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NOT DESIGNATED FOR PUBLICATION

No. 120,847

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LYNN KAUFMAN and KAREN F. KAUFMAN,

Appellees,

v.

STEPHEN W. OLDENETTEL,

Appellee,

BARRY MCNEW,

Appellant,

and

JOHN DOE and MARY DOE, et al.,

Defendants.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 18, 2020.

Affirmed.

Shannon S. Crane, of Hutchinson, for appellant. 

John B. Swearer and Adam M. Teel, of Martindell Swearer Shaffer Ridenour LLP, of Hutchinson,

for appellees.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

ATCHESON, J.: Lynn and Karen Kaufman sold about 45 acres of land near Pretty 

Prairie, Kansas, on contract in 2011 to Barry McNew through his agent Stephen 

Oldenettel. The transaction unraveled about six years later when the Kaufmans sued both 
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McNew and Oldenettel in the Reno County District Court for breach of the contract. 

McNew counterclaimed against the Kaufmans, contending they had first breached the 

contract and cross-claimed against Oldenettel. The district court granted summary 

judgment to the Kaufmans and after a series of proceedings on remedy entered an order 

giving them possession of the land. McNew has appealed. We find no basis in his 

appellate arguments for reversing the district court and, therefore, affirm the summary 

judgment and related relief.

A SHORT FACTUAL AND PROCEDURAL HISTORY

Before turning to the points McNew has raised on appeal, we provide an overview 

of the transaction and the litigation for context. We recognize our account is abbreviated 

and rely on the parties' familiarity with the circumstances for details only peripherally 

related to the remaining legal issues.

Oldenettel negotiated the sale of the land with the Kaufmans for a purchase price 

of $166,000, including a $10,000 down payment. The Kaufmans agreed to carry the 

balance of the purchase price with interest at an annual rate of 7 percent. McNew 

provided the down payment, and the Kaufmans expected either Oldenettel or McNew to 

make set monthly payments. About 18 months later, Oldenettel and the Kaufmans 

renegotiated the annual interest rate to 20 percent and excluded mineral rights from the 

sale. 

McNew made regular payments under the amended contract through July 2017, 

although some of them were late or for less than the full amount due. As we understand 

matters, those periodic deficiencies were rectified to the Kaufmans' satisfaction. But 

McNew stopped making payments in mid-2017, and the Kaufmans discovered he had not 

been paying the property taxes. Those deficiencies were not rectified. The Kaufmans paid 

back property taxes in August to avert a foreclosure and covered a delinquency on a 
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property insurance policy. In the meantime, Oldenettel assigned to McNew any interest 

he might have in the land contract or the property 

The Kaufmans filed their action against McNew and Oldenettel in November 2017 

for breach of the land contract and sought recovery of the land as a remedy. As we 

indicated, McNew counterclaimed against the Kaufmans for their alleged breach of the 

agreement; he contended those breaches should offset or mitigate any purported breaches 

on his part. Throughout the litigation, McNew asserted the Kaufmans breached the 

contract by retaining payments made under the Conservation Reserve Program, a federal 

project providing subsidies to farmers to encourage removal of some environmentally 

sensitive land from cultivation and planting of environmentally friendly crops on other 

land. About 8 of the 45 acres were included in the program, generating annual payments 

of less than $1,000. McNew alleged various causes of action against Oldenettel on the 

grounds he had not been authorized to negotiate or enter into the amended land contract.

The district court granted summary judgment to the Kaufmans on their claim that 

McNew had breached the contract when he failed to pay the property taxes and stopped 

making monthly payments in mid-2017. The district then held several hearings, including 

one with testimonial evidence, to determine the amount due on the contract to fix a 

redemption period for McNew. McNew presented evidence about improvements he made 

to the property and the payments under the federal conservation program. Ultimately, the 

district court entered an order granting the Kaufmans clear title to the land and allowing 

McNew a four-month redemption period. Along the way, McNew filed various motions 

for reconsideration and finally asked the district court to set a supersedeas bond. The 

district court ordered a bond of $75,000; McNew never posted the bond. He did, 

however, file a notice of appeal, and this court granted him leave to docket the appeal 

late. Oldenettel is not a party to this appeal. 
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THE LEGAL ANALYSIS

On appeal, McNew challenges the district court's decision to grant summary 

judgment to the Kaufmans on multiple grounds. We, therefore, begin with the 

well-known standards governing summary judgment in the district court and on appellate 

review. Parties seeking summary judgment (here, the Kaufmans) have the obligation to 

show, based on appropriate evidentiary materials, there are no disputed issues of material 

fact and judgment may, therefore, be entered in their favor as a matter of law. Trear v. 

Chamberlain, 308 Kan. 932, 935, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman, 

Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). In essence, the movants argue 

there is nothing for a jury or a trial judge sitting as fact-finder to decide that would make 

any difference. The party opposing summary judgment (here, McNew) must then point to 

evidence calling into question a material factual representation made in support of the 

motion. Trear, 308 Kan. at 935-36; Shamberg, 289 Kan. at 900. If the opposing party 

does so, the motion should be denied so a fact-finder may resolve that dispute.

In ruling on a summary judgment request, the district court must view the 

evidence most favorably to the party opposing the motion and give that party the benefit 

of every reasonable inference that might be drawn from the evidentiary record. Trear, 

308 Kan. at 935-36; Shamberg, 289 Kan. at 900. An appellate court applies the same 

standards in reviewing the entry of a summary judgment. Trear, 308 Kan. at 936. 

Because entry of summary judgment amounts to a question of law—it entails the 

application of legal principles to uncontroverted facts—an appellate court owes no 

deference to the district court's decision to grant the motion and review is unlimited. See 

Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009); 

Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 460, 276 P.3d 773 (2012).

McNew first argues that the land contract contains no acceleration clause that 

would make all future payments due upon a default. Although that is true, the contract 
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provides that the Kaufmans may recover the real property as a remedy for breach. The 

Kaufmans neither sought nor obtained a judgment for the unpaid balance on the contract. 

They received an order returning the land to them—a remedy the contract specifically 

allowed. The district court, therefore, did not err in granting summary judgment in this 

respect.

McNew next submits he substantially performed under the contract and the district 

court failed to appropriately determine the amount due on the contract as it pertained to 

establishing the redemption period. In responding to the Kaufmans' motion for summary 

judgment, McNew controverted none of the factual representations they made in support 

of their motion. Those representations, therefore, were admitted and could be considered 

by the district court as undisputed facts for summary judgment purposes. By the time the 

Kaufmans filed suit, McNew had not paid on the contract for three months and had 

allowed delinquent property taxes to accumulate for considerably longer. Those were 

material breaches of the contract, meaning McNew had not substantially performed. 

Substantial performance constitutes satisfaction of the contract by fulfilling its

essential purpose. Dexter v. Brake, 46 Kan. App. 2d 1020, 1033, 269 P.3d 846 (2012); 

Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 838-40, 954 P.2d 724 (1998). 

Conversely, a material breach renders something "substantially less [than] or different 

[from]" what the parties bargained for. Dexter, 46 Kan. App. 2d at 1034. Substantial 

performance, then, stands "in direct contrast to . . . material breach." 46 Kan. App. 2d at 

1034. Substantial performance overlooks minor deviations or irregularities in the

promised exchange if what the parties actually provide materially matches the contractual 

obligations. Almena State Bank, 24 Kan. App. 2d at 839; see Harrison v. Family Home 

Builders, LLC, 84 So. 3d 879, 889 (Ala. Civ. App. 2011); Pack 2000, Inc. v. Cushman, 

126 Conn. App. 339, 349, 11 A.3d 181 (2011). Not paying on a contract when payment is 

the principal required performance constitutes a material breach. Here, that would include 
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the monthly payments and the property taxes, especially when the failure was a 

continuing one. The district court did not err in so ruling.

The district court found that McNew had paid very little of the principal due on 

the contract and the bulk of each month's payment covered the interest. The remaining 

debt was a factor in determining the redemption period, along with the fair market value 

of the property. See K.S.A. 2019 Supp. 60-2414(m). McNew argues that the district court 

failed to give fair consideration to the payments under the Conservation Reserve Program 

in its determination of the redemption period. McNew estimated the payments that should 

have gone to him totaled about $6,000. The district court determined that more than 

$160,000 remained due on the contract. In short, even crediting what McNew claimed he 

was owed for the government payments, the adjusted balance wouldn't have materially 

affected the statutory redemption period. McNew has not demonstrated a reversible error 

(and probably no error at all) in this respect.

For his third point on appeal, McNew contends Oldenettel did not have the

authority to enter into the amended contract on his behalf. McNew, however, conceded 

that Oldenettel was authorized to negotiate and sign the original contract with the 

Kaufmans for him. Based on the summary judgment record, then, the Kaufmans knew or 

had reason to know that Oldenettel acted as McNew's agent with respect to the original 

contract. And even crediting McNew's assertion that he had withdrawn Oldenettel's 

authority, the Kaufmans had no reason to know of that change in status. They, therefore, 

reasonably relied on Oldenettel's apparent authority to handle the amended contract. In 

that situation, McNew would be legally bound by the actions of Oldenettel as his 

apparent agent in dealing with third parties, including the Kaufmans. See Town Center 

Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan. App. 2d 1, 6, 148 P.3d 565 

(2006) (discussing apparent agency and authority); Digital Alley, Inc. v. Z3 Technology, 

LLC, 864 F. Supp. 2d 1050, 1072-73 (D. Kan. 2012) ("[T]ermination of actual authority 

does not, by itself, terminate the apparent authority held by an agent," so a third party 
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may rely on that apparent authority until "it is no longer reasonable" to do so.); 

Restatement Third of Agency § 3.11 ("Apparent authority ends when it is no longer

reasonable for the third party with whom an agent deals to believe that the agent

continues to act with actual authority.").

The district court did not err in finding that Oldenettel acted with authority 

(either actual or apparent) to bind McNew to the revised contract with the 

Kaufmans. But that determination would not necessarily affect Oldenettel's 

liability to McNew if he acted without authority. We have not been called upon to 

and, therefore, do not offer any opinions about the legal rights and duties between 

McNew and Oldenettel arising from their relationship as principal and agent.

Finally, McNew argues the district court acted prematurely and 

improvidently in granting summary judgment while he still had discovery requests 

outstanding to the Kaufmans and Oldenettel. As a general proposition, a district 

court should not consider summary judgment until discovery has been completed. 

National Restoration Co. v. Merit General Contractors, Inc., 41 Kan. App. 2d 

1010, 1031, 208 P.3d 755 (2009). But the proposition is hardly ironclad and, in 

practice, often operates more as a sound guideline than an impervious rule. A 

district court has considerable latitude in determining when to rule on a summary 

judgment motion.

Here, McNew has not detailed the outstanding discovery or explained how 

the responses might have affected what he presented in opposition to the 

Kaufmans' motion. Likewise, he has not shown that he availed himself of K.S.A. 

2019 Supp. 60-256(f) to request a continuance from the district court to secure 

additional affidavits or to undertake discovery necessary to respond to the motion. 
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Under the circumstances, McNew has not shown the district court erred in ruling 

on the Kaufmans' motion for summary judgment when it did. See Hauptman v. 

WMC, Inc., 43 Kan. App. 2d 276, 298, 224 P.3d 1175 (2010); Garn v. Higgins, 

No. 118,980, 2019 WL 638277, at *6 (Kan. App. 2019) (unpublished opinion); 

Skyscapes of Castle Pines, LLC v. Fischer, No. 110,444, 2014 WL 5801042, at *6 

(Kan. App. 2014) (unpublished opinion).

Affirmed.