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NOT DESIGNATED FOR PUBLICATION

No. 122,302

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BUD PALMER and JOAN TIMMERMEYER,

Appellees,

v.

JERAN TROTTER,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 26,

2021. Affirmed.

James T. McIntyre, of Law Offices of James T. McIntyre, of Wichita, for appellant. 

Michael A. Priddle, of Law Office of Michael A. Priddle, LLC, of Wichita, for appellees.

Before HILL, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: Jeran Trotter bought multiple items from an auction totaling $4,154. 

After Trotter failed to pay the sum, Bud Palmer and Joan Timmermeyer sought judgment 

against Trotter for breach of contract. In seeking judgment, Palmer and Timmermeyer 

requested discovery from Trotter, who did not produce the information requested. 

Following a motion to compel, the district court ordered Trotter to produce the discovery. 

When Trotter failed to comply with this order and failed to appear at the contempt 

hearing, the district court imposed a discovery sanction against Trotter. Summary 

judgment was granted to the plaintiffs based on the sanction ordered. Trotter appeals the 
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sanction ordered by the district court but does not appeal the granting of summary 

judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 16, 2018, Trotter was the winning bidder on various items listed at an 

auction. Trotter took possession of the items, totaling $4,154.88, but failed to pay the 

balance owed. Thereafter, Palmer and Timmermeyer sought judgment for the amounts 

owed. On November 29, 2018, the district court entered judgment against Trotter and 

awarded $4,069.50 to Palmer and Timmermeyer. About one month later, the judgment 

remained unsatisfied, and the district court filed an order of general execution and 

delivery on January 18, 2019. The order "commanded [the appointed agents] to seize any 

non-exempt property . . . belonging to [Trotter] . . . to be sold in satisfaction of the 

judgment according to law, . . . all in accordance with Article 24 of the Kansas Code of 

Civil Procedure." 

On January 30, 2019, Trotter moved to set aside the judgment "on the basis of lack 

of personal service on [Trotter]." The district court granted this motion and found the 

parties agreed the case would remain under Chapter 60. After the judgment was set aside, 

Palmer and Timmermeyer filed another petition alleging breach of contract after Trotter 

failed "to pay money due for the purchase of auction items . . . totaling $4,154.88 with 

tax." This appears to be the original allegation as well, but the original petition cannot be 

found in the record. In response, Trotter alleged "the funds sought in this action were in 

truth and in fact paid," and he maintained "he paid in cash all sums owed on the day of 

the sale." Trotter also alleged the affirmative defenses of accord and satisfaction, subject 

matter jurisdiction, estoppel, and failure to add an essential party. 

Palmer and Timmermeyer filed a request for production of documents and 

interrogatories, which was served on April 10, 2019. Over a month later, they moved to 
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compel Trotter to produce the discovery requested. On June 5, 2019, the district court 

granted the motion and found the responses to interrogatories were "produced in court." 

The district court awarded Palmer and Timmermeyer $300 in attorney fees. 

On July 5, 2019, Palmer and Timmermeyer moved the district court to find Trotter 

in contempt of court for failing to produce the documents previously requested. They 

requested the district court sanction Trotter under K.S.A. 60-237 and award attorney fees. 

The motion alleged Trotter had not produced the documents requested three months prior 

and that he did not pay the $300 attorney fees ordered at the previous hearing. 

The district court held a hearing on the motion, and Trotter did not appear. The 

court found there was "no compliance with the orders set forth in the Minutes Order of 

[June 5, 2019]" and sanctioned him under K.S.A. 60-237(b)(2), holding: "As a sanction, 

Court finds that [Trotter's] failure to pay, as alleged in [paragraphs 7 and 8] of [Palmer 

and Timmermeyer's] petition, is an established material fact for purposes of the lawsuit." 

These paragraphs alleged "Trotter failed to pay the balance owed" and "[a] final demand 

for payment was made to Trotter on January 14, 2019." The district court also imposed an 

additional $300 attorney fee sanction against Trotter. 

One week later, Palmer and Timmermeyer moved for summary judgment against 

Trotter for breach of contract. They alleged summary judgment was appropriate "because 

the admitted allegations set out in [their] Petition, [Trotter's] admissions, the established 

facts by the Court, and the uncontroverted facts above show that there is no genuine issue 

as to any material fact." Trotter responded and moved to modify sanctions. In his motion, 

Trotter alleged that he 

"did not fail to appear at the Motion to Compel but counsel for [Trotter] through his 

assistant . . . contacted counsel for plaintiff and court and advised both that an evidentiary 

hearing in the case . . . would not be finished as scheduled and the sanction hearing 
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needed to be continued. In addition, the motion for sanctions contained only requests for 

monetary sanctions and not for those in the nature of default and this court lacked 

jurisdiction. . . . 

"The failure to pay is still a thoroughly disputed issue of fact." 

Palmer and Timmermeyer responded to Trotter's motion and argued Trotter failed 

to controvert their motion for summary judgment. The parties waived oral argument on 

the motion. October 30, 2019, the district court granted Palmer and Timmermeyer's 

motion for summary judgment. Applying the standards for summary judgment, the 

district court held "it is not necessary to spend too much time on whether the July 24, 

2019 discovery sanction should be modified or set aside because the Plaintiffs' summary 

judgment motion is supported by the sworn affidavit of Joan Timmermeyer." The court 

detailed Timmermeyer's assertions and held: 

"As such, even if there had been no discovery sanction imposed on Trotter, in order to 

successfully avoid summary judgment Trotter must come forward with evidence to 

establish that there is a genuine dispute as to the facts averred in the Timmermeyer 

affidavit. Trotter has not done this. 

"Because Trotter has not properly controverted the material facts supporting 

Plaintiffs' motion for summary judgment, those facts are deemed uncontroverted. And 

those uncontroverted facts demonstrate that Plaintiffs[] are entitled to judgment as a 

matter of law." 

Upon granting the motion for summary judgment, the district court entered 

judgment against Trotter in the amount of $4,154.88 "plus interest at 10% per annum 

thereafter . . . plus $375.40 for incurred court costs, plus $600 in attorney fees awarded as 

sanctions, and all costs, interest and fees incurred until paid in full." 

Trotter timely filed this appeal. 
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ANALYSIS

On appeal, Trotter argues the district court's sanction was "too severe for the type 

of discovery failure." Although not clear, it appears Trotter is claiming the discovery 

sanction was too severe because "[e]verything in support of [his] claim [was] produced,"

and he contends:

"A lesser sanction, say excluding [Trotter] from presenting any evidence other 

than what is included in his discovery, might be appropriate, and a court not influenced 

by the personalities of the parties would have entered such an order. The order of the 

District Court is unreasonable and a breach of the court['s] discretion. It should be 

reversed for trial and a lesser sanction imposed." 

Palmer and Timmermeyer argue Trotter "willfully and deliberately disregarded"

most of the district court's orders, including: the June 5, 2019 order compelling Trotter to 

produce responses, multiple subsequent requests by Palmer and Timmermeyer to produce 

responses, Palmer and Timmermeyer's motion for contempt, and the order to appear at 

the hearing on July 24, 2019. Palmer and Timmermeyer contend that "in light of 

[Trotter's] conduct and refusal to comply with the district court's orders," it was within 

the district court's discretion "to impose a lesser, minimum discovery sanction." They 

also argue the unclean hands doctrine prevents Trotter from seeking equitable relief 

because he "willfully and deliberately refus[ed] to produce discovery responses." 

Trotter's failures to designate a sufficient record and to appeal the award of summary 

judgment are potentially fatal to his appeal.

To start, it is unclear which discovery sanction under K.S.A. 2020 Supp. 60-

237(b)(2) the district court imposed. In their brief on appeal, Palmer and Timmermeyer

contend the district court ordered the sanction under K.S.A. 2020 Supp. 60-237(b)(2)(i). 

The language of K.S.A. 2020 Supp. 60-237(b)(2)(i) corresponds with the language of the 

district court's order imposing the sanction. Under K.S.A. 2020 Supp. 60-237(b)(2)(i), 
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failing to comply with a court order permits a district court to "direct[] that the matters 

embraced in the order or other designated facts be taken as established for purposes of the 

action, as the prevailing party claims." 

In imposing a sanction against Trotter, the district court found: "[Trotter's] failure 

to pay, as alleged in [paragraphs seven and eight of Palmer and Timmermeyer's] petition, 

is an established material fact for purposes of the lawsuit." Thus, the language used by 

the district court in imposing the sanction supports Timmermeyer and Palmer's assertion 

that the sanction was imposed under K.S.A. 2020 Supp. 60-237(b)(2)(i). 

In the October 30, 2019 order granting summary judgment, however, the district 

court stated it had imposed the sanction under K.S.A. 60-237(b)(2)(ii)—stating: "Trotter 

has refused to provide answers to written discovery submitted by [Timmermeyer and 

Palmer] resulting in a sanction, imposed pursuant to K.S.A. 60-237(b)(2)(ii), prohibiting 

Trotter from opposing the claim made in paragraph 7 of [Palmer and Timmermeyer's] 

Petition that Trotter failed to pay the balance owed to [them]." 

Interestingly, Trotter does not include in his statement of facts as to which 

sanction the district court imposed or otherwise make any argument in his brief on this 

issue. The entirety of Trotter's appeal focuses on the sanction imposed being "too severe."

It is also relevant to note that Trotter did not include the transcript from the July 24, 2019 

hearing where the sanction was imposed. Trotter "notified the [c]ourt that no transcript 

has been or will be requested in this appeal."

As the party making a claim, Trotter has the burden to designate a record 

sufficient to present his points to the appellate court and to establish his claims. See 

Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013);

see also Evergreen Recycle v. Indiana Lumbermens Mut. Ins. Co., 51 Kan. App. 2d 459, 

488, 350 P.3d 1091 (2015) (failure to include response to motion for partial summary 
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judgment precluded review of whether it established genuine issue of material fact). 

There is conflicting information as to whether the sanction the district court relied on was 

subsection (i) or (ii) under K.S.A. 2020 Supp. 60-237(b)(2), and Trotter fails to state 

which sanction was imposed. Trotter's failure to designate a record provides no context 

for this court to review the facts and reasoning the district court relied on in issuing the 

sanctions which Trotter might point to in support of his claim that the sanction was "too 

severe."

In addition, Trotter's appeal only challenges whether the district court's sanction 

was an abuse of discretion. He does not challenge the district court's decision to grant 

summary judgment. A sanction order is generally appealable by including that issue as 

part of an appeal of a final judgment.

"Discovery orders and sanctions in nature of civil penalties for violation of such 

orders as to parties are normally deemed interlocutory and thus nonappealable by parties 

as interlocutory appeals because these orders can be reviewed and corrected when final 

judgment is entered by including them in appeal for final judgment. There is no need for 

treating these interlocutory sanction orders piecemeal and cluttering appellate courts." 

Reed v. Hess, 239 Kan. 46, 53-54, 716 P.2d 555 (1986).

Since Trotter did not appeal the final order of the summary judgment, it is 

questionable that he can appeal the granting of the sanction. In all events, it is not 

necessary to resolve this issue or the issue of Trotter's failure to designate a sufficient 

record. Based on a review of the record that is before this court, the district court's action

under either subsection shows the district court did not abuse its discretion in imposing a 

discovery sanction.
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The district court did not abuse its discretion in ordering a discovery sanction. 

Generally, appellate courts review a district court's imposition of discovery 

sanctions for an abuse of discretion. Deutsche Bank Nat'l Trust Co. v. Sumner, 44 Kan. 

App. 2d 851, 861-62, 245 P.3d 1057 (2010). A judicial action constitutes an abuse of 

discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; 

or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 

515 (2018).

Our Supreme Court has held discovery rules in Kansas should be interpreted 

broadly to accomplish their intended objectives of eliminating surprise from trial and 

simplifying issues and procedures. Burkhart v. Philsco Products Co., 241 Kan. 562, 570, 

738 P.2d 433 (1987); see also Hawkins v. Dennis, 258 Kan. 329, 341, 905 P.2d 678 

(1995) ("The essence of discovery is a search for the truth. It is not a game but an 

enlightened procedure to encourage the resolution of cases based on merit and not on 

surprise and ambush."); Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11-12, 815 P.2d 

528 (1991) ("The purpose of discovery is to eliminate the element of surprise from trials, 

to simplify issues and procedures by full disclosure to all parties of anticipated evidence 

and factual and legal issues, and to consider such matters as may aid in the disposition of 

an action.").

The district court imposed a sanction under K.S.A. 2020 Supp. 60-237(b)(2), 

which reads in relevant part: 

"If a party . . . fails to obey an order to provide or permit discovery, . . . the court where 

the action is pending may issue further just orders. They may include the following:

"(i) Directing that the matters embraced in order or other designated facts be 

taken as established for the purposes of the action, as the prevailing party claims; 

"(ii) prohibiting the disobedient party from supporting or opposing designated 

claims or defenses, or from introducing designated matters in evidence." 
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It appears Trotter does not dispute the district court made specific orders for him 

to comply with discovery. On June 5, 2019, the district court granted Palmer and 

Timmermeyer's motion to compel and ordered Trotter to produce the requested 

documents and for him to pay $300 in attorney fees. Over one month later, on July 24, 

2019, Trotter failed to appear as ordered at the hearing to address the production of 

documents. Upon failing to appear and failing to provide the ordered discovery, the 

district court found Trotter had failed to follow the orders set out in the June 5, 2019 

order and had failed to pay the attorney fee sum. 

Trotter never concedes he failed to comply with the discovery orders, but he never 

disputes these facts either. He also does not claim the district court made an error of fact 

or an error of law. Trotter's claim seems to be based that the district court's sanction was 

unreasonable. Trotter's argument for why it is unreasonable, however, is unclear. Trotter 

seems to argue that the sanction was unreasonable because "[d]espite repeated request[s]

for discovery," Trotter had included the necessary information in his "answer [to the 

petition] and ALL supporting documents." 

A district court has broad discretion to choose among the statutorily provided 

discovery sanction options, "the most appropriate sanction suitable to the history and 

circumstances of the case before [the court]." Vickers v. Kansas City, 216 Kan. 84, 91, 

531 P.2d 113 (1975). A sanction should be "designed to accomplish the objects of 

discovery rather than for the purpose of punishment." Canaan v. Bartee, 272 Kan. 720, 

728, 35 P.3d 841 (2002). Moreover, the purpose of the sanction should be "to prevent the 

noncomplying party from profiting from its violation of the court's order and to protect 

the party which had requested discovery." Dennis, 258 Kan. at 341.

Palmer and Timmermeyer sent Trotter requests for production and interrogatories

and made informal efforts to seek compliance. When those efforts failed, they sought 
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court intervention more than once, which also did not achieve compliance. Trotter was 

given opportunities and more than sufficient time to comply with discovery, and he was 

directly ordered by the district court as to what he needed to do. Trotter provided no 

explanation why he failed to comply with the court's order. The district court could have 

entered a sanction of default judgment but chose to enter a lesser sanction.

Trotter fails to show how the district court's sanction was arbitrary, fanciful, or 

unreasonable. Despite Trotter's assertion that he included enough information in his 

documents, the sanction was appropriate given his refusal to comply with discovery 

requests. Given the purpose of a discovery sanction should be "to prevent the 

noncomplying party from profiting from its violation of the court's order and to protect 

the party which had requested discovery," it cannot be said that no reasonable person 

would agree with the district court's action. See Hawkins, 258 Kan. at 341. Regardless of 

which subsection under K.S.A. 2020 Supp. 60-237(b)(2) is considered, it was not an 

abuse of discretion because under either provision reasonable people could agree such 

sanction prevents Trotter from profiting from his refusal to respond to discovery requests. 

Either sanction permits designated facts to be taken as established, presumably for 

situations such at this when a party disputes facts but will not submit discovery. Without 

such sanction, parties such as Palmer and Timmermeyer would be stuck waiting for 

discovery that they may never receive. The district court did not abuse its discretion when 

it imposed a discovery sanction against Trotter.

Affirmed.