Brown v. Vannoster

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NOT DESIGNATED FOR PUBLICATION

No. 120,376


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARY ANNA BROWN,
Appellant,

v.

JIM W. VANNOSTER, TAMMIE K. VANNOSTER,
and Estate of TERRY V. BROWN, by TAMMIE VANNOSTER,
Executor Named in Last Will and Testament of TERRY V. BROWN,
Appellees.


MEMORANDUM OPINION

Appeal from Montgomery District Court; JEFFREY GETTLER, judge. Opinion filed October 25,
2019. Affirmed.

W. J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellant.

Danielle D. Cornejo, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for
appellees.

Before ATCHESON, P.J., MALONE, J., and DANIEL D. CREITZ, District Judge, assigned.

PER CURIAM: Terry V. Brown and his wife Mary sold land to Tammie and Jim
Vannoster, his daughter from a previous marriage and her husband, on contract calling
for a down payment and annual installments for seven years. Terry died before the
Vannosters paid all of the installments. Mary filed this action in the Montgomery County
District Court to determine if she was legally entitled to the remaining payments because
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she had been identified in the contract as a seller, along with Terry, even though she had
no ownership interest in the property.

After Mary filed a motion for summary judgment seeking a judicial declaration in
her favor, the lawyers for the parties advised the district court that the documents and
other materials already in the record composed the universe of relevant evidence, and
they requested a ruling on the merits without further proceedings. The district court
entered a 10-page memorandum and order denying Mary's summary judgment motion
and dismissing the action with prejudice, effectively ruling against her on the merits.
Mary has appealed.

We find that the district court, at the parties' invitation, conducted a bench trial on
the evidentiary record and some undisputed background facts in ruling against Mary. As
we explain, the evidence and the law support the district court's judgment. We, therefore,
affirm the ruling denying relief to Mary and the judgment dismissing this case.

FACTUAL AND LEGAL POSTURE OF APPEAL

We begin with a condensed account of the background facts, since the parties are
familiar with the details and much of that detail has no direct bearing on the legal issue at
hand. Terry and Mary married in 2011. They had a prenuptial agreement under which
Terry retained sole ownership of identified tracts of land, including the property
eventually sold to the Vannosters. Terry later deeded some of the tracts to himself and
Mary, typically as joint tenants with a right of survivorship, thereby giving her an
ownership interest in those parcels.

In August 2014, Terry and Mary entered into the land contract selling the
Vannosters approximately 66 acres in Montgomery County. The land surrounded a
smaller tract that Terry and Mary owned as their homestead. At the same time as the land
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sale, Terry deeded 12 acres, including the homestead, to himself and Mary, as joint
tenants.

The land contract required a down payment of about $15,000 from the Vannosters
to be followed by seven annual payments of about $11,900 each. The contract identifies
Terry and Mary as "seller," the term then used throughout the contract. The Vannosters
are correspondingly identified as "buyer." The five-page contract outlines various
reciprocating rights and duties of buyer and seller. The contract states that it binds "the
successors and assigns of the parties." But it is silent about how the annual payments
were to be made if Terry (or Mary, for that matter) died during the seven-year term.

As part of the transaction, Terry and Mary signed a general warranty deed
transferring the land to the Vannosters, and the Vannosters signed a quitclaim deed to
Terry and Mary. Both deeds were placed with an escrow agent. If the Vannosters fully
performed under the contract, they would receive the warranty deed. If they materially
breached, the quitclaim deed would be given to Terry and Mary for filing.

When the case was presented to the district court for resolution, everybody agreed
that Mary had no ownership interest in the 66-acre tract immediately before the sale to
the Vannosters. They also agreed the Vannosters made the annual installment payments
before Terry died in late 2016. They have since paid the installments into court awaiting
the resolution of this legal dispute. The Vannosters delivered a check payable to Terry for
the 2016 installment, and he deposited the check in a bank account he jointly owned with
Mary.

As we have indicated, Mary filed a motion for summary judgment requesting a
declaration that the installment payments due after Terry's death should be paid to her
because the land contract implicitly created a joint tenancy with a right of survivorship by
identifying her as a seller. Alternatively, she suggested the contract created a tenancy in
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common so half of each installment would go to her and half to Terry's estate. The
Vannosters basically countered that Mary had no ownership in the land and nothing in the
contract changed that. They argued she had been included as a seller simply to extinguish
any inchoate rights she might have in the land as a surviving spouse.

The district court ruled against Mary in March 2018 and dismissed the case, some
10 months after it had been filed. Mary filed a motion to reconsider, prompting a
response from the Vannosters and several supplemental submissions to the district court.
The district court filed a four-page memorandum in November 2018 denying Mary's
motion to reconsider. In that memorandum, the district court pointed out that "[b]oth
Plaintiff and Defendants stipulated and agreed that neither party intend[ed] any further
discovery and the issues in this case are issues of law based on the written documents,
and there are no issues of fact."

The record on appeal consists of the papers the parties filed in the district court
with the accompanying exhibits and the district court's rulings, including those denying
Mary relief and rejecting her request for reconsideration. There were no evidentiary
hearings, and the parties have included no transcripts from any proceedings in the district
court.

The district court's memorandum and order dismissing the case lacks a precise
description of the procedural progression leading to that decision. The remainder of the
record inferentially offers guidance to us on what the parties wanted and what the district
court provided in its final ruling. In opposition to Mary's motion for summary judgment,
the Vannosters filed a response asking the district court to deny her relief. Although they
did not file a cross-motion for summary judgment, they did ask the district court to
dismiss the case in the concluding sentence of their response.

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The district court did not indicate it treated those filings as cross-motions for
summary judgment. In that situation, a district court must look at each motion
independently and give the nonmoving party the benefit of both any material factual
disputes and any inferences reasonably drawn from the facts. So the proper course would
be to deny both motions in favor of a trial if there were disputed facts precluding
judgment on each motion. See Stormont-Vail Health Care, Inc. v. Board of Shawnee
County Comm'rs, No. 112,811, 2016 WL 2772859, at *3, 5-6 (Kan. App. 2016)
(unpublished opinion) (outlining procedure for deciding cross-motions for summary
judgment). In short, cross-motions do not afford the district court a license to decide a
case on summary judgment.

But, as the district court explained in its ruling on Mary's motion to reconsider, the
parties had agreed all of the relevant evidence—consisting of documents and stipulated or
undisputed facts—had been submitted for consideration and the parties wanted a final
ruling based on that evidence. In effect, the parties asked the district court to sit as a fact-
finder in a bench trial on that evidentiary record if Mary were not entitled to summary
judgment. Cf. 2016 WL 2772859, at *5 (absent agreement of parties, district court could
not consider summary judgment record as complete body of evidence and enter judgment
as fact-finder in bench trial on that record). In a bench trial, a district court can, of course,
draw reasonable inferences for or against either party as the evidence permits. We review
the case in that light on appeal.

LEGAL ANALYSIS

On appeal, Mary reprises arguments she presented to the district court. She
contends her inclusion as a "seller" in the land contract either gives her an ownership
interest in the land as a matter of law or establishes that Terry otherwise intended she
have an ownership interest in the land or the sale proceeds. The district court rejected
those arguments. As we explain, we see no error.
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Mary cites K.S.A. 58-501 to support her claim. That statute provides that "a grant
or devise to a husband and wife" of real or personal property creates a tenancy in
common unless the language shows a clear intent to create a joint tenancy. But the land
contract to the extent it devised or granted the property did so to the Vannosters—not
Mary and Terry. So the statute doesn't apply in the way Mary would like it to. And the
money the Vannosters agreed to pay for the land doesn't constitute a devise or grant to
Mary and Terry, giving her some legal right or interest in the proceeds.

We find In re Estate of Biege, 183 Kan. 352, 327 P.2d 872 (1958), to be
instructive. In that case, a husband and wife sold real property they owned as joint tenants
with a right of survivorship. They sold the land on contract with the buyers making
monthly payments to them for an extended period, similar to the transaction here. The
wife died during the term of the contract, and the executor of her estate sued to recover
half of the outstanding payments, arguing that because the contract was silent about the
proceeds they should be treated as an asset held in common and, thus, without a right of
survivorship. The Kansas Supreme Court rejected the executor's argument and
recognized that absent an express agreement to the contrary, the joint tenancy was
unaffected by the substitution of the sale proceeds for the real property. In addition, the
court pointed out that during the term of the contract, the sellers continued to hold legal
title to the land and did so as joint tenants. 183 Kan. at 357. The court stated the
governing principle, in light of the facts, this way: "The proceeds of joint tenancy
property, in the absence of a contrary intention, retain the character of the property from
which they are acquired." 183 Kan. 352, Syl. ¶ 3.

We see no reason that an analogous result would be inappropriate here. That is,
sales proceeds would commonly and logically be divvied up in proportion to ownership
interests in the property sold. And the notion supports the conclusion that because Mary
had no ownership interest in the land, she likewise had no ownership interest in the
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proceeds absent Terry's expressed intent otherwise. Indeed, if silence in a contract of sale
does not change the character of the ownership interest in the property sold, then a
fortiori that same silence cannot create an ownership interest where there was none.

Mary fishes around on appeal for other arguments to support her claim. For
example, she suggests her inclusion as a seller must have had some legal significance.
The Vannosters counter that under K.S.A. 59-505, a surviving spouse has a claim for a
half interest in any land the deceased spouse possessed during the marriage unless the
survivor has given written consent to the sale or other disposition of the land. Mary's
inclusion as a seller, therefore, signified her consent to the transaction and her
relinquishment of her inchoate statutory survivor's interest. But Mary replies that her
identification in and signature on the warranty deed waived her survivor rights under
K.S.A. 59-505, so her inclusion in the land contract must have been for some other
purpose. We are unpersuaded. Mary could have signed a third writing separate from the
land contract and the deed consistent with K.S.A. 59-505. But that wouldn't impute some
different legal significance to either the contract or the deed. The law often revels in
redundancy. See Golden, Redundancy: When Law Repeats Itself, 94 Tex. L. Rev. 629,
629 (2016) ("[L]egal redundancy in the form of functionally overlapping language,
doctrines, processes, and institutions remains ubiquitous."). The inclusion of Mary in
both the contract and the deed looks to be a belt-and-suspenders approach to the
transaction absent something directly suggesting a different and more particularized
purpose.

Moreover, simply identifying Mary as a seller in the land contract would be a
peculiar and obscure way for Terry to give her either an ownership interest in the real
estate or a right to a portion of the sale proceeds. Terry had regularly used deeds to
convey joint tenancy interests to Mary in real property he owned. He did so with a tract
contiguous to the land sold to the Vannosters—a conveyance he made at the same time as
the sale. Terry's failure to do so with the 66 acres at issue here is a telling indication of
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his intent not to convey an ownership interest to Mary. Likewise, had Terry intended to
insure that Mary would receive the installment payments if he were to die before the
completion of the contract, he could have included a provision to that effect. Since the
payments were spread over seven years, his death in that time, though not probable,
certainly was foreseeable. The omission of language altering the initial terms of an
otherwise detailed contract to account for a foreseeable contingency may be indicative of
an intent against that alteration. That's a reasonable inference. It's at least as reasonable as
an inference that Terry and whoever drafted the contract simply neglected to address a
contrary intent that Mary receive the installment payments if he died, especially absent
some corroborating indicator he actually harbored such an intent.

Mary tries to bolster her position by arguing Terry must have intended that she
share in the sale proceeds because he deposited checks from the Vannosters in their joint
bank account. But the connection Mary draws between Terry's purported intent and his
conduct in cashing the checks is so attenuated as to be speculation bordering on make
believe. Terry presumably would have said or done something more concrete if he
wanted to confer a legally enforceable financial benefit on Mary from the land sale to the
Vannosters.

In sum, the evidence reasonably supports the district court's judgment against
Mary on the merits of her claim that she had a right to all or some portion of the
installment payments due on the contract after Terry's death.

In buttoning up our review of this case, we mention that the Vannosters invited the
district court to recognize an evidentiary presumption that a spouse without an ownership
interest in land who simply appears as a seller or grantor in a contract or deed acquires no
legal interest in the land or the sale proceeds. The district court accepted the invitation
and applied such a presumption in ruling against Mary. The Vannosters have extended
the same invitation to us. We decline and suggest the district court may have acted
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improvidently. But our declination and suggestion do not affect the outcome here, since
there was enough evidence apart from the evidentiary presumption to support the district
court's ruling.

An evidentiary presumption operates this way: If a party proves Fact A, then the
fact-finder must presume Fact B to be true. See K.S.A. 60-413; 31A C.J.S. Evidence
§ 204. For example, in Kansas, there is a presumption of marital paternity. K.S.A. 2018
Supp. 23-2208(a)(1). So if a man and woman are married (Fact A), the husband is
considered or presumed to be the father of any child born during the marriage (Fact B).
Most evidentiary presumptions are rebuttable, meaning the presumed fact may be
disregarded in the face of sufficient contrary evidence. K.S.A. 60-414. The presumption
of marital paternity may be rebutted by clear and convincing evidence a husband is not,
in fact, the father of the wife's child. K.S.A. 2018 Supp. 23-2208(b). An evidentiary
presumption may be created by statute, like the marital paternity presumption, or by
judicial ruling, see In re Estate of Mettee, 237 Kan. 652, 653, 702 P.2d 1381 (1985) (if
will known to be in possession of testator cannot be found after his or her death,
common-law recognizes rebuttable presumption testator revoked it).

Kansas has no evidentiary presumption of the sort the Vannosters advanced here,
as they and the district court acknowledged. They rely heavily on Hendricks v. Wolf, 279
Mich. 598, 273 N.W. 282 (1937), in support of such a presumption. But we do not read
Hendricks that way. The salient facts are quite similar to those here. A married couple
sold a tract of land on contract. The wife was identified as a seller, although the husband
alone owned the land. The husband died before the buyer made all of the payments on the
contract. The wife sued the executor of her husband's estate on the theory her
identification in the land contract evinced a gift from husband to her of a half interest in
the land. The Michigan Supreme Court rejected the argument in a single paragraph with
this explanation: "In the absence of a showing to the contrary, it must be presumed that
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plaintiff joined in the execution of the contracts for the purpose of barring her inchoate
dower rights." 279 Mich. at 602.

The Vannosters have fastened on the word "presumed" to read Hendricks as
recognizing an evidentiary presumption. Nothing in the court's opinion refers to, let alone
develops, an evidentiary presumption. The wording more naturally seems to mean that
unless a contract expressly gifts an interest in the land, nobody should infer or assume
such a gift without something more, especially since a nonowner spouse logically could
be included to release any inchoate probate right. A discussion of a reasonable inference
that may be drawn from a set of the facts is quite different from creating a common-law
evidentiary presumption mandating the finding of a presumed fact. See Shim v. Rutgers,
191 N.J. 374, 386, 924 A.2d 465 (2007) (outlining difference between reasonable
inference and evidentiary presumption). Had the Hendricks court meant to adopt an
evidentiary presumption, it would have stated as much and endeavored to define the
predicate fact to be proved and the resulting fact to be presumed from that proof. Maybe
the court actually did so with an economy of expression that regularly eludes us in our
decisions. But we are disinclined to take that view.

From our perspective, Hendricks actually relies on an inference—not an
evidentiary presumption—much like the general precept we derive from Estate of Beige.
That is, we may reasonably infer (but need not automatically conclude) sellers identified
in a land contract intend to divide the proceeds consistent with their ownership interests,
absent some contrary indication.

Moreover, we aren't persuaded compelling policy reasons or the benefits of
streamlined proof favor an evidentiary presumption. Neither the circumstances of this
case nor the limited debate on this point instill in us some urgency to decide the matter
now. So we leave the definitive consideration of such a presumption for another panel in
another case. Even if we were disposed to recognize an evidentiary presumption, a fair
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argument would support applying it only prospectively to contracts made after that
recognition. Before then, the contracting parties would have had no reason to take
account of a nonexistent presumption in negotiating and memorializing their agreements.
So it would be unfair to impose that presumption in construing their agreements. See
Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1367 (Fed. Cir. 2005) (court
applies material change in evidentiary presumption prospectively only); cf. Allentown
Mack Sales & Service, Inc. v. N.L.R.B., 522 U.S. 359, 378, 118 S. Ct. 818, 139 L. Ed. 2d
797 (1998) (evidentiary presumptions "in effect substantive rules of law"); Kelly v.
VanZant, 287 Kan. 509, 521, 197 P.3d 803 (2008) (statutes affecting substantive law or
rights applied prospectively).

Affirmed.