1 NOT DESIGNATED FOR PUBLICATION
No. 122,367

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

B RUCE S CHULZ , Appellee ,

v.

M ARK B LUMER , Appellant.

MEMORANDUM OPINION

Appeal from Labette District Court; F RED W. J OHNSON J R

. , judge. Opinion filed January 29 , 2021. Reversed and remanded with directions

.

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

No brief filed by appellee.

Before G ARDNER , P.J., S CHROEDER , J., and W ALKER , S.J.

P ER C URIAM : Mark Blumer appeals the denial of his motion to vacate the default judgment entered against him. In 2017, Bruce Schulz obtained a default judgment agai nst Blumer for damages to a tractor ; in 2019 , Schulz filed a motion to reopen the evidence , alleging he found additional damage to his tractor

. Blumer responded by fil ing a motion
to dismiss Schulz ' motion and a motion to vacate the default judgment. The district court
denied Schulz ' motion to reopen the evidence and also found the default judgm ent was void but refused to set aside the judgment because Blumer's motion was not filed within a
reasonable time. Because a void judgment ca n be set aside at any time under K.S.A. 2019 Supp. 60

- 260(b)(4) , we find the district court erred in refusing to se t aside the judgment

.2 W e r everse and remand with directions for the district court to proceed as though the default judgment had not been entered.

F ACTS

On July 18, 2017, Schulz filed a petition in Labette County District Court against
Blumer , alleg ing Blumer drove Schulz ' tractor on May 9, 2016, without permission and then agreed to pay $6,000 for damages to the equipment

. The petition stated repairs and damages were estimated t o exceed $20,000

. Schulz demanded judgment against Blumer in excess of $20,000 and for attorney fees, costs, and any other relief deemed just and equitable

. Schulz filed an amended petition with the only change reflect ing Schultz verified the p etition. Blumer was personally served with a summons on July 28, 2017 , with the petition and amended petition attached

.

Blumer filed no response to the petition. On September 5, 2017, the district court filed a journal entry granti ng default judgment in favor of Schulz and against Blumer for $9,200 for repairs and $15,000 for damages to Schulz ' tractor

. Additionally, the district court granted Schulz $1,015 for filing, service, and attorney fees

. Total judgment was $25,215

. The record on appeal reflects the judgment was satisfied through garnishment s

.

In January 2019, Schulz filed a motion to reopen the evidence in this case

. Schulz alleged he discovered additional damage s to the tractor with repairs costing $17,528.41 and requested an additional judgment against Blumer for $17,528.41. Blumer , through his attorney , filed a motion to dismiss Schulz ' motion to reopen the judgment. Blumer argued the motion should be denied under res judicata because Schulz was at tempting to relitigate claims already decided by the district court

. A few days later , Blumer ' s attorney filed a second motion under K.S.A. 60

- 255(b) to vacate and set aside the default judgment and order of restitution

. In his motion, Blumer requested a refund of all3 amounts p aid under the default judgment. Blumer argued the original default judgment
was voidable because Schulz failed to comply with the notice requirement of Kansas Supreme Court Rule 118(d) (2020 Kan. S. Ct. R. 191). Blumer also claimed Schulz secured the default judgment through fraud by falsely alleging Blumer caused damage to
the tractor

.

The district court held a hearing on the various motions

. A t the conclusion of the hearing , the district court denied Schulz ' motion to reopen the evidence and denied Blumer's motion to vacate the default judgment and grant restitution.

In its memorandum decision, the district court explained it denied Schulz ' motion to reopen the evidence bec ause it found res judicata barred the claim

. The district court
then addressed Blumer's motion to vacate default judgment and grant restitution. The
district court found Schulz was required to comply with Kansas Supreme Court Rule 118(d) and did not do so in obtaining the default judgment. The district court ruled the failure to comply with Rule 118(d) rendered the default judgment voidable, and, because Blumer challenged the judgment, the district court declared the default judgment void.
But the district court found Blumer's motion to vacate the default judgment was not filed within a reasonable time as required by K.S.A. 2019 Supp. 60

- 260(c) and denied that
motion. The district court also denied Blumer ' s motion to reconsider. On appeal , Schultz
did not file a brief.

A NALYSIS

Blumer raises three arguments on appeal : (1) T he district court erred when it did not set aside the default judgment against him after declaring it void; (2) the district court
abused its discretion when it did not rule on Blumer 's claim that the default judgment was obtained by fraud; and (3) the dis trict court erred when it did not set aside the attorney fees ordered in conjunction with the default judgment.4 T HE D ISTRICT C OURT W AS R EQUIRED TO S ET A SIDE A V OID J UDGMENT

.

Blumer notes the district court held the default judgment was void for Schulz ' failure to provide notice as required under Kansas Supreme Court Rule 118(d). Blumer argues the district court was wrong not to set aside the judgment because it found Blumer did not seek relief from the judgment within a reasonable time. Blumer asserts a party may seek relief from a void judgment at any time.

Standard of Review

Appellate courts generally apply abuse of discretion review to district court
decisions under K.S .A. 2019 Supp. 60

- 260(b). But, when a judgment is attacked as void
under K.S.A. 2019 Supp. 60

- 260(b)(4), the standard of review is different. A judgment is void, and a nullity, if a court lacked jurisdiction to render it or acted inconsistent with due

proc ess. When such an allegation is made, a district court has no discretion to exercise; a judgment is either valid or void as a matter of law. Thus, an appellate court applies a de novo standard of review once a district court makes the necessary factual fin dings. In re Adoption of A.A.T. , 287 Kan. 590, 598

- 99, 196 P.3d 1180 (2008).

Analysis

Relying on Winner v. Flory , 11 Kan. App. 2d 263, 265

- 66, 719 P.2d 20 (1986), the
district court ruled Schulz ' failure to comply with the notice requirements in Kansas Supreme Court Rule 118(d) rendered the default judgment voidable . Kansas Supreme Court Rule 118(d) requires a party seeking a default judgment to notify the party against whom relief is sought at least 14 days before the judgment is sought, as well as notify the party " of the amount of money for which judgment that will be taken

. " K ansas S upreme C ourt Rule 118(d) (2020 Kan. S. Ct. R

. 191). B ecause Blumer challenged the judgment as being void under K.S.A. 2019 Supp. 60

- 260(b)(4) , t he district court declared the5 judgment void but denied his request to vacate the judgment, finding B lumer failed to
cha llenge the judgment within a reasonable time under K.S.A. 2019 Supp. 60

- 260(c).

K.S.A. 2019 Supp. 60

- 260(b) lists several reasons a court may relieve a party from a final judgment, including when the judgment is void. K.S.A. 2019 Supp. 60

- 260(b)(4).
A motion under K.S.A. 2019 Supp. 60

- 260(b) must be made within a reasonable time

. While some motion s mus t be filed within one year after the judgment was entered , t he

one
- year restriction does not apply to relief from a void judgment. K.S.A. 2019 Supp. 60

- 260(c)(1).

"A motion to set aside a void judgment may be made at any time, because the passage of time cannot cure the defect of a void judgment." Miller v. Glacier Development Co., L.L.C. , 293 Kan. 665, 672, 270 P.3d 1065 (2011)

. Courts have no discretion when a judgment is attacked under K.S.A. 2019 Supp. 60

- 260(b)(4) because "[e]ither a judgment is valid or it is void, and the court must act accordingly once the
issue is resolved." Bethany Medical Center v. Niyazi , 18 Kan. App. 2d 80, 81

- 82, 847
P.2d 1 3 41 (1993). When a judgment is found to be void, the district court must set aside the judgment. See Coastal Credit v. McNair , 57 Kan. App. 2d 31, 43, 446 P.3d 495 (2019).

In Barkley v. Toland , 7 Kan. App. 2d 625, 646 P.2d 1124 (1982), the defendant moved to set aside a default judgment. The district court found the purported service of the petiti on was ineffective and , therefore , the judgment was void but refused to set aside the judgment because the motion to set aside the judgment was not made within a
reasonable time. The Barkley panel held a motion to set aside a void judgment under
K.S.A. 2019 Supp. 60

- 260(b)(4) may be made at any time, "since the passage of time cannot cure the defect in the judgment." 7 Kan. App. 2d at 630. The panel further found
the district court erred in r efusing to set aside the judgment because the motion was not6 filed in a reasonable time and reversed with directions for the district court to set aside the default judgment. 7 Kan. App. 2d at 630.

Barkley is persuasive

. Blumer argued

— and the district co urt found

— the default judgment was void because Schulz did not comply with Kansas Supreme Court Rule 118(d). And , like the district court in Barkley , the district court refused to set aside the judgment because Blumer did not file his motion for relief from the judgment within a
reasonable time. However, Blumer could challenge the default judgment as v o id at any
time. See Miller , 293 Kan. at 672. The district court erred when it refused to set aside the
void judgment because i t found Blumer did not file his motion w ithin a reasonable time. After finding the default judgment was void, the district court was required by law to set aside the entire defaul t judgment

.

We also note there is no statutory authority or caselaw supporting the granting of attorney fees in a case involving damages for an unliquidated amount. See Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 162, 298 P.3d 1120 (2013) (court ' s authority to grant attorney fees is question of law su bject to unlimited review ; court may not award attorney fees absent statutory authority or agreement by parties)

. The district

court also erred in awarding Schultz attorney fees and costs.

We reverse the district court's order and remand with instruction s for the district court to set aside the default judgment , including the judgment for attorney fees and

costs

. The case shall proceed as though the default judgment had never been entered.

Reverse d and remand ed with directions.