In Everett v. Tharrett, 2025 KS S. Ct. No. 125,999, the Kansas Supreme Court addressed important issues surrounding acquiescence, void judgments, and attorney fees in a trust dispute between siblings. The opinion, delivered by Justice Stegall, provides some clarification on how Kansas courts handle appeals following trust distributions when the party appealing the judgment ordering the distribution has accepted the distribution from the trust.
Background: Trust Distribution and Appeal
Following litigation between siblings over a revocable living trust, the district court closed the trust, ordered final distributions to the beneficiaries, and awarded attorney fees to the trustee—payable from the objecting brother’s share. The brother appealed from the judgment ordering the trust distribution and award of attorney fees. After brother cashed his distribution check from the trust, the trustee moved to dismiss the appeal on the basis of acquiescence.
The Kansas Court of Appeals agreed, explaining that acquiescence is a jurisdictional issue under which a party accepting the benefits of a judgment is precluded from later appealing that judgment. The appellate court agreed that brother had acquiesced to the judgment ordering the distribution of the trust assets and dismissed the appeal. The appellate court then declined to consider brother’s appeal regarding the issue of the trial court’s award of attorney fees, citing lack of subject matter jurisdiction over the merits of the appeal.
Acquiescence to a Void Judgment? Not So Fast.
The appellant argued that the district court’s judgment was void for lack of due process, claiming he was not afforded a meaningful opportunity to be heard and that the district court did not have a full copy of the trust instrument. Brother then argued that the principle of acquiescence did not apply to deprive the appellate court of subject matter jurisdiction under Kansas case law which clearly holds that a party cannot acquiesce to a void judgment.
The Kansas Supreme Court acknowledged that the Kansas Court of Appeals has regularly held that a party cannot acquiesce to a void judgment. But the Supreme Court cautioned that it had never issued such holding. And of course, the Supreme Court is the final word on this jurisdictional issue. The Supreme Court signaled that exceptions may exist to this general rule embraced by the Courts of Appeal, noting that the facts of individual cases may make it “inequitable not to apply the doctrine” of acquiescence in certain cases. The Court expressly declined to address this issue and “assume[d] without deciding, for purposes of this case, that the Court of Appeals is correct and that a party can never acquiesce to a void judgment.”
The Supreme Court sidestepped the issue of the impact of a void judgment on a party’s acquiescence to the judgment by finding no due process violation under the facts of this case that rendered the judgment void. The record revealed that appellant was personally served with the petition, participated actively in the litigation, and had ample opportunity to be heard. Again, the Supreme Court took the opportunity to acknowledge another imprecision in Kansas case law could erroneously suggest that any due process violation would render a judgment void. The Court took the opportunity to clarify Kansas law, emphasizing that only a due process violation that virtually eliminates a party’s opportunity to be heard on the merits will effectively deprive a court of personal jurisdiction over the party, thereby causing any judgment issued by the court to be void.
Subject Matter Jurisdiction and Timing of Acquiescence
Appellant argued that Respondent trustee could not raise the issue of acquiescence on appeal because she did not raise the issue of acquiescence before the trial court and instead raise the issue for the first time on appeal. In reaffirming that acquiescence implicates subject matter jurisdiction, the Court held that the issue may be raised at any time—even sua sponte by an appellate court. Here, accepting a distribution under a judgment that apportioned a fixed sum among litigants constituted acquiescence. The Court rejected the appellant’s argument that the funds he accepted from the trust were somehow separate from the judgment. Accepting part of the distribution implied acquiescence to the whole of the distribution to all beneficiaries of the trust.
Jurisdiction over Attorney Fees
Turning to the trustee’s request for attorney fees on appeal, the Court clarified that a court lacking jurisdiction over the merits may still retain jurisdiction to resolve a live controversy over attorney fees. The question of attorney fees is subject to its own jurisdictional inquiry and Kansas courts recognize that “judicial power” is the power to hear, consider and determine controversies between rival litigants. The Court agreed that a dispute over legal fees, even when jurisdiction is lacking to consider the underlying merits of an appeal, can satisfy the requirements of being a live case or controversy sufficient to provide a court jurisdiction to hear the issue of attorney fees raised on appeal. The Court of Appeals erred in declining to consider that request solely on the basis that it had dismissed the appeal.
Key Takeaways
- Acquiescence to a judgment bars a later appeal, even in trust cases.
- Not every due process violation renders a judgment void—only those that effectively preclude a party’s ability to be heard on the merits of the case.
- Acquiescence can be raised at any time, even for the first time on appeal.
- Attorney fee disputes may still be resolved even if jurisdiction is lacking over the substantive issue of the underlying appeal.
This opinion strives to provides clarity in Kansas caselaw —and a cautionary reminder—on the interplay between trust distributions, due process, post-judgment appellate rights, and that the Supreme Court is the ultimate authority on Kansas case law.
