Jason Deal, Appellee, v. Douglas H. Black, Appellant. (2026)

MEMORANDUM OPINION

Jason Deal sued Douglas H. Black for trespass and property loss after Douglas felled over 100 trees on Jason's property when erecting a boundary line fence. The district court awarded Jason $6,500 in damages. Douglas appeals this award for several reasons, including that the claims were barred by the statute of limitations, the district court should have dismissed the case or limited evidence because the case was not diligently prosecuted, the damages award was legally and factually unsupported, there was insufficient evidence to support the trespass finding, and the court should have assessed liability for the damages to others involved in the fence work. On review, we are unpersuaded and affirm the district court's decision.

Factual and Procedural Background

Jason owns approximately 120 acres of recreational property in Woodson County. In March 2015, his neighbor at the time, Ivan Black, replaced a fence that bordered their two properties. The fence ran approximately 300 feet along the top of a bluff, and was completed by Douglas (Ivan's son), Mitch Black (Douglas’ brother), William “Ricky” Ward, and Yancy Wade (Douglas’ stepson). Ivan purchased the materials needed to build the fence, and paid Ward and Wade wages to build it.

When building the fence, Douglas directed Wade to cut down trees that were located where the new fence was going, trees that overhung the new fence, and trees that were likely to fall on the fence. No survey was performed to confirm the property line before construction of the fence. All the trees that were cut were left where they fell.

The area where the fence was built was not accessible from Jason's property year-round. Jason could only get to it on foot, and he had to cross a creek and climb a rock bluff to get there. As a result, Jason usually only visited that area of his property once a year, to look for shed antlers in the spring.

In March 2016, Jason discovered the felled trees and the new fence, so he contacted Ivan. Ivan provided little information, so Jason called Ivan's son Douglas, who confirmed he was responsible for cutting the trees. Jason observed trees cut down on his property as far as 70 feet from the old fenceline. In total, 133 trees on Jason's property were cut down.

In January 2017, Ivan passed away, and the property transferred to Douglas through a transfer on death deed.

Then, in December 2017, Jason sued Douglas for trespass and damages for the felled trees. Douglas moved to dismiss the suit for a variety of reasons, including the statute of limitations, but his motion was denied. He later moved again to dismiss or limit the presentation of evidence based on dilatory prosecution and failure to comply with court orders. The district court denied this motion but ordered a monetary sanction against Jason's attorney.

As will be explained in more detail, the case took an unusually long time to prosecute and the trial was continued several times. A bench trial was eventually held in October 2024. At trial, Jason testified about the personal and biological significance of the property. He has a degree in Fisheries and Wildlife biology and worked as a public lands regional supervisor. He discussed the importance of wildlife habitat to species diversity and how he purchased the property because it is part of the Cross Timbers ecosystem, which is unique in Kansas. He also detailed the extensive work he had done on the property to improve its habitat, which included invasive species removal. Jason then described how clear-cutting a large area of trees—like what happened here—disturbs the ecosystem and gives invasive species a foothold.

Both parties hired experts regarding damages. Jason hired Ryan Neises, a consulting forester, who examined all the downed trees in the affected area. He observed 115 post oak, 5 hickory, 5 red oak, 2 red cedar, 2 green ash, 2 American elm, 1 hackberry, and 1 redbud, of varying cross-sectional diameters. Based on these totals, Neises calculated the total damage to be $13,799.96. Jason also hired Kevin Church, a forest ecologist and conservation consultant. Church relied on Neises’ observations—but used a different calculation—to determine the value of the downed trees was $61,497.61.

Douglas hired Ivan Katzer, a consulting arborist and tree expert, who estimated the damages to be around $1,273. This opinion was based on Katzer's determination that there was no loss of income, no demonstrable effect on the market value of the land, and the particular trees at issue had no timber value and were not amenity trees. He added that the valuation of the trees at $61,000 for 133 trees on a small plot of land would exceed the market value of the land on which they grew. As such, his calculations were based on replacement costs and accounted for the conditions of the trees and the location.

In August 2025, the district court issued a detailed ruling. The court found Wade trespassed onto Jason's property when he cut down trees well outside the fenceline. Because it found Wade was Douglas’ agent, it found Douglas liable for the damage to the trees. The court ultimately awarded Jason $6,500 in damages. But it reduced that amount by $400 to compensate Douglas for attorney fees he incurred due to a last-minute continuance of the trial requested by Jason's counsel. Douglas appeals this damage award and the district court's denial of his pretrial motions to dismiss.

Review of Douglas’ Appellate Challenges

I. Did the district court err in denying Douglas’ motion to dismiss based on the two-year statute of limitations under K.S.A. 60-513?

Douglas first argues that the district court erred in denying his motion to dismiss on statute of limitations grounds. Actions for trespass are subject to a two-year statute of limitations which begins to run at the time of injury or when the injury becomes reasonably ascertainable. K.S.A. 60-513(a). The parties disagree as to when the injury became reasonably ascertainable. Douglas argues that the statute of limitations should have begun sometime between March 2015 and November 2015 when Jason visited other areas of his property. He points out that the felled trees were not hidden and claims Jason would have discovered them if he had exercised due diligence.

In response, Jason contends that the injury was not reasonably ascertainable until March 2016—when he discovered the damage—because that area was difficult to reach and thus infrequently visited. Therefore, he says the time to file was tolled until he discovered the damage to his property, meaning his December 2017 filing fell within the two-year statute of limitations.

Standard of Review

The district court held a pretrial evidentiary hearing to consider Douglas’ motion to dismiss based on the statute of limitations. On review of a pretrial ruling made after an evidentiary hearing, we review the factual basis for the district court's ruling under the substantial evidence standard but review the interpretation of the applicable statutes de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006), abrogated on other grounds by State v. Milo, 315 Kan. 434, 510 P.3d 1 (2022).

Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023). It “does not require evidence to prove a fact; rather, it simply requires evidence to sufficiently support the fact-finder's conclusion.” State v. Morley, 312 Kan. 702, 712, 479 P.3d 928 (2021). When determining whether substantial competent evidence exists, “an appellate court must not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.” Granados, 317 Kan. at 41. In a case in which the appellate court must review the district court's finding for substantial competent evidence, the appellate court is reviewing a district court's findings of fact, so “it must not substitute its own judgment of the facts and assessment of witness credibility for that of the district court, even when it reasonably finds witness testimony ‘unpersuasive.’ ” 317 Kan. at 55.

Jason's lawsuit was timely.

K.S.A. 60-513(a) provides a two-year limitation to bring an action for trespass upon real property. And K.S.A. 60-513(b) clarifies when this period begins to run:

“Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.”

The period thus begins to run either when the tortious conduct occurred or when the plaintiff either knew or reasonably should have ascertained the injury. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 773, 958 P.2d 656 (1998).

The tortious conduct—the trespass and damage to the trees—occurred in March 2015, as demonstrated by equipment rental receipts. However, the area where the fence was built was known to be difficult if not impossible to reach from Jason's property most of the year. As such, he did not immediately detect the intrusion and damage to his property.

“The phrase ‘reasonably ascertainable’ means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the” injury and its causation. Davidson v. Denning, 259 Kan. 659, 678-79, 914 P.2d 936 (1996). For example:

“In Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 378 P.3d 1090 (2016), the Kansas Supreme Court examined the issue of when it is appropriate to grant summary judgment on the grounds that a cause of action is barred by the statute of limitations. In Armstrong, which involved the mining of limestone under the plaintiffs’ property, the court found that an actionable injury was not reasonably ascertainable to the plaintiffs ‘without more’ than simply knowing that a mining company was working nearby. In Armstrong, the ‘something more’ was the shaking of the plaintiffs’ house which led them to believe it was caused by ‘blasting somewhere on the property and the suspicions of unauthorized mining ․’

“Even so, our Supreme Court explained that the shaking of the house merely ‘triggered an obligation to investigate’ and did not necessarily mean that an actionable injury was reasonably ascertainable to trigger the statute of limitations. [Citations omitted].” Bartlett Family Real Estate Fund v. Robben, No. 126,815, 2024 WL 3738412, at *7 (Kan. App.) (unpublished opinion), rev. denied 319 Kan. 833 (2024).

Unlike in Armstrong, here, there were no occurrences that should have put Jason on notice of the trespass or damage. Although Douglas argues that the construction and maintenance of the fence was never hidden and that it was above ground for anyone to see, even he conceded that the area in which the fence was built was not easily accessible to Jason:

“Q. Was this area where you were building this partition fence, was it difficult to get to?

“A. No. Not from our side.

“Q. But from [Jason's] side, would it have been difficult to—

“A. Oh, yeah. Extremely difficult.”

Jason testified that he only visited the portion of the property at issue once or twice a year due to the difficulty of the terrain, and when he discovered the damage, he contacted Ivan and Douglas to figure out what happened to his property. These calls occurred, at the earliest, in March 2016 (according to Jason), or, at the latest, in March 2017 (according to Douglas). Either way, the December 2017 filing fell within the two-year statute of limitations when measured from Jason's discovery. There is thus substantial competent evidence to support the district court's finding that the two-year period began to run at the earliest in March 2016, and it properly denied the motion to dismiss based on statute of limitations.

II. Did the district court err by not dismissing the case or limiting the presentation of evidence at the pretrial hearing after Jason failed to comply with court orders?

Douglas next argues there was an unreasonable delay in prosecution stemming from failures to comply with discovery deadlines, failures to appear at hearings, and an overall lack of communication by Jason and his counsel, which unfairly prejudiced Douglas and his ability to present a defense. Jason counters that the district court appropriately handled the unfair delays by requiring Jason's counsel to personally cover some of Douglas’ attorney fees and notes that the district court chose to decide the case on the merits in fairness to the parties.

Douglas’ challenges are not preserved.

To the extent that Douglas’ challenge is viewed as a challenge to the admission of evidence, K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record. See In re Morton, 317 Kan. 724, 739-40, 538 P.3d 1073 (2023). “A pretrial objection to the admission or exclusion of evidence must be preserved by contemporaneously objecting at trial, which can be accomplished through a standing objection.” State v. Crudo, 318 Kan. 32, 38, 541 P.3d 67 (2024).

In his motion to dismiss, Douglas requested that Jason “be precluded from presenting witnesses or exhibits since none have been provided by the deadlines in either in July or September, 2022 or to date; and [Jason] has failed to comply with court orders.” However, Douglas did not object to the admission of Jason's witnesses or exhibits at trial on this basis or notice as argued in his second motion to dismiss. He has thus not preserved his challenge to the admission of all of Jason's witnesses and exhibits for appeal.

In any event, even after reviewing the merits of his claims, while a close call, we still do not find that the district court abused its discretion.

Standard of Review

Orders of dismissal for want of prosecution rest in the judicial discretion of the district courts. This is so they may control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business, subject, however, to statutory notice requirements. Such orders will not be reversed on appeal in the absence of a clear showing of abuse of judicial discretion. Frost v. Hardin, 218 Kan. 260, 263, 543 P.2d 941 (1975).

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. The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. In re A.S., 319 Kan. 396, 400, 555 P.3d 732 (2024).

We do not find an abuse of discretion.

K.S.A. 60-241(b)(1) provides that “[i]f the plaintiff fails to prosecute or to comply with this chapter or a court order, a defendant may move to dismiss the action or any claim against it.” In Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002), the court held that to dismiss for failure to prosecute, the court must consider: (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant.

Even though Reed is a federal case and therefore not binding on this court, we have frequently used the Reed factors when considering whether a case warranted dismissal. See Fischer v. Roberge, 34 Kan. App. 2d 312, 315, 120 P.3d 796 (2005); Namelo v. Broyles, 33 Kan. App. 2d 349, 356, 103 P.3d 486 (2004); The Woodmont Co. v. West Ridge Pizza Pub, No. 122,827, 2021 WL 3239518, at *8 (Kan. App. 2021) (unpublished opinion).

When applying the Reed factors here, we find the district court did not abuse its discretion in how it handled Douglas’ motions. As for the first factor—the degree of actual prejudice suffered by the opposing party—Douglas highlights that the construction of the fence and damage to the trees occurred in March 2015, when Ivan owned the property and directed it to be built. But Ivan died in January 2017 and Jason did not file suit until December 2017. While Douglas argues that this delay unfairly prejudiced him because Ivan cannot testify about the fence building, as we have already found, Jason filed suit within the prescribed statutory time limit. The delays which can cause a case to be dismissed under K.S.A. 60-241 are post-filing delays, because the language of the statute presupposes that a suit has been filed. Since Ivan passed away before suit was filed, we cannot consider the absence of his testimony as a factor when determining whether the district court abused its discretion when failing to dismiss the case under K.S.A. 60-241 or issue any orders limiting the presentation of evidence.

In addition to the loss of Ivan's testimony, Douglas claims he suffered prejudice in that he and his witnesses were “asked to give particulars of what was said and done 9 years ago,” meaning their memories were largely strained. While we do not doubt the accuracy of this statement, Douglas fails to point out any facts which his witnesses did not remember or could not address. The facts of the case are fairly simple, and the witnesses seemed to have a fairly detailed memory of what occurred. The parties did not seem to dispute that the trees were felled or even the number of trees, but the right to fell the trees and their value. Given the issues in the case, we cannot say the court abused its discretion in failing to dismiss the petition on the basis that Douglas suffered actual prejudice from the delays.

That said, there were various events throughout the case that caused delays after the case was filed. And the second Reed factor looks at the amount of interference in the judicial process. Douglas argues the amount of interference with the judicial process was fairly substantial here because the case had been pending for seven years, and Jason's counsel's actions directly undermined the district court's orders and authority.

In reviewing the length of time this fairly straightforward case took to get to trial, we agree that this factor weighs in Douglas’ favor. But, we must also consider the third Reed factor—the culpability of the litigant. Some of the delays were unavoidable, such as those caused in 2020 by the COVID-19 pandemic or when the parties paused prosecution to attempt settlement negotiations. Another unforeseen delay occurred when the trial had to be moved from May 2023 to November 2023 because Douglas’ expert was unavailable due to his wife's health issues. Other delays were caused by Jason's counsel, who failed to provide discovery responses or respond to Douglas’ counsel's inquiries about the missing discovery. Jason's attorney also sought continuances of a pretrial hearing due to staffing issues and two last-minute trial continuances, one of which was due to his claim that his car had been burglarized and his trial papers and laptop were stolen.

All in all, while there were substantial delays—which weigh in Douglas’ favor—the culpability of Jason for these delays appears to be low. The district court properly punished Jason's counsel for the failure to comply with court deadlines and noted that the award to Douglas at trial was not to punish Jason for merely hiring a bad attorney, but to prevent unfair harm to Douglas. While a close call, we cannot say the district court was unreasonable in how it weighed these factors.

Additionally, although the district court possessed the statutory authority to dismiss the suit for a perceived failure to prosecute, dismissal of a suit is a sanction generally reserved for extreme cases. See Reed, 312 F.3d at 1195. And Kansas courts have sometimes held a district court abused its discretion in dismissing a suit when a lesser sanction would have served to correct the conduct, especially where the cases have involved dismissals as sanctions for discovery violations under K.S.A. 60-237(b). See, e.g., Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 196, 959 P.2d 849 (1998); Vickers v. City of Kansas City, 216 Kan. 84, 95, 531 P.2d 113 (1975). After the two last-minute trial continuances, Douglas moved for attorney fees and expert fees because of the costs of travel and preparation for trial. And at trial, the district court helped offset these costs by awarding Douglas $400 in attorney fees, half of the requested amount.

The district court also noted that it denied Douglas’ motion to dismiss because it preferred to decide a case based on the merits. Because Jason was not the issue, denying his motion in a manner that effectively moots his claim permanently was not what the district court wanted to do. Therefore, the court crafted sanctions to discourage and penalize counsel's behavior while also allowing the parties’ claims to be tried on their merits. Again, it does not seem unreasonable to punish those responsible without harming those who were not, nor did the court rely on any erroneous facts or law. Thus, we do not find that the district court abused its discretion in denying the motion to dismiss.

III. Did the district court err in awarding damages?

Douglas next argues that the district court erred by not applying the correct measure of damages. He says the court's damage award was based on the sentimental value of the trees to Jason. Douglas claims this was improper because he argues: (1) Jason only sought pecuniary damages, or damages for economic or financial loss, in his petition; and (2) there was no evidence at trial that the trees had a unique value to Jason.

Jason counters that he sought actual damages, which would include nonpecuniary damages like the unique value of the trees and their contribution to the ecosystem. Even so, he points out that the district court's damage award was not based only on the sentimental value of the trees to Jason. Instead, the court considered the value of the trees in the context of the value of the land where they existed. And he claims there was sufficient evidence at trial to support the court's award, including the portion of it that factored in the unique value of the trees.

Standard of Review

“While the Kansas decisions give the courts a great deal of latitude in arriving at the proper measure of damages depending on the facts present, it appears that all of the various approaches at computing damages have the same ultimate goal: to make the damaged party whole.” Kansas Power & Light Co. v. Thatcher, 14 Kan. App. 2d 613, 617, 797 P.2d 162 (1990). “The determination of whether the district court applied the correct measure of damages is a question of law, and therefore, this court's review is unlimited.” Burgess v. Shampooch Pet Industries, Inc., 35 Kan. App. 2d 458, 460-61, 131 P.3d 1248 (2006).

If a district court has fashioned a remedy designed to make an injured party whole, an appellate court does not determine whether the remedy is the best remedy but considers whether the remedy fails to comport with the applicable law or otherwise constitutes a breach of judicial discretion. Peterson v. Ferrell, 302 Kan. 99, 106, 349 P.3d 1269 (2015).

When a verdict or district court decision is challenged for the insufficiency of evidence or as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 407, 266 P.3d 516 (2011).

The district court did not err in its damage award.

As mentioned Douglas asserts that the district court awarded damages that Jason did not request: he claims that Jason only requested the financial value of the trees as damages, which meant the district court was bound to award economic damages only instead of considering the unique or sentimental value of the trees. There are a few problems with this argument.

First, Jason's petition did not limit his prayer for relief only to the market value of the trees; he sought “actual damages for trespass upon his property and destruction of the trees herein referred to,” and, among other orders and costs, he sought “such other and further relief as the Court teams [sic] just and equitable.”

Next, the district court's award of damages did not represent the court's estimation of the sentimental value of the trees to Jason. Instead, the trees’ sentimental value was only one factor in that estimation. In explaining its damage calculation, the district court relied on Evenson v. Lilley, 295 Kan. 43, 50, 282 P.3d 610 (2012), for guidance. In that decision, our Supreme Court explained that there is no “clear and universal rule for measuring damages for the destruction of trees.” 295 Kan. at 50. Instead, it noted that courts follow “the general rule that damage to trees is to be evaluated in light of the loss of value to the entire property, subject to an explicit showing of a quality that makes the damaged trees unique, either in terms of intrinsic value or revenue-producing value.” 295 Kan. at 50.

Here, the district court recognized that the trees had intrinsic or sentimental value. But it also recognized that it had to balance this value “with the fact that the affected area is one half-acre of his total 118-acre tract, and that [Jason] only visits this remote section once per year, and then only to check fences and to look for antlers.” For these reasons, and because “[w]hile this 1/2 acre is clearly damaged, both experts testified that natural regeneration would be the best method to achieve recovery” and the court could not “find that the Cross Timbers ecosystem existing on [Jason's] 118-acre property was otherwise damaged,” the court determined Jason's damages “should include a reasonable compensatory value for the downed trees which is rationally related to the value of the property on which they were located.”

As in Evenson, the district court tempered Jason's requested damages in light of the value of the land itself when formulating its award. We find no error in its approach. And although the court did not base its damage award solely on the intrinsic value of the trees to Jason, it did note that it believed Jason had genuine sentimental beliefs regarding the trees and the damage the destruction did to the Cross Timbers ecosystem. And to the extent that it considered that sentimental value in the “reasonable compensatory value for the downed trees” that it awarded, we find there was sufficient evidence to support the district court's factual findings.

In support of this finding, the district court highlighted Jason's testimony about his personal and professional interests in wildlife and conservation, and his specific interest in the Cross Timbers ecosystem. Apart from his background, Jason testified that his property had a unique biome that he valued and which drew him to purchase the property. He also testified about his efforts to care for his land, including invasive species removal. And he explained how disturbances can disrupt the ecosystem, thereby giving invasive species a foothold. Jason explained that removing large blocks of trees can be particularly damaging because it opens the forest floor canopy, allowing invasive species to take hold. He said he has already observed this happening in the area around the damaged and felled trees.

Forest ecologist and conservation consultant Kevin Church provided similar testimony in support of this point. He testified that the Cross Timbers ecosystem is recognized as one of the most threatened systems. He pointed out that a document published by the Kansas Department of Wildlife and Parks identifies the Cross Timbers ecosystem as being valuable and responsible for around 51 animals that are considered to be at risk. He testified that the fragmentation of the ecosystem caused by the removal of the trees at issue will “have an effect for decades before it's ever recovered from that kind of injury.”

Despite these explanations, Douglas argues that because Jason only visited this remote portion of his property once or twice per year, that means there was nothing special there. But he misses the point. Jason and his expert testified that the intrinsic value of the trees lies in their contribution to the natural ecosystem preservation, not in any recreational value that they provide to the humans who own the land where the trees and ecosystem are located.

In any event, this court does not reweigh the evidence or pass on the credibility of the witnesses. So the district court's statement that it believed Jason's passion for wildlife to be genuine and Church's description of the threats to the Cross Timbers ecosystem valid cannot be reconsidered. Instead, we look at whether the evidence is sufficient to support the district court's findings and decision. And in doing so, we find there was sufficient evidence to support the district court's factual finding that the trees had intrinsic or sentimental value, to the extent that such finding impacted the district court's evaluation of damages.

IV. Did the district court err in finding that Douglas trespassed?

Douglas also argues that there was insufficient evidence to support the assertion that he trespassed on Jason's property because the law gives a landowner the statutory authority to enter an adjoining landowner's property for the purpose of repairing or rebuilding a partition fence. Thus, he claims damages could not be awarded on this basis.

Standard of Review

“When a trial court has made findings of fact and conclusions of law, our standard of review is whether those findings of fact are supported by substantial evidence and whether the findings are sufficient to support its legal conclusions. We then independently review the court's legal conclusions, without any required deference to the district court.” Miller v. Burnett, 54 Kan. App. 2d 228, 230, 397 P.3d 448 (2017).

And, again, we do not reweigh the evidence or pass on the credibility of the witnesses when determining whether a decision is supported by sufficient evidence. Wolfe Electric, Inc., 293 Kan. at 407. But statutory interpretation presents a question of law over which appellate courts have unlimited review. Nicholson v. Mercer, 319 Kan. 712, 714, 559 P.3d 350 (2024).

There was sufficient evidence to find Douglas trespassed on Jason's property.

Douglas starts off by citing Muhl v. Bohi, 37 Kan. App. 2d 225, 234-35, 152 P.3d 93 (2007), to assert that adjoining landowners may enter adjoining properties to repair or rebuild a partition fence. In that case, this court held:

“Under K.S.A. 29-301, the owners of adjoining lands are required to maintain in good repair all partition fences between them. Moreover, if a partition fence is not kept in good repair, one of the adjoining land owners may repair or rebuild it. If an adjoining landowner is given the statutory authority to repair or to rebuild a partition fence, then, by implication, the adjoining landowner should be permitted to enter on the land of the other adjoining landowner for that purpose. [Citations omitted.]” 37 Kan. App. 2d at 234.

While an adjoining landowner may enter to repair or rebuild a fence, we clarified that it must be “at reasonable times and in a reasonable manner to maintain or rebuild the fence.” 37 Kan. App. 2d at 235.

For example, in Muhl, the district court determined that “ ‘the entry upon the property for three feet was not an unreasonable incursion upon the property of the plaintiffs. That fact being established, all of the trees that were removed within three feet of the fence line were reasonable.’ ” 37 Kan. App. 2d at 228.

Here, the district court acknowledged that Douglas had the right to remove the trees in the fenceline and those that were necessary to repair/rebuild the fence. But it did not find the clearing of a 30-foot swath on Jason's land was reasonable because this encroachment damaged trees far beyond the partition fence discussed by the statute. These findings are a reasonable interpretation of K.S.A. 29-301 and are supported by substantial evidence.

Douglas next argues the district court's damage award for trespass was unsupported because he claims there was no evidence to differentiate between trees that were in the fenceline and thus reasonably could be cleared versus those that were too far into Jason's property. Not only were there numerous photos at trial of cut trees showing their proximity to the fence, but there was also testimony from Douglas, Jason, and Wade confirming the 30-foot intrusion onto Jason's land. And, regardless, the district court found the trees within the fenceline were not a part of Jason's claim, and it did not include those trees in its damage determination. Therefore, this claim of error fails as well.

V. Did the district court err in finding Douglas liable for 100% of the damages under K.S.A. 60-258a?

Last, Douglas contends that because joint and several liability has been abolished in Kansas, he should not be responsible for the shares of liability of joint tortfeasors not made a party to the case. Jason argues that the comparative negligence statute does not apply to actions based on the intentional torts of trespass and property damage; thus, Douglas is solely liable for the actions at issue.

Standard of Review

When reviewing a mixed question of fact and law, an appellate court applies a bifurcated review standard. The appellate court generally reviews the factual findings under the substantial competent evidence standard, disregarding any conflicting evidence or other inferences that might be drawn from the evidence. The conclusions of law based on those findings are subject to unlimited review. See Gannon v. State, 305 Kan. 850, 881, 390 P.3d 461 (2017).

The district court did not err in finding Dougals 100% liable for the damages.

In 1974, the Kansas Legislature implemented K.S.A. 60-258a, abolishing joint and several liability and replacing it with comparative liability, in which each tortfeasor bears a loss in proportion to its share of the total fault. K.S.A 60-258a(d); Brown v. Keill, 224 Kan. 195, 203-04, 580 P.2d 867 (1978).

The joinder provision at K.S.A. 60-258a(c) reads as follows:

“Joining additional parties. On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to the death, personal injury, property damage or economic loss, must be joined as an additional party.”

The Legislature intended “to impose individual liability for damages based on the proportionate fault of all parties to the occurrence.” Brown, 224 Kan. at 207. And when the parties are joined, tortfeasors must assert claims against each other in that action rather than file a separate action.

“[A]ll persons who are named as parties and who are properly served with summonses are bound by the percentage determination of causal negligence. Because the statute contemplates that each party has a right to cross-claim against any or all other parties to a lawsuit, ․ any party who fails to assert a claim against any other party in a comparative negligence action is forever barred. A corollary rule naturally follows that a person who has not been made a party to a comparative negligence case should not be bound by a judgment therein, even though his causal negligence may have been determined.” Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978).

That is, one tortfeasor is not at the mercy of the plaintiff's choice of defendants. Instead, K.S.A. 60-258a allows defendants to join additional tortfeasors.

Douglas cites Brown, for the assertion that

“the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.” (Emphasis added). 224 Kan. at 207.

In such instances, formal joinder is not necessary, and the court will look at the defendant's answer to the petition and the evidence produced at trial to determine whether the nonparty's fault could be compared. See 224 Kan. at 207.

Douglas’ answer to the petition did not allege comparative fault of any other tortfeasor. However, he did raise the issue of nonjoined parties in his motion to dismiss, after the statute of limitations had run, thus foreclosing joinder of additional parties. In that motion, Douglas stated that there were four people who built the fence, one of which could not be joined due to lack of personal jurisdiction in Kansas.

The district court denied the motion to dismiss on this basis, finding that the failure to join other alleged tortfeasors did not prevent the court from according complete relief. The failure of a plaintiff to join a third-party joint tortfeasor is not grounds for dismissal as a third-party joint tortfeasor is not a contingently necessary person. See Glenn v. Fleming, 240 Kan. 724, 729, 732 P.2d 750 (1987).

The district court then acknowledged the argument under K.S.A. 60-258a that Douglas’ liability should be measured comparatively with the three other tortfeasors. It noted that even though they were not joined formally, the comparative percentage of fault would be considered.

At trial, when Douglas was asked what his involvement in rebuilding the partition fence was, he stated, “I was in charge of the crew that built it.” He then clarified that the crew consisted of “Ricky Ward and Yancy Wade and Mitch Black.” As for who specifically cut the trees at issue, Douglas testified:

“Q. And so did one person or more people cut the trees?

“A. Yancy Wade cut the trees.

“Q. Okay. And were you telling him what trees to cut or not cut?

“A. I just informed him to cut the trees down that could possibly fall on the fence.”

Jason argued below, and the district court agreed, that this testimony demonstrated an agency relationship between Douglas and Wade. And a principal is bound by and can be held liable for conduct or representations attributable to a person acting as an actual or apparent agent. Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 956, 335 P.3d 1178 (2014); Prairie State Bank v. Hoefgen, 245 Kan. 236, 244, 777 P.2d 811 (1989). Wade, a paid employee, at the express direction of Douglas, cut trees that could fall and hit the fence, rendering Douglas liable for Wade's conduct.

In closing arguments, Jason's attorney discussed the issue of comparative fault, stating:

“[Douglas] wants the Court to find all the fault in Ivan and [Wade]. This case is layered with principal and agency issues. Ivan was the principal, Doug was the agent. [Douglas] was the principal, [Wade] was the agent.

“Usually, us attorneys are looking for ways to get to the principal in these cases, but this does not mean that an agent can also be liable for their own torts. Because of this, [Douglas] may not be at fault 100 percent, but this Court should find that he has the majority of the fault or blame when assigning such.”

Defense counsel countered, arguing:

“[Douglas] did not cut the trees, that's been his position all along. That has been his position in any other hearings that we've been in. There's also been testimony by the other three witnesses through affidavit and through testimony in earlier hearings and today that it was Yancy Wade that cut the trees. Now, it doesn't matter if there was a relationship. There's been no testimony by Yancy Wade, Doug Black, Mitch Black, or Rick Ward that [Douglas] told him what trees to cut. So they're trying to make the assumption that that happened.

“[Douglas’] testimony and all their testimonies is that he didn't. Yancy Wade said, you know, I used my best judgment when I cut the trees. And that's what he did. And the testimony was that the other three—other three people building the fence were not even there, they were working on another fence and so they didn't control what trees were cut.

“There is testimony where [Douglas] said that, yes, I was in control of the group, but that was as to whether they show up, whether—make sure when they get there, they're working. And Mitch Black kind of confirmed that today that no one tells him what to do and that he listened to his dad, and that they were out there to make sure the fence was straight and got built right and the others were out there not for that purpose. So, but he was not in charge of telling where the trees were cut.”

Because Douglas did not point out the specific trees to cut or cut them himself, he argued it was not reasonable to hold him liable for trees he did not cut.

The district court knew that it was to consider the comparative fault of all tortfeasors shown to be responsible for the damage to the trees. It first determined that only Douglas and Wade were involved in the destruction of the trees—removing the consideration of Mitch and Ward. Then it reviewed the roles each individual played, including Douglas himself, conceding that Wade—his stepson—carried out the cutting of the trees on his orders.

All in all, we do not review the credibility of the testimony; instead, we look solely at whether there was substantial competent evidence to support the findings. Because there was substantial competent evidence of Douglas’ principal relationship with Wade, the district court properly determined that there was an agency relationship between the two. Though the district court did not list the percentages of comparative fault, it is clear that it found Douglas to be 100% liable based on the agency relationship. As such the district court calculated and apportioned the damages solely to Douglas, and Douglas is responsible for the $6,500 less the $400 the district court awarded Douglas in attorney fees. We also see no error in this determination.

Affirmed.

Cline, J.: