Harris v. Kansas Dept. for Children and Families

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NOT DESIGNATED FOR PUBLICATION

No. 118,285

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANICA HARRIS,
Appellant,

v.

KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed May 18, 2018.
Reversed and remanded to the State of Kansas Department for Children and Families with directions.

John Paul D. Washburn, of Washburn Law Office, LLC, of Topeka, for appellant.

Jan Haley Maxwell, Kansas Department of Children and Families, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.

PER CURIAM: Danica Harris appeals the denial of her request to set aside a default
order before the Kansas Department for Children and Families (DCF). We find the
district court erred in not setting aside DCF's default order. Reversed and remanded to
DCF for a hearing on the merits.

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FACTS

Harris, a certified nursing assistant at Sunflower Supports Company (Sunflower),
was a caregiver of J.H. who suffers from Down syndrome, Alzheimer's disease, and has
limited vision. Harris took J.H. shopping for groceries and upon carrying the groceries
inside, left J.H. momentarily unattended and buckled into the van seat. J.H. unbuckled
her belt, stood up, fell out of the van, and suffered a cut and bump to her forehead as well
as bruising around her eyes, cheek, and neck. J.H. was taken to the emergency room. As a
result, DCF issued a notice of substantiated allegations of neglect to Harris.

Harris hired attorney Ashley Rohleder of the Washburn Law Office (not affiliated
with Washburn University School of Law) and requested an administrative hearing. The
Office of Administrative Hearings sent notice of the prehearing telephone conference set
for May 11, 2016. Along with the notice, the parties received a prehearing questionnaire
to be returned to the presiding officer one week before the prehearing conference. Harris
and Rohleder failed to participate in the telephonic prehearing conference or submit the
prehearing questionnaire before May 11, 2016. The presiding officer then mailed a notice
of proposed default order on May 11, 2016, advising any motion to set aside the default
order must be filed within 10 days.

Rohleder filed a timely motion to set aside the default order, explaining "Attorney
for Appellant missed the call in, through no fault of Appellant, and Appellant should not
be penalized for such." Rohleder also submitted the prehearing questionnaire that day. In
it, she alleged J.H.'s personal care plan would show Harris was allowed to leave J.H.
unattended except in the restroom. She also alleged J.H. could not be removed from the
vehicle because the groceries were blocking her way. Finally, she alleged J.H. was
buckled in and, on prior trips, had not unbuckled herself to leave the vehicle. Harris
intended to call witnesses and submit J.H.'s personal care plan as well as Sunflower
manuals and policies as evidence.
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DCF replied asking for the default order to stand. Harris responded to DCF's reply
on May 26, 2016. The same day, the presiding officer issued an order upholding the
default order and denying Harris' motion. The presiding officer found Harris failed to
establish good cause by stating why she and Rohleder missed the prehearing conference.
Additionally, the presiding officer found Harris failed to timely complete and return the
prehearing questionnaire. Rohleder appealed the denial to the DCF State Appeals
Committee (Committee).

The parties filed briefs with the Committee. Rohleder alleged the substantiated
allegations of neglect against Harris were unjustified and failed to reflect her actions were
outside the guidelines of Harris' training or violated J.H.'s personal care plan. Rohleder
admitted she missed the prehearing questionnaire deadline and the prehearing conference
because of a calendaring error, but immediately upon realizing the error, contacted the
Office of Administrative Hearings (OAH), was informed the proposed default order
would be sent out, and she could move to set aside the default. In response, DCF argued
Rohleder failed to plead sufficient facts to set aside the initial order of default in
accordance with K.S.A. 2017 Supp. 60-260(b). DCF claimed Rohleder had not
established excusable neglect because she failed to mention a calendaring error until she
responded.

The Committee affirmed the default order. The Committee specifically found
Rohleder admitted to "an error of her calendar," she "mistakenly calendared the date,"
and Harris was personally blameless. The Committee did not address the underlying
merits of the allegations against Harris. In affirming the default order, the Committee
concluded the calendar error was "the only reason for appellant's failure to appear" and
the error was a "legally insufficient excuse."

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Rohleder filed another response motion, although the contents addressed a
different case. The Secretary of DCF treated the additional response as a petition for
reconsideration and denied it.

Harris, through other counsel at Washburn Law Office, petitioned the district court
for judicial review arguing she was entitled to relief under K.S.A. 2017 Supp. 60-
260(b)(1) and (b)(6) because her neglect was excusable and she had a meritorious
defense.

In denying Harris' petition to set aside DCF's final order, the district court applied
K.S.A. 2017 Supp. 60-260(b)(1) and the factors set out in Montez v. Tonkawa Village
Apartments, 215 Kan. 59, 523 P.3d 351 (1974). In addressing those factors, the district
court noted DCF would not be prejudiced by reopening the case. The district court
incorrectly determined Harris did not present evidence or argument of a meritorious
defense to DCF. Instead, the district court reasoned Harris had, for the first time on
appeal, presented her argument about J.H.'s personal care plan to the court. Declining to
review the merits of Harris' defense, the district court found Rohleder's actions amounted
to inexcusable neglect because she failed to calendar properly the prehearing conference,
failed to submit a timely prehearing questionnaire, failed to contact the presiding officer
or DCF counsel after failing to appear, contacted OAH for legal advice, and gave DCF a
cursory explanation of her grounds to set aside the default order.

Harris appeals.

ANALYSIS

On appeal, Harris argues the district court erred by affirming the final order of
default issued by DCF. Harris argues that under Garcia v. Ball, 303 Kan. 560, 570-71,
363 P.3d 399 (2015), she is entitled to have the default judgment set aside because she
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has a meritorious defense that qualifies for "any other reason justifying relief" as set out
under K.S.A. 2017 Supp. 60-260(b)(6). Harris also argues the district court erred at law
because it and DCF failed to consider whether Harris had a meritorious defense and
instead focused solely upon whether Rohleder's actions were excusable or inexcusable
neglect under K.S.A. 2017 Supp. 60-260(b)(1).

Harris was entitled to relief for "any other reason" under K.S.A. 2017 Supp. 60-
260(b)(6).

The Kansas Judicial Review Act (KJRA) defines the scope of judicial review of
state agency actions unless the agency is specifically exempted from application of the
statute. K.S.A. 2017 Supp. 77-603(a); Ryser v. Kansas Bd. Of Healing Arts, 295 Kan.
452, 458, 284 P.3d 337 (2012). Appellate courts exercise the same statutorily limited
review of the agency's action as does the district court, as though the appeal had been
made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564,
567, 232 P.3d 856 (2010); Johnson v. Kansas Employment Security Bd. of Review, 50
Kan. App. 2d 606, 610, 330 P.3d 1128 (2014), rev. denied 302 Kan. 1010 (2015). State
agency actions are reviewable under the KJRA, which also narrows and defines the
proper scope of review. See K.S.A. 77-601 et seq. On appeal, the burden of proving the
invalidity of the agency action rests on the party asserting the invalidity. K.S.A. 2017
Supp. 77-621(a)(1).

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) the action is based on an error of law;
or (3) the action is based on an error of fact. Wiles v. American Family Life Assurance
Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015). An abuse of discretion occurs if discretion is
guided by an erroneous legal conclusion or goes outside the framework of or fails to
consider proper statutory limitations or legal standards. Matson v. Kansas Dept. of
Corrections, 301 Kan. 654, 656, 346 P.3d 327 (2015).
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"Although default judgments are not favored by the law, they are necessary when
the inaction of one party frustrates the administration of justice. Jenkins v. Arnold, 223
Kan. 298, 299, 573 P.2d 1013 (1978); First Management v. Topeka Investment Group, 47
Kan. App. 2d 233, 239, 277 P.3d 1150 (2001). A court may set aside a default judgment
for good cause when the movant has proven by clear and convincing evidence: '"(1) that
the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting
party has a meritorious defense, and (3) that the default was not the result of inexcusable
neglect or a willful act. [Citations omitted.]"' Montez v. Tonkawa Village Apartments,
215 Kan. 59, 64, 523 P.2d 351 (1974); First Management, 47 Kan. App. 2d at 239."
Elledge v. Cheesman, No. 113,087, 2015 WL 6619976, at *4 (Kan. App. 2015)
(unpublished opinion).

Our court is not bound by DCF's interpretation of K.S.A. 2017 Supp. 60-260(b).
See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013).
Here, both DCF and the district court focused on caselaw under K.S.A. 2017 Supp. 60-
260(b)(1) without also addressing Harris' claims under K.S.A. 2017 Supp. 60-260(b)(6)
and whether that subsection allows Harris relief from default because she may have a
meritorious defense. The record shows the Committee largely adopted DCF's argument
when it issued its final order of default against Harris. In addressing the default under
K.S.A. 2017 Supp. 77-520, the Committee applied K.S.A. 2017 Supp. 60-260, although it
did so incorrectly. The presiding officer and the Committee did not consider all the
applicable subsections of K.S.A. 2017 Supp. 60-260(b). Instead, they focused solely on a
portion of caselaw addressing K.S.A. 2017 Supp. 60-260(b)(1) and ignored the
provisions set out in K.S.A. 2017 Supp. 60-260(b)(6) under which Harris was entitled to
relief. Likewise, even though Harris claimed she had a meritorious defense, neither DCF
nor the district court addressed the merits of her claimed defense.

Generally, the law disfavors default judgments. Garcia, 303 Kan. at 568. In ruling
on a motion to set aside default judgment, "a court should resolve any doubt in favor of
the motion so that cases may be decided on their merits." Garcia, 303 Kan. at 568 (citing
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Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 [1978]). The district court may set
aside a final default judgment when the party in default shows "[m]istake, inadvertence,
surprise or excusable neglect" or "any other reason that justifies relief." K.S.A. 2017
Supp. 60-260(b)(1) and (6).

Excusable neglect is only one of many reasons a default judgment may be set
aside. K.S.A. 2017 Supp. 60-260(b)(1)-(6). A meritorious defense is a factor to consider
in a motion to set aside a default judgment under K.S.A. 2017 Supp. 60-260(b)(6).
Garcia, 303 Kan. at 568. In Garcia, the Kansas Supreme Court upheld the district court's
decision to set aside a default judgment. It noted the appellee's motion to set aside the
default pled facts for a meritorious defense, a claim arising under "any other reason
justifying relief" of K.S.A. 2017 Supp. 60-260(b)(6). The Garcia court also distinguished
Montez, finding Montez addressed excusable neglect and inadvertence, but those
standards do not apply to setting aside default under K.S.A. 2017 Supp. 60-260(b)(6)
because this subsection of the statute does not require excusable neglect. A party having
excusable neglect would rely on K.S.A. 2017 Supp. 60-260(b)(1), not K.S.A. 2017 Supp.
60-260(b)(6). Applying only excusable neglect would render K.S.A. 2017 Supp. 60-
260(b)(6) superfluous, something the Garcia court was unwilling to do. See 303 Kan. at
569.

In our case, DCF opened the door to application of K.S.A. 2017 Supp. 60-
260(b)(6) when the Committee adopted the standards and arguments DCF made
regarding K.S.A. 2017 Supp. 60-260(b). However, DCF never addressed the underlying
merits of Harris' defense as required under K.S.A. 2017 Supp. 60-260(b)(6). Harris raised
her meritorious defense within the agency's record before the initial order for default and
before the final order for default. Harris' prehearing questionnaire was received by the
presiding officer after the deadline to return it, but before the presiding officer ruled on
Harris' motion to set aside the default order. In her prehearing questionnaire, Harris
alleged J.H.'s personal care plan would show Harris was allowed to leave J.H. unattended
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except in the restroom. In denying Harris' motion, the presiding officer concluded Harris
failed to complete and return the prehearing questionnaire as ordered. Yet the presiding
officer's initial default order on May 26, 2016, ignored the filing of Harris' pretrial
questionnaire filed six days before.

During its review, the Committee did not address the merits of Harris' defense
against the default findings made by the presiding officer. Rohleder timely raised the
merits of Harris' defense in her brief to the Committee. At the very least, the Committee
should have analyzed whether Harris' meritorious defense and lack of personal fault in
failing to appear satisfied the requirements for setting aside the default judgment under
K.S.A. 2017 Supp. 60-260(b)(6). See Garcia, 303 Kan. at 567.

Similarly, the district court did not address the merits of Harris' defense. The
district court determined: "Harris presented no evidence or argument of [her meritorious
defense] in her multiple pleadings and briefs submitted to the agency." The district court
incorrectly found Harris "relies upon statements never presented to the agency." The
district court found "[i]ssues not raised before the agency cannot be raised for the first
time in the district court except as provided by statute." A plain reading of the record
shows Harris raised the merits of her defense twice—in her prehearing questionnaire
submitted before the presiding officer's initial orders and in her brief to the Committee. In
failing to address those arguments raised before the agency, the district court erred at law
because it failed to determine whether K.S.A. 2017 Supp. 60-260(b)(6) applies to Harris'
meritorious defense. See Garcia, 303 Kan. at 567. A court should resolve any doubt in
favor of the motion to set aside default so that cases may be decided on the merits. See
Garcia, 303 Kan. at 568.

Here, in denying the motion to set aside the default order, neither the agency nor
the district court addressed the merits of Harris' defense; the district court found there
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would be no prejudice to the agency for this case to be decided on the merits. Harris
should be allowed to have her case presented on the merits to the presiding officer.

Reversed and remanded to the Kansas Department for Children and Families with
directions.