Acquiescence by Acceptance: Kansas Supreme Court Limits Void‑Judgment Claims and Recognizes Standalone Appellate Fee Jurisdiction

Introduction

In Tharrett v. Everett, the Kansas Supreme Court confronted a recurring friction point in trust administration: whether a beneficiary who cashes a distribution check can still challenge the distribution on appeal. The case arises out of the revocable living trust of the late Roxine Poznich. Her daughter, Sarah E. Tharrett, served as successor trustee; her son, David T. Everett, objected to the trustee’s final accounting and distribution plan, leading to litigation.

After David’s objections prevented closure of the trust, Sarah initiated a declaratory action under K.S.A. 60‑1701 et seq. and K.S.A. 58a‑201(c), also seeking costs under K.S.A. 58a‑1004. The district court closed the trust, directed distribution, released the trustee, and awarded Sarah $4,000 in attorney fees from David’s share for “extraordinary services.” David noticed an appeal but then accepted his distribution. The Court of Appeals dismissed the appeal for acquiescence and, citing Kaelter v. Sokol, denied Sarah’s request for appellate fees on the theory it lacked jurisdiction to award fees after dismissing the appeal.

On review, the Kansas Supreme Court affirms the dismissal based on acquiescence, clarifies the narrow class of due process violations that can render a judgment void, and reverses the denial of fees, holding that an appellate court may, in appropriate circumstances, award attorney fees even if it lacks jurisdiction over the merits. The Court awards Sarah $11,320 in appellate attorney fees under Supreme Court Rule 7.07(b)(1) and K.S.A. 58a‑1004.

Summary of the Opinion

Due process violations do not automatically void a judgment. Only those due process violations that so completely deprive a party of notice or the opportunity to be heard as to undermine personal jurisdiction can void a judgment (reconciling prior, imprecise formulations).
A beneficiary who accepts a trust distribution acquiesces in the judgment effecting that distribution and cannot appeal the amount distributed. The benefits accepted are inseparable from the remainder of the distribution that the beneficiary seeks to alter (building on Troyer v. Gilliland).
Acquiescence is a jurisdictional issue that may be raised at any time, including for the first time on appeal or sua sponte by an appellate court (following Varner v. Gulf Ins. Co.).
Appellate courts are not categorically barred from awarding attorney fees merely because they lack jurisdiction over the merits of an appeal; fee requests present a separate “case or controversy” that can support jurisdiction. The Court of Appeals misread Kaelter as a blanket rule.
The Court declines to deem David’s appeal “frivolous” under Supreme Court Rule 7.07(c) but awards Sarah $11,320 in fees under Rule 7.07(b)(1) and K.S.A. 58a‑1004 based on equitable considerations and the trustee’s documented, reasonable efforts.

Analysis

Precedents Cited and Their Influence

The Court leans on and refines a suite of Kansas and federal precedents to settle three distinct issues—voidness, acquiescence, and appellate fee jurisdiction:

Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 136 P.3d 457 (2006): Establishes that acquiescence occurs when a party voluntarily assumes the burdens or accepts the benefits of the judgment it contests on appeal. This frames acquiescence as a jurisdictional doctrine and grounds the dismissal here.
Troyer v. Gilliland, 247 Kan. 479, 799 P.2d 501 (1990): The linchpin for inseparability. Troyer held that when a judgment divides a finite “pot” among parties, accepting one’s share renders the whole result inseparable and bars an appeal challenging the allocation. The Court analogizes trust distributions to joint venture asset divisions: accepting a “piece” acquiesces in the entirety.
Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979): Recognizes limited exceptions—when payments are truly separable or unaffected by issues on appeal. The Court explains why those exceptions do not apply where distributions come from a fixed fund whose allocations are interdependent.
Varner v. Gulf Ins. Co., 254 Kan. 492, 866 P.2d 1044 (1994): Confirms acquiescence may be raised at any time, including sua sponte, because it implicates subject matter jurisdiction. This defeats David’s preservation objection.
Ford v. Willits, 237 Kan. 13, 697 P.2d 834 (1985): Suggests that even an “utterly void” judgment might face equitable defenses like laches in unusual circumstances. The Court stops short of resolving whether one can acquiesce to a void judgment, but flags Ford to caution against absolutist statements.
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010): The federal anchor for the voidness rule: a judgment is void only for certain jurisdictional errors or due process violations that deprive a party of notice or the opportunity to be heard. Kansas adopts Espinosa’s narrow view.
Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 24 P.3d 113 (2001) and Davenport Pastures v. Board of Morris County Comm’rs, 291 Kan. 132, 238 P.3d 731 (2010): The Court acknowledges imprecise language in these opinions implying that any due process inconsistency voids a judgment; today’s opinion clarifies the law—only due process defects that eviscerate personal jurisdiction render a judgment void.
In re Henson, 58 Kan. App. 2d 167, 464 P.3d 963 (2020); In re Marriage of Cline, 17 Kan. App. 2d 230, 840 P.2d 1198 (1992); Sramek v. Sramek, 17 Kan. App. 2d 573, 840 P.2d 553 (1992): Court of Appeals decisions stating that parties cannot acquiesce to void judgments. The Supreme Court does not adopt or reject that proposition, instead assuming arguendo that it could be true but finding no voidness here.
Kaelter v. Sokol, 301 Kan. 247, 340 P.3d 1210 (2015): Held no appellate jurisdiction existed because no final order; thus no authority to award fees. The Court clarifies Kaelter does not create a categorical bar; fee jurisdiction requires its own analysis and can exist even where merits jurisdiction is lacking.
State ex rel. Morrison v. Sebelius, 285 Kan. 875, 179 P.3d 366 (2008): Defines judicial power as the power to hear, consider, and determine controversies between litigants; frames “case or controversy” as issues that are immediate, real, and amenable to conclusive relief. Applied to hold that fee disputes can be a live controversy independent of merits jurisdiction.
Roll v. Howard, 316 Kan. 278, 514 P.3d 1030 (2022): Demonstrates that courts may decide attorney fees even after dismissing an appeal as moot, reinforcing the separateness of fee determinations.
In re Estate of Adair, 237 Kan. 773, 703 P.2d 793 (1985): Explains that a residuary gift is what remains after paying funeral expenses, attorney’s fees, fiduciary compensation, administrative costs, debts, and taxes. Used to rebut David’s “self‑protection” argument by showing that some fees were independently payable from the residue, apart from the $4,000 shifted specifically to David’s share.
K.S.A. 58a‑1004: Authorizes courts in trust proceedings to award costs and attorney fees, “as justice and equity may require,” payable by a party or from the trust. This statutory authority undergirds both the trial court’s fee award and the Supreme Court’s appellate award under Rule 7.07(b)(1).
Kansas Supreme Court Rule 7.07(b)(1), (b)(2), (c) and KRPC 1.5(a): Supply the appellate fee framework and reasonableness factors; the Court uses them to deny fees for frivolousness but grant equitable fees based on a documented lodestar and outcomes achieved.

Legal Reasoning

1) Voidness and Due Process: Narrowing the Doctrine

David argued the district court’s orders were “void” because he was denied due process—allegedly not given a meaningful opportunity to be heard and not provided the full trust instrument. The Court begins by addressing a threshold that the Court of Appeals overlooked: if a judgment is truly void, acquiescence would not bar appellate review (assuming without deciding that rule applies in Kansas).

The Court then clarifies the voidness standard. It rejects the notion that any due process irregularity renders a judgment void. Instead, drawing on Espinosa, a judgment is void only for a jurisdictional defect or a due process violation so extreme that it deprives a party of notice or the opportunity to be heard, thereby undermining personal jurisdiction. The Court expressly narrows earlier broad statements suggesting “a judgment entered in a manner inconsistent with due process is void,” explaining that only a narrow subset of due process violations meet the voidness threshold.

Applied here, the record demonstrates David was served, answered, filed numerous motions and briefs (including counterclaims and disqualification motions), and personally appeared for hearings—including the hearing at which his motions were denied and the trust was closed. Whatever procedural grievances he has, they do not extinguish personal jurisdiction; therefore, the judgment is not void.

2) Acquiescence by Accepting Trust Distributions: Inseparable Benefits

The core of the appeal turns on acquiescence. A party who voluntarily accepts the benefits of a judgment cannot then “adopt an inconsistent position” by appealing to undo or enlarge them. The Court treats the trust distribution like the division of a joint venture’s assets in Troyer: a fixed fund allocated among parties. In that setting, the share accepted by one beneficiary is inseparable from the shares allocated to others—the allocations are interdependent.

David tried to fit within exceptions to acquiescence:

Self‑protection: He claimed he had to accept his distribution because the trustee’s counsel had “helped himself” to fees. The Court rejects this, noting that, independent of the $4,000 fee shifted to David’s share, the trust’s attorney was entitled to fees from the residuary estate under Adair and general trust principles; there was no improper depletion that forced acceptance for self‑preservation.
Separability: David argued his appeal sought “additional” trust money rooted in the instrument, so the funds he accepted were distinct from what he sought on appeal. The Court characterizes this as “creative but ultimately fruitless” rhetoric. Because Sarah brought a declaratory action to obtain a final judicial determination of the amounts due, David’s distribution flowed from the judgment he now attacks. Under Troyer and Brown, where one party’s portion directly affects others’ portions from a fixed pot, the benefits are not separable.
Coercion: The Court of Appeals found no evidentiary basis; the Supreme Court does not disturb that conclusion.

Having accepted his check, David acquiesced to the judgment and divested the appellate courts of jurisdiction over the merits. The appeal is therefore dismissed.

3) Appellate Authority to Award Fees Without Merits Jurisdiction

The Court of Appeals denied Sarah’s request for appellate fees, believing Kaelter barred any fee award after dismissing for lack of jurisdiction. The Supreme Court corrects that reading. Whether an appellate court has authority to award fees is not determined by a binary “merits jurisdiction or nothing” rule; fee requests present a separate justiciable controversy and must be analyzed on their own terms, consistent with Morrison v. Sebelius and Roll v. Howard.

On the merits, the Court denies fees under Rule 7.07(c) because David’s appeal, while unsuccessful, was not frivolous—he raised colorable issues regarding voidness and separability that the Court addressed in detail. But the Court grants fees under Rule 7.07(b)(1), which permits equitable fee awards when the district court would have had authority to award them. Here, K.S.A. 58a‑1004 provides that authority in trust proceedings.

Sarah’s counsel documented 47.85 hours at $200/hour, responded to voluminous pro se filings, and achieved a favorable outcome; the tasks and time are supported by affidavit and itemized records. Considering the KRPC 1.5(a) factors, the Court finds the request reasonable and awards $11,320 in appellate fees (inclusive of fees incurred in the Court of Appeals). The opinion emphasizes that the relative magnitude of fees reflects the exigencies created by the appellant’s litigation tactics, not an overreach by counsel.

Impact

Tharrett v. Everett meaningfully steers Kansas law in three ways:

Trust and Probate Litigation: Beneficiaries who accept distributions do so at the peril of their appellate rights if the judgment allocates a finite fund among multiple claimants. The decision incentivizes prompt, strategic choices: preserve appellate rights by declining payment or risk dismissal for acquiescence unless a recognized exception clearly applies and is well documented in the record.
Due Process and Voidness: The Court reconciles prior imprecise statements by adopting a narrow, jurisdictionally focused conception of “void judgments,” aligning Kansas doctrine with Espinosa. Litigants should plead and prove true jurisdictional defects (e.g., absence of notice or opportunity to be heard) rather than styling ordinary procedural objections as “voidness.”
Appellate Fees Practice: The Court clarifies that appellate courts may award attorney fees even if they lack jurisdiction over the merits, so long as a fee request presents a separate case or controversy and the trial court would have had authority to award fees. Kaelter is not a categorical bar. Practitioners should frame fee motions under Rule 7.07(b)(1) with affidavits and itemizations keyed to KRPC 1.5(a) and any relevant fee‑shifting statute (here, K.S.A. 58a‑1004).

The ruling will likely reduce opportunistic post‑distribution appeals in trust cases and provide a clearer roadmap for fee recovery in appeals dismissed on jurisdictional grounds. It also tempers overuse of “void judgment” arguments by tying voidness to personal jurisdiction.

Complex Concepts Simplified

Acquiescence: If you accept the benefits of a judgment (like cashing a distribution check), you generally cannot appeal to get a different result. You can’t “have it both ways.”
Exceptions to Acquiescence:
- Separability: The part you accepted must be truly independent of the issues on appeal. If everyone is dividing the same pot, your share isn’t separate.
- Coercion: You accepted only because you had no real choice (rare and fact‑specific).
- Self‑protection: You accepted to prevent irreparable loss or waste, not to take advantage of the judgment.
Void versus Voidable: A void judgment is legally a nullity because the court lacked jurisdiction (including because a party had no notice or chance to be heard). Voidable judgments may be wrong but remain effective unless and until reversed.
Personal Jurisdiction: A court’s power over the person. If a party is served and participates, personal jurisdiction is typically secure; due process defects must be extreme (no notice or no opportunity to be heard) to defeat it.
Case or Controversy (Fee Jurisdiction): Courts can decide fee disputes even if they cannot reach the appeal’s merits, because whether one party must pay the other’s fees is itself a concrete, live dispute the court can resolve.
Residuary Estate and Fees: A residuary gift is what remains after paying administrative expenses, including attorney fees. That baseline obligation exists apart from any fee‑shifting assessed against a specific beneficiary.
Rule 7.07(b)(1) vs. Rule 7.07(c): Subsection (c) penalizes truly frivolous appeals; subsection (b)(1) allows equitable fee awards on appeal when a statute or rule would have allowed fees below (e.g., K.S.A. 58a‑1004 in trust cases).

Conclusion

Tharrett v. Everett delivers three durable guideposts for Kansas litigants and courts. First, the Court narrows the void‑judgment doctrine: only due process violations that effectively negate personal jurisdiction will void a judgment; ordinary procedural disputes do not. Second, in allocation cases involving a fixed fund—trust distributions included—accepting one’s share constitutes acquiescence and bars an appeal aimed at changing the allocation; the benefits are inseparable. Third, fee requests are their own justiciable controversies; appellate courts may award attorney fees notwithstanding a lack of merits jurisdiction, provided a fee‑authorizing source exists and the request is properly substantiated.

The Court affirms the dismissal for acquiescence, clarifies important jurisdictional doctrine, and awards $11,320 in appellate fees to the trustee under Rule 7.07(b)(1) and K.S.A. 58a‑1004. For practitioners, the opinion is both a cautionary tale—do not cash the check if you intend to appeal—and a practical blueprint for preserving and obtaining appellate attorney fees in trust litigation.