Washburn South Apartments v. Hession
Kan. Ct. App.
Opinion
No. 126,456
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WASHBURN SOUTH APARTMENTS LLC,
Appellee,
v.
KIA HESSION,
Appellant.
SYLLABUS BY THE COURT
1.
The Kansas Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq., defines
the legal duties of tenants and landlords in residential leases, regardless of the terms of a
rental agreement. Among other duties, a landlord must provide habitable housing—that
is, the landlord must reasonably maintain any common areas, provide a housing unit that
complies with all material health and safety codes, and ensure that the housing unit is
generally safe with adequate electricity, plumbing, sanitation, heat, and ventilation.
2.
Although Kansas law permits landlords to contractually shift some of their duties
to tenants in limited circumstances, the legal duty to provide habitable housing—codified
in K.S.A. 58-2553(a)(1) through (3)—may not be delegated or waived.
3.
A tenant claiming a landlord has breached its duty to provide habitable housing
raises a breach-of-warranty claim and may recover damages suffered due to the breach.
The primary measure of damages is the difference between the fair rental value of the
apartment and the amount the tenant paid. The tenant may also recover consequential
1
damages that arose from the breach or damages that may reasonably be assumed to have
been within the contemplation of both parties as the probable result of the breach.
4.
When a tenant has not paid their monthly rent, K.S.A. 58-2564(b) permits a
landlord to terminate a rental agreement after providing a written notice to the tenant of
the deficiency and allowing the tenant to pay the missed rent within three days.
5.
A rental agreement for a residential housing unit is a contract between the landlord
and tenant that includes—either implicitly or explicitly—the requirements of the
Residential Landlord and Tenant Act. A violation of the Act is both a statutory violation
and a breach of contract.
6.
There is an implicit duty in every contract for each party to perform their
contractual obligations in good faith. This duty of good faith means, among other things,
that a party will not intentionally or purposely do anything to prevent another party from
carrying out their obligations under the agreement. As a corollary, a party to a contract
may not refuse to permit another person to perform their obligations and later claim that
the person has breached the agreement through that nonperformance. Whether the duty of
good faith has been breached and whether that breach caused damage to another
contracting party are questions of fact.
Appeal from Shawnee District Court; DIANE GLYNN, judge pro tem. Submitted without oral
argument. Opinion filed June 6, 2025. Reversed and remanded with directions.
Rebekah Gaston, of Kansas Holistic Defenders, of Lawrence, for appellant.
No appearance by appellee.
2
Before ISHERWOOD, P.J., WARNER and HURST, JJ.
WARNER, J.: Most residential leases in Kansas are governed by the Kansas
Residential Landlord and Tenant Act (commonly called the RLTA). See K.S.A. 58-2540
et seq. The RLTA establishes rights and responsibilities of landlords and tenants that
cannot be waived by a rental contract. For example, tenants must comply with applicable
health and safety ordinances and keep their housing unit reasonably safe and clean. See
K.S.A. 58-2555. And landlords must provide housing that meets minimum habitability
requirements, meaning the housing must comply with applicable building and housing
codes affecting health and safety. See K.S.A. 58-2553(a).
This case arises at the intersection of a landlord's legal duty to provide habitable
housing and a tenant's contractual duty to pay their rent. In 2022, Kia Hession was
renting an apartment from Washburn South Apartments in Topeka. Hession did not make
her monthly rent payment in October 2022. Later that month, Washburn South filed this
lawsuit seeking to evict her and recover the past-due rent. Hession counterclaimed,
arguing her apartment did not meet minimum habitability requirements and asserting this
case was filed in retaliation for Hession's communications regarding the apartment's
condition with the City of Topeka and a housing-assistance program.
After an abbreviated trial, the court ruled in Washburn South's favor, finding
Hession owed her unpaid rent plus interest. (Hession had moved out of the apartment
while the case was pending.) Hession appeals, arguing the court's judgment was based on
incorrect interpretations of the RLTA. After carefully reviewing the record, we agree
with Hession that the court's ruling was based on errors of law. We therefore reverse the
trial court's judgment and remand the case for a new trial.
3
FACTUAL AND PROCEDURAL BACKGROUND
Hession and her one-year-old daughter moved into an apartment at Washburn
South in November 2019 and lived there for three years. On June 8, 2022, Hession
renewed her lease for one year. The new lease stated that Hession would pay Washburn
South monthly rent of $550, due the first day of each month. The lease also stated that
Hession accepted her apartment "as is."
Hession's rent was subsidized through the Shelter Plus Care housing-assistance
program. In August 2022, the program notified Hession that it was terminating its
assistance voucher at the end of September because Hession's apartment did not meet the
program's minimal habitability standards. Hession had 38 days after receiving notice of
the voucher's termination to find a new apartment that would accept a voucher or lose
access to that assistance. But she was unable to find another suitable apartment before the
end of September and was also unable to pay the monthly rent to Washburn South by
October 1 on her own.
On October 4, Washburn South posted a notice on Hession's apartment door that
she must pay her rent or vacate the apartment in three days, or else be evicted from the
apartment. Two days later, a representative from Doorstep (a local nonprofit
organization) contacted Washburn South with questions about how it could pay Hession's
rent. Washburn South's property manager, Crystal Orcutt, told the representative that the
apartment complex would not accept the payment. Hession did not otherwise pay the rent
within three days of the notice, but she remained in the apartment.
On October 17, Washburn South petitioned to evict Hession and collect the unpaid
rent. Hession filed a written answer to the petition. She noted that the Doorstep
representative had attempted to pay her October rent within the three-day period covered
by the apartment complex's notice, but Washburn South had rejected the offer of
4
payment. Hession also asserted two counterclaims: first, that Washburn South violated
the RLTA by breaching its warranty of habitability under K.S.A. 58-2553 and second,
that Washburn South's attempt to evict Hession was in retaliation for Hession reporting
code violations to the City of Topeka—a violation of K.S.A. 58-2572. About two months
later, the apartment complex filed an answer denying Hession's allegations.
The trial
The court scheduled a bench trial for the eviction case on December 27, 2022.
Hession moved out of the apartment weeks before the trial date. The day of the trial, the
court consulted with the parties to see whether they wished to proceed with their claims
since Hession was no longer living at Washburn South. After a few minutes of
discussion, Hession indicated that she would like to proceed with a hearing that day on
the remaining issues in the case—whether and to what extent any rent was owed by
Hession and whether she had suffered and was entitled to damages under the RLTA.
Washburn South's property manager, Orcutt, testified that Hession renewed her
lease agreement on June 8, 2022, at a monthly rate of $550, due the first of each month.
She stated that Hession did not pay the October rent, and so Orcutt posted the three-day
notice to Hession's door on October 4. Orcutt acknowledged that someone from Doorstep
contacted her on October 6 to pay Hession's October rent, but she stated that she told the
representative that Washburn South was "going through evictions and not accepting
payment from Ms. Hession." The judge asked Orcutt whether she would have accepted
any rent payment from Hession before October 7, and Orcutt replied that the owner of the
apartment complex had instructed her not to accept any payment from Hession.
Hession's witnesses focused on the state of her apartment and the steps she had
taken to mitigate some of her health and safety concerns. Nathan Dykeman, a code
enforcement inspector for the City of Topeka, and Greg McGivern, a housing inspector
5
with the Shelter Plus Care housing-assistance program, both testified about the
deficiencies they found when they inspected the apartment in the summer of 2022:
• Dykeman inspected Hession's apartment in June and August. He found several
code violations during his June inspection and summarized these in a letter to
Hession and Washburn South. The letter included 8 categories of violations and 27
photographs showing the deficiencies. Dykeman testified that when he returned in
August, several of the code violations remained unchanged, and he observed no
indication that anyone had attempted to address them.
• McGivern conducted an inspection of Hession's apartment in July and found
several conditions that violated the standards set by Shelter Plus for rental
assistance. For example, the front door was damaged and not operating properly,
and the front window was taped together. McGivern detailed his findings in a
letter to Washburn South and Hession. When McGivern returned for a follow-up
inspection in August, none of these issues had been fixed.
Hession also testified, describing multiple issues that arose during the three years
she lived at Washburn South. These issues included:
• Leaking water and mold in the bathroom,
• Excessive moisture in the air,
• Wet and dirty carpet,
• Holes in the floorboards,
• Cracks in the windows, and
• Significant insect infestation.
6
Hession had reported these issues to Washburn South, submitting 8 written and 12
verbal reports. Hession testified that maintenance staff would come and look at the items
needing repairs, but no one came back to make the repairs or follow up with Hession. She
stated that she complained to the City of Topeka, the Shelter Plus Care housing-
assistance program, and the Department of Housing and Urban Development about these
issues and Washburn South's lack of responsiveness.
Hession testified that when Washburn South did not address these issues, she
purchased several different cleaning products—shampoos, vacuums, and cleaning
solutions—to address the carpet problems. Hession explained that she had to clean each
section of carpet in her apartment once or twice per month and when she did so, the water
released from the carpet was a dark gray color and smelled bad. Needing a fix that did not
require time-consuming cleaning, Hession purchased rugs to cover the carpet so her
daughter did not have to crawl on the dirty floor. She also purchased a dehumidifier to
reduce the excessive moisture level in the air. And she bought plastic containers to store
the clothing for her and her daughter to prevent it from taking on the odor of the
apartment. Hession testified that she believed the apartment's condition warranted no
more than $200 per month in rent.
Before Hession concluded her testimony, the court asked if Hession had given a
14-30 day notice to the landlord—a formal notice that she would be dissolving the lease
if the landlord did not cure these conditions. Hession responded that she never provided
any formal notices of these conditions to Washburn South. The court indicated that this
did not prevent her from bringing her counterclaim, but it found that Hession could only
assert a claim for damages that was "tied to the lease that is related to this eviction" for
the rental period beginning June 8, 2022.
7
The end of the trial and the court's ruling
During Hession's testimony, the court became concerned that Hession's trial was
taking too long given the other hearings scheduled for that day. The court told the parties
that the trial had taken more than 90 minutes, and there were "14 more trials waiting in
the hallway." Hession's lawyer suggested that the parties could finish presenting their
evidence another day, but the court rejected that suggestion. After Washburn South
concluded its cross-examination of Hession, the trial court ended the hearing "[i]n the
interest of time." The court thus did not allow Hession's attorney any redirect
examination and did not allow either party a closing argument or to provide an oral or
written summation of the legal claims.
The court found that Hession owed Washburn South $1,011.94 plus interest—the
full amount requested by the apartment complex. The court then ruled against Hession on
each of her counterclaims:
• The court found that Hession could not prevail on her claim that the apartment was
uninhabitable, as she "knew the circumstances" and the condition of the apartment
when she renewed her lease in June 2022 and took the apartment "as is." (The
court indicated that the rental agreement stated Hession took the apartment "as is,"
but that agreement is not included in the record.) The court also found that
Hession had not provided any "admissible evidence" of damages relating to the
habitability of the apartment.
• The court found that the Doorstep representative had not tried to make an actual
payment—but rather asked how that payment should be made—so Hession had
not shown that Washburn South declined any payment between October 4 and
October 7. And it found that whether Washburn South had wrongfully sought to
evict her was moot because she had since moved out of the apartment.
8
• The court found that there was no evidence that Washburn South retaliated against
Hession based on her previous reports to the City or to Shelter Plus regarding the
state of the apartment. The court indicated that Hession had an obligation to show
that Washburn South retaliated by either "increasing the rent or decreasing
services," and she had not done so.
Hession appeals.
DISCUSSION
The RLTA governs the relationship between landlords and tenants in residential
housing in this state. The RLTA codifies several substantive rights and responsibilities of
landlords and tenants, defines when either party to a rental agreement may end that lease,
and defines when and how a landlord may evict a tenant from a housing unit. This appeal
concerns two of the RLTA's provisions:
• K.S.A. 58-2553(a) states that a landlord has a legal duty to provide housing that
meets minimal habitability requirements; and
• K.S.A. 58-2564(b) states that a landlord must give a tenant three days to pay any
unpaid rent before evicting them from a housing unit.
The trial court found that these provisions had no bearing on Hession's case, and
Hession now challenges several aspects of that ruling. She claims the court erred when it
concluded that the rental agreement's statement that Hession was leasing the apartment
"as is" relieved Washburn South of its legal duty to provide habitable housing under
K.S.A. 58-2553(a). Hession also asserts that the court's finding that she had not paid her
October rent within three days of receiving the eviction notice was unsupported by the
9
record, as the apartment manager testified that the owner would not accept any payment
offered on Hession's behalf. Lastly, Hession claims that the court's decision to cut the
trial short—not allowing any redirect examination by her attorney in presenting her
counterclaims or closing argument—violated her right to due process of law. Washburn
South remains a party to this appeal but did not file a brief.
After carefully reviewing the record and Hession's arguments, we agree that the
trial court's ruling was based on incorrect interpretations of K.S.A. 58-2553(a) and
K.S.A. 58-2564(b). We thus reverse the judgment for Washburn South and remand for a
new trial consistent with this opinion.
1. The landlord's legal duty to provide habitable housing under K.S.A. 58-2553(a)(1)
through (3) may not be waived by a rental agreement.
The RLTA establishes legal duties of every tenant and landlord in a residential
lease, regardless of the terms of the rental agreement. Relevant here, the RLTA requires a
landlord to reasonably maintain any common areas, to provide housing that complies
with all material health and safety codes, and to ensure that the housing is generally safe
with adequate electricity, plumbing, sanitation, heat, and ventilation. K.S.A. 58-
2553(a)(1)-(3); O'Neill v. Dunham, 41 Kan. App. 2d 540, Syl. ¶ 6,203 P.3d 68
(2009).
Although Kansas law permits landlords to contractually shift some of their duties
to tenants in limited circumstances, the duties listed in K.S.A. 58-2553(a)(1) through (3)
may not be delegated or waived. See K.S.A. 58-2549; Joe v. Spangler, 6 Kan. App. 2d
630, 632,631 P.2d 1243
(1981); see also K.S.A. 58-2553(b) (noting that sections [a][4] and [a][5] may be contractually delegated to the tenant if the landlord acts in good faith and not for the purpose of evading responsibilities under the Act). Courts describe these nondelegable responsibilities as the duty to provide habitable housing. See Love v. Monarch Apartments,13 Kan. App. 2d 341, 345
,771 P.2d 79
(1989).
10
K.S.A. 58-2559 provides tenants with two remedies when a landlord breaches this
legal duty: terminating the rental agreement (K.S.A. 58-2559[a]) and recovering damages
caused by the landlord's breach (K.S.A. 58-2559[b]). These remedies may be pursued
collectively or individually. See K.S.A. 58-2559(b). A tenant who seeks to end the lease
can only do so 30 days after they have provided a written notice to the landlord detailing
the deficiencies and the landlord has not made a good-faith effort to repair or otherwise
address the situation within 14 days. See K.S.A. 58-2559(a). But these formal notice
requirements relating to lease termination do not apply to or otherwise restrict a tenant's
ability to seek damages for a landlord's actions under K.S.A. 58-2559(b). See Love, 13
Kan. App. 2d at 345.
Hession argued in her answer and counterclaims that Washburn South breached its
legal duty by providing an apartment that violated several aspects of the Topeka building
code. At the trial, the inspectors for the City and the Shelter Plus Care housing-assistance
program described the dismal state of the apartment where Hession had lived. Washburn
South did not dispute these accounts, though it pointed out Hession had not provided the
14-30 day notice in K.S.A. 58-2559(a) necessary to terminate the rental agreement.
In its ultimate ruling, the trial court correctly noted that the absence of a written
notice only prevented Hession from terminating the rental agreement, not from pursuing
her counterclaim for damages or offsetting any damages claimed by Washburn South.
Yet the court found that Hession had waived these code violations and the apartment's
other habitability problems when she renewed her lease in June 2022, emphasizing that
the lease stated that Hession was accepting the apartment "as is." The court also found
that Hession had offered "no admissible evidence" of damages she incurred due to the
apartment's condition.
11
Hession challenges both conclusions. She notes that Kansas law does not permit
landlords to delegate their responsibilities to provide housing that meets minimum
habitability standards. And she asserts that she offered evidence of compensable damages
suffered from the landlord's breach of that duty. We agree.
First, Kansas law does not allow a landlord to delegate or shift its legal duty to
provide a residence that meets basic habitability standards. The RLTA unequivocally
states that "[a] rental agreement . . . may not permit the receipt of rent free of the
obligation to comply with subsection (a) of K.S.A. 58-2553"—the landlord's duty to
provide habitable housing. K.S.A. 58-2549. Rental agreements may not waive legal rights
of remedies under the RLTA unless that waiver is explicitly permitted by the Act's
provisions. K.S.A. 58-2547(a); see, e.g., K.S.A. 58-2553(b) (allowing some landlords to
contractually shift obligations in K.S.A. 58-2553[a][4] and [5] in certain circumstances).
In other words, the duty to provide habitable housing is not waived even when a tenant
"had prior knowledge of the defects" of the residence. Spangler, 6 Kan. App. 2d at 632.
Thus, the trial court erred when it found that Hession had waived any objection to
the state of the apartment when she renewed her lease in June 2022. Kansas law does not
allow Washburn South to contract away its legal obligations under the RLTA to provide
habitable housing. And any effort by Washburn South to shrug that obligation via its
rental agreement is void and unenforceable. See K.S.A. 28-2547(b).
This error manifested in at least two ways in the court's ultimate ruling: The court
erroneously concluded that Hession was precluded from asserting her defense and
counterclaims that Washburn South had breached its duties under the RLTA. And the
court erroneously found that it could not consider any evidence of Washburn South's
breach of its duty to provide habitable housing before Hession renewed her lease in June
2022. These incorrect conclusions, rooted in a legal error, permeate the court's evaluation
of both Washburn South's claim for damages and Hession's counterclaims.
12
Second, the trial court's alternative conclusion that Hession had not provided any
evidence of damages is not supported by the record. The court found that Hession had
provided "no admissible evidence" of damages, emphasizing at the trial that the court
believed it "need[ed] to see money to be able to actually award damages." And it noted
that although Hession had provided some receipts for purchases she had made before she
renewed her lease, the court would not consider that evidence. In the end, the court
explained that K.S.A. 58-2572(a) requires a tenant to show that their landlord retaliated
against them "by increasing rent or decreasing services," and found that Hession had not
provided any evidence of either action.
Kansas courts have long recognized that a tenant who claims a landlord has
breached its duty to provide habitable housing raises a contractual breach-of-warranty
claim and may recover damages suffered due to the breach. Steele v. Latimer, 214 Kan.
329, Syl. ¶ 9,521 P.2d 304
(1974); see Love,13 Kan. App. 2d at 345-46
. The primary measure of damages is the difference between the fair rental value of the deficient apartment and the amount the tenant actually paid. See13 Kan. App. 2d at 345-46
. The tenant may also recover consequential damages that arose "'from the breach itself,'" or damages that "'may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach.'"13 Kan. App. 2d at 346
.
Hession offered evidence that she suffered damages from living in the dilapidated
apartment. She testified that she believed that her current apartment could only be rented
for $200 per month—$350 per month under the amount required by her rental agreement.
Cf. In re Acquisition of Property by Eminent Domain, 299 Kan. 37, 46,320 P.3d 955
(2014) (property owner may testify to the fair market value of property if they explain
their rationale and demonstrate it is reasonable). Hession also described consequential
damages she claimed to have suffered—she was required to purchase multiple rugs and
cleaning supplies to try to provide a habitable space for herself and her daughter. And,
13
Hession argues, the landlord's refusal to address the condition of the apartment caused
her to lose the housing assistance that had allowed her to afford to live there in the first
place.
The trial court did not state that it found this testimony unreliable, nor did it state
that it found the evidence unpersuasive. Instead, it ruled that Hession had offered "no
admissible evidence" of her damages—a conclusion that is unsupported by the record.
Again, this error undermines the trial court's ruling and requires a new trial.
2. Refusing to accept a rental payment offered on Hession's behalf during the three-
day window in K.S.A. 59-2564(b) raises a factual question whether the landlord
was carrying out its duties under the RLTA in good faith.
Hession next argues that the trial court misinterpreted K.S.A. 58-2564(b) when it
found Washburn South did not breach its duties under the RLTA by refusing to accept a
payment on Hession's behalf before initiating its eviction action. Though we have already
concluded that we must reverse and remand the trial court's judgment, consideration of
this question is necessary to help constrain the issues and arguments during the next trial.
The facts underlying Hession's argument are largely undisputed. Washburn South
posted a notice at Hession's apartment on October 4, indicating she had three days to pay
her October rent or an eviction case would be filed against her. On October 6, a
representative from Doorstep contacted the property manager about paying Hession's
rent. The property manager informed the representative that Washburn South would not
accept any payment of Hession's rent. At trial, the court asked the property manager
whether she would have accepted any payment of rent during that three-day period; the
property manager responded that the owner of the apartments had instructed her not to
accept any payment and to move forward with an eviction action.
14
Hession asserts that her October rent would have been paid by Doorstep if the
property manager had not thwarted Doorstep's payment attempt. In other words, the
apartment complex refused an offer of rent—and never intended to accept any rent—on
Hession's behalf. Hession asserts that Washburn South was using K.S.A. 58-2564(b)'s
notice requirements as a box to be checked rather than a genuine window to allow
Hession to cure her missed payment. The trial court found that no payment had been
made, and even if it had, whether Washburn South could evict Hession was moot because
she had moved out of the apartment by the time of the trial.
K.S.A. 58-2564 establishes when and under what conditions a landlord may
terminate a rental agreement—outlining the steps that must be taken before an eviction
case is filed. When a tenant has not paid their rent, a landlord may terminate a rental
agreement after the landlord provides a written notice to the tenant of the deficiency and
allows three days for the tenant to pay the outstanding rent. K.S.A. 58-2564(b). A
landlord who unconditionally accepts late rent waives the right to take any action for that
breach. See K.S.A. 58-2566. But if a tenant does not pay the rent within three days of
receiving the notice, the rental agreement is dissolved, and the landlord may take
additional legal action—such as filing a lawsuit to seek possession of the residence or
damages from the tenant's breach. See K.S.A. 58-2568; see also K.S.A. 61-3803
(landlord may file an eviction action after providing 72 hours' notice that the tenant must
leave the premises).
Hession's rent was not paid between October 4—when Washburn South posted its
notice—and October 7. Washburn South correctly pointed out at trial that the language of
K.S.A. 58-2564(b) does not include any wiggle room in the payment deadline. But
Hession asserts that it would be inequitable to allow a landlord to thwart a genuine effort
to make a rent payment and then proceed with an eviction action.
15
A rental agreement is a contract between the landlord and tenant that includes—
either implicitly or explicitly—the requirements of the RLTA. See K.S.A. 58-2547(a)
(noting a rental agreement may not seek to waive the requirements of the RLTA); see
also Clark v. Walker, 225 Kan. 359, 363-64,590 P.2d 1043
(1979) (discussing the origin and broad application of the RLTA). But see K.S.A. 58-2541 (listing specific residential leases to which the RLTA does not apply). Thus, a violation of the RLTA is both a statutory violation and a breach of contract. Love,13 Kan. App. 2d at 345-46
.
There is an implicit duty in every contract for each party to perform their
contractual obligations in good faith. Waste Connections of Kansas, Inc. v. Ritchie Corp.,
296 Kan. 943, 965,298 P.3d 250
(2013). This duty of good faith means, among other things, that a party will not intentionally or purposely do anything to prevent another party from carrying out their obligations under the agreement. As a corollary, a party to a contract may not refuse to permit another person to perform their obligations and later claim that the person has breached the agreement through that nonperformance. Bonanza, Inc. v. McLean,242 Kan. 209, 222
,747 P.2d 792
(1987). Whether the duty of good faith has been breached and whether that breach caused damage to another contracting party are questions of fact. See Waste Connections,296 Kan. at 965
.
The trial court's questions to the property manager during her testimony
demonstrated a recognition that parties to residential leases, like other contracts, have a
duty to act in good faith. But the court made no findings as to whether Washburn South
had breached that duty by refusing Doorstep's offer of rent on October 6, essentially
concluding Hession had not been damaged by the filing of the eviction since she later left
the premises. But this conclusion failed to appreciate Hession's other arguments—that the
eviction action itself was wrongful and pursued as retaliation for the actions taken by the
City and Shelter Plus regarding the health and safety concerns at the apartment complex.
Hession asserts that Washburn South made the filing of this lawsuit possible when it
16
refused to accept any payment on her behalf in October 2022; before that time, Hession
was current on her rent payments.
Our review of the record is consistent with Hession's characterization of these
events. The trial court found that Hession had not been damaged by Washburn South's
refusal to accept any October rent payment offered on her behalf while also finding that
Hession's retaliation counterclaim was precluded by her failure to pay that rent. Thus, the
trial court's judgment was the result of circular analysis—refusing to consider the reason
why Hession's October rent was not paid but relying on that nonpayment to deny her
retaliation counterclaim—and was based on an incomplete assessment of the law and
evidence.
To address these concerns on remand, the trial court should consider (1) whether
Washburn South would have accepted any payment made on Hession's behalf before
October 7, (2) whether Washburn South prevented Doorstep from making payments on
Hession's behalf or refused an offer of payment, and (3) whether Washburn South was
retaliating against Hession's complaints to the City and Shelter Plus.
3. Because we remand this case for a new trial, we need not consider Hession's
remaining due-process argument.
In her final claim on appeal, Hession argues that the way the court concluded the
trial violated her constitutional right to due process of law. She points out that the court,
realizing it was pressed for time because several other trials were scheduled that day,
abruptly cut the hearing short. In doing so, the court did not allow Hession's counsel any
redirect examination of Hession—even though she had asserted counterclaims against
Washburn South and had the burden to prove and persuade the court as to her assertions.
The court also did not allow closing arguments regarding the parties' claims or
counterclaims—it merely announced its ruling from the bench once Hession left the
17
stand. According to Hession, these actions collectively deprived her of her right to
procedural due process, which requires an opportunity to be heard "at a meaningful time
and in a meaningful manner." See In re J.D.C., 284 Kan. 155, 166,159 P.3d 974
(2007).
When a person's due-process rights have been violated, the appropriate remedy is
to reverse the resultant judicial action and remand for a new hearing that provides the
appropriate procedural safeguards. See In re J.O., 43 Kan. App. 2d 754, 763,232 P.3d 880
(2010). Here, we have already determined that we must reverse the trial court's
judgment and remand the case for a new trial. Thus, consideration of Hession's
procedural challenge is unnecessary and would have no practical effect on the outcome of
this appeal.
But before closing, we pause to comment on the consequences of these truncated
trial procedures. Regardless of whether the court's trial procedure fell short of the duty to
provide a meaningful opportunity to be heard, many of the errors in this case could have
been avoided if the trial had not ended in such an abrupt manner and without the benefit
of written or oral legal arguments from the parties.
We acknowledge that the court had scheduled several trials on its docket the
afternoon that Hession's trial took place, and that this is often a necessary practice to meet
aggressive timelines for eviction cases set by Kansas statutes. See, e.g., K.S.A. 61-3805
(summons in an eviction case must provide a date the tenant must file an answer or
appear at an answer docket, and this date must be 3 to 14 days after the petition was
filed); K.S.A. 2024 Supp. 61-3807(a) (court should conduct the eviction trial within 14
days after the date listed in the summons). The trial court here was in a difficult spot,
needing to balance the need for a full evidentiary hearing with other competing
considerations.
18
But this bind was not inevitable. The court recognized at the outset of the trial that
these tight deadlines were no longer binding, as Hession had moved to a different
residence. The court was aware that this case involved counterclaims and testimony from
multiple witnesses. Before the start of trial, the court consulted with the parties, who
ultimately opted to proceed rather than continue the case to a different date. But it is clear
from the record that the court remained concerned about the other trials scheduled for that
day. And it is the court—not the parties—that has ultimate control over its docket. See
Holt v. State, 290 Kan. 491, 498,232 P.3d 848
(2010).
A court should, to the extent practicable, schedule time for a trial that allows the
court to consider the claims and counterclaims presented. Here, in an effort to conduct the
trial in a condensed manner so it could hear other scheduled cases, the court issued a
ruling based on an incorrect interpretation and application of K.S.A. 58-2553(a) and
K.S.A. 58-2564(b). And now that case must be retried. We reverse the district court's
judgment and remand for a new trial, consistent with the law discussed in this opinion.
Reversed and remanded with directions.
19