and it
requires that the appeal shall be de novo without reference to 20-302b, we conclude that
the appeal should have been de novo as that term has been commonly and historically
used.
". . . The district court's resolution of this case on the record developed before the
district magistrate judge was prejudicial error. [Citations omitted.]" 12 Kan. App. 2d at
189-90.
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Our Supreme Court granted the petition for review and affirmed our holding:
"The Court of Appeals correctly held that, in an appeal from the decision of a
district magistrate judge in a proceeding filed pursuant to the Code for Care of Children,
K.S.A. 38-1501 et seq., the district judge must hear the case as if it were originally filed
for trial before the district judge. For the reasons stated by the Court of Appeals in its
opinion, we conclude that the trial court's determination of this case based on the record
of the trial before the district magistrate judge was prejudicial error." 242 Kan. at 419.
Albeit in different contexts, Kleen and In re K.J. provide valuable precedent for
resolving this appeal. K.S.A. 2020 Supp. 61-2709(a), relating to appeals from SCPA
judgments, is the more specific statute which is part of a self-contained procedural act
explicitly pertaining to small claims litigation in Kansas courts. As a result, the general
appellate procedures for district magistrate judges under K.S.A. 2020 Supp. 20-
302b(c)(2)(A) must be in accord or conforming with the limitations or procedures of
K.S.A. 2020 Supp. 61-2709(a). In other words, under the circumstances presented in this
litigation, Zimmerman's appeal should be "tried and determined de novo before a district
judge." K.S.A. 2020 Supp. 61-2709(a).
For the sake of clarity, we pause to explain the meaning of de novo review in the
context of K.S.A. 2020 Supp. 61-2709(a). In State v. Wright, 26 Kan. App. 2d 879, 880,
995 P.2d 416 (2000), our court explained the process of de novo review of a magistrate
judge's decision:
"When a statute provides for review of a magistrate judge's decision de novo by a
district judge, the matter is to be tried before the district judge as if no trial had initially
been had before the magistrate. This is the very definition of de novo trial, as Black's
Law Dictionary attests: 'Trying a matter anew; the same as if it had not been heard before
and as if no decision had been previously rendered.'"
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Because Zimmerman was statutorily entitled to an appeal de novo of the adverse
judgment entered by the district magistrate judge, we hold the district court erred by
affirming the judgment upon a review of the record. The case is reversed and remanded
to the district court with directions to conduct a trial de novo.
ISSUES RAISED BY BROWN ON APPEAL
In his appellee's brief, Brown raises three issues for the first time on appeal. First,
he argues that since he was the successful appellee on review by the district court, he is
entitled to reasonable attorney fees. But Brown never asked for attorney fees in the
district court and the district court made no ruling on the issue. Issues not raised before
the district court may not be raised on appeal. Gannon v. State, 303 Kan. 682, 733, 368
P.3d 1024 (2016).
Second, Brown asserts that if the case is remanded to the district court for a trial
de novo, he should be allowed to present the issue of storage fees since he claims that
Zimmerman has not retrieved the car and it is being stored at considerable expense. This
issue also was not raised in the district court. As a result, we have no ruling or decision to
review. See 303 Kan. at 733. Moreover, as a general rule, Kansas appellate courts do not
render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
We decline to review this issue.
Finally, Brown argues that Zimmerman has waived and abandoned any arguments
regarding the merits of the adverse judgment entered against him because he did not brief
the merits on appeal. But Zimmerman appealed the validity of the adverse judgment due
to a violation of his statutory right to have the appeal tried de novo by the district court.
As we have held, the judgment is reversed. Given our holding, the merits of the claim
have not been decided. The merits will be ruled upon on remand at the trial de novo.

Outcome: Reversed and remanded with directions for the district court to conduct a trial de
novo

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