Full Opinion

NOT DESIGNATED FOR PUBLICATION No. 129,936 IN THE COURT OF APPEALS OF THE STATE OF KANSAS WATSON REAL ESTATE DEVELOPMENT, INC., Appellant, v. TAMMY CESSNA and BENSON CESSNA, Appellees. MEMORANDUM OPINION Appeal from Shawnee District Court; THOMAS G. LUEDKE, judge. Oral argument held August 19, 2026. Opinion filed November 6, 2026. Affirmed. David E. Watson and Elizabeth A. Baker, of Baker, Storey, & Watson, of Topeka, for appellant. Samuel Allison-Natale, of Kansas Holistic Defenders, of Lawrence, for appellees. Before HILL, P.J., SCHROEDER and COBLE, JJ. HILL, J.: In this landlord versus tenant lawsuit, a Kansas real estate company appeals a trial court's denial of an order to pay for travel reimbursement to David Watson, owner of and attorney for Watson Real Estate Development, Inc. The company wanted the tenant defendants, Tammy and Benson Cessna, to pay $1,900 to cover Watson's travel costs from Florida back to Topeka for the trial. We view this order as a matter of discretion for the trial court, and our review of the record reveals no abuse of discretion. We thus affirm the district court's judgment. 1 A landlord tenant dispute is resolved by a jury. David Watson, a practicing Kansas attorney, owns over 100 rental properties. His law office is in Topeka. He also owns Watson Real Estate Development, Inc., which is based in Topeka, Kansas. In June 2024, Watson Real Estate sued some former tenants, Tammy and Benson Cessna. The petition alleged that the Cessnas had damaged its rental property in the amount of $5,434. The Cessnas denied the property damage allegations and counterclaimed, seeking $1,700 for a wrongfully withheld security deposit as well as other damages from Watson Real Estate. On August 11, 2025, Watson Real Estate filed a witness list which included Watson both as a witness and a representative of the company. Then, the Cessnas sought to disqualify Watson as plaintiff's counsel since he was listed on their witness list and he couldn't ethically do both. The company objected to the motion to disqualify. At a hearing on August 25, 2025, the court suggested that the jury trial could begin on October 6, 2025. Watson responded, "I'm going to be out of town on the east coast. Could we do it the next week?" So, at Watson's request, the court then scheduled the trial for October 14 and 15. Next, on October 1, 2025, the trial court heard several motions, including the motion to disqualify Watson as trial counsel. The company fought the motion and wanted Watson to remain as its trial counsel. The trial court denied the motion to disqualify but reserved the possibility to revisit the ruling at trial. At the end of that disqualification hearing, the Cessnas personally served a trial subpoena commanding Watson's presence at the jury trial so they could call him as a 2 witness. Along with the subpoena, they included a $12 witness and mileage fee ($10 for appearance and $2 for mileage). In response, Watson told the court that he would be moving to quash the subpoena, he claimed he was planning to be at his Florida residence on the day of trial unless the Cessnas paid him $1,907 for his attendance. He claimed that he had told the court previously he would not be at trial, though the court seemed surprised by his statement. We can find nothing in the record disclosing that Watson had told the court he would not be at the trial. Watson then said that if the Cessnas were successful at trial, they would get the witness and mileage fees back as trial costs. He did show the court a plane ticket with a scheduled departure from Kansas City on October 4, 2025. The district court denied the motion to quash. The court ruled that K.S.A. 60- 245(c)(2)(B)(ii)(3) on its face excludes officers of business entities from the application of the mandatory witness mileage payment. The court found that compliance with the subpoena would not unduly burden Watson since he had appeared at every hearing since August 20, 2025. Watson also maintains a legal practice in Topeka, where he regularly practices law, and is the owner of Watson Real Estate. Alternatively, the court ruled it could compel Watson, an attorney, to appear as an officer of the court regardless of whether he was a witness. The jury trial was held on October 14 and 15, 2025. The jury denied any relief to Watson Real Estate Development Company, Inc., but found in favor of the Cessnas and awarded them $1,800 in damages. Watson Real Estate appeals. Appellant, Watson Real Estate, did not request any transcripts from the district court's record to use in this appeal. The Cessnas, however, obtained transcripts from several pretrial hearings. We note that Watson Real Estate moved to strike additions to the record on appeal, seeking to prevent the transcripts from the August and October 3 2025 hearings from being part of the record on appeal. The district court denied that motion to strike. We now understand that Watson Real Estate does not appeal from the adverse judgment, but only from the denial of its pretrial motion to quash the subpoena. The company wants $1,895 for Watson’s travel costs to appear at trial. Is this an appealable order? As a court of appeal, we must always be sure of our jurisdiction. Ordinarily, we review final judgments, not preliminary questions. This is an attempted appeal of a motion to quash a subpoena, a preliminary ruling. The law on this point is well established. Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. Baker v. Hayden, 313 Kan. 667, 673, 490 P.3d 1164 (2021). Our standard of review is certain: unlimited. Whether jurisdiction exists is a question of law, subject to unlimited appellate review. City of Wichita v. Trotter, 316 Kan. 310, 312, 514 P.3d 1050 (2022). And, finally, an order denying a motion to quash a subpoena is not a final order and cannot be immediately appealed. Cheney v. Cheney, 186 Kan. 743, 744, 352 P.2d 959 (1960). However, that does not mean that we cannot ever review such a ruling. The cases teach us otherwise. But the cases say such an order may be appealable after the final disposition of the case. First, the rule is well-stated in Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 244 P.3d 642 (2010), where a nonparty sought relief from a subpoena in a pending medical malpractice action. The court held it lacked jurisdiction over the appeal under the 4 collateral order doctrine. The collateral order doctrine is a narrow exception to the general rule that only final decisions may be appealed as a matter of right. A final decision disposes of the entire merits of the underlying action. Litigants must generally wait until after the final judgment to vindicate their rights on appeal. The court held that discovery orders that do not impose a sanction on a nonparty are not immediately appealable under the collateral order doctrine. 291 Kan. at 616. But the door for appellate review was opened in Reed v. Hess, 239 Kan. 46, 716 P.2d 555 (1986), where the court held that discovery orders "as to parties are normally deemed interlocutory and thus nonappealable by the parties as interlocutory appeals because these orders can be reviewed and corrected when final judgment is entered by including them in the appeal from the final judgment." 239 Kan. 46, Syl. ¶ 3. The sanctions imposed were not appealable as interlocutory orders because the sanctions were immaterial to the resolution of the case. But pretrial discovery orders imposing costs on parties can generally be effectively reviewed after final judgment. 239 Kan. at 53-55. In this case, Watson Real Estate did not immediately appeal the order denying its motion to quash the subpoena but makes its appeal after the final decision in the case, which is permitted in the Hess ruling. We have jurisdiction to hear this appeal. Our standard of review is clear. Our court reviews a district court's decision on a motion to quash a subpoena for an abuse of discretion. State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). Also, a district court's decision awarding or denying costs in a civil action is reviewed for an abuse of discretion. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 983, 59 P.3d 325 (2002). We will review these rulings in this case for an abuse of discretion. 5 A review of several service statutes is helpful at this point. K.S.A. 60-245(b) is entitled "Service" and states: "Service of a subpoena . . . must, if the subpoena requires a person's attendance, be accompanied by the fees for one day's attendance and the mileage allowed by law." Subsection (c) of this statute is entitled "Protecting a person subject to a subpoena." Section (c)(1) provides that the party or attorney serving a subpoena "must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." It also provides that the issuing court "must enforce this duty and impose an appropriate sanction . . . on a party or attorney who fails to comply." K.S.A. 60- 245(c)(1). Subsection (c)(3) is entitled "Quashing or modifying a subpoena." This section is divided into two parts: "when required" and "when permitted." Quashing or modifying a subpoena is required when: "(A) When required. On timely motion, the issuing court must quash or modify a subpoena that: .... (ii) requires a resident of this state who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed or regularly transacts business in person or requires a nonresident who is neither a party nor a party's officer to travel more than 100 miles from where the nonresident was served with the subpoena, is employed or regularly transacts business in person, except that, subject to paragraph (3)(B)(iii), the person may be commanded to travel to the place of trial; . . . or (iv) subjects a person to undue burden." K.S.A. 60-245(c)(3)(A). 6 Quashing or modifying a subpoena is permitted when: "(B)When permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: .... (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial." K.S.A. 60-245(c)(3)(B). Under K.S.A. 28-125(a)(3), witnesses shall receive fees "for each mile necessarily and actually traveled in going to and returning from the place of attendance." Under K.S.A. 60-2002(a), as a matter of course, a prevailing party can receive its costs. Mileage of witnesses attending court may be included in the taxation of costs. K.S.A. 60-2003(4). K.S.A. 60-245(b) is not on its face discretionary. It states that service of a subpoena "must" include mileage allowed by law if the subpoena requires a person's attendance. But mileage allowed by law is "for each mile necessarily and actually traveled in going to and returning from the place of attendance." (Emphasis added.) K.S.A. 28-125(a)(3). This wording convinces us that when a district court determines what miles are necessary and actually traveled that determination is a discretionary act. Providing a limit, K.S.A. 60-245(c)(1) imposes a duty on the party serving a subpoena and the court to avoid imposing undue burden or expense on a person subject to a subpoena. To ensure against the imposition of an undue burden, K.S.A. 60-245(c)(3) allows a subpoena to be quashed when it requires a person to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person. It does 7 not apply to a party or a party's officer. But the subsection makes no mention of mileage costs. Thus, although a subpoena cannot be quashed for requiring a witness to travel more than 100 miles when the witness is an officer of the plaintiff, it does not on its face excuse payment of the statutory mileage fee. Here, the district court did not abuse its discretion by refusing to calculate Watson's mileage costs from Florida, finding no undue burden on him because he regularly practices law in Topeka and had been consistently appearing in Topeka to argue this case. The statute says a subpoena must include mileage costs; it does not say mileage costs must be calculated from Florida. There is nothing in the record showing that Watson "necessarily" or "actually" traveled from Florida just for this trial. See K.S.A. 28- 125(a)(3). Before the subpoena was served, we point out that he represented to the district court he would be in Florida the week of October 6, 2025, but would be back the next week for trial. The district court picked the trial date based on his availability. Our view is enhanced because the record shows that Watson fought to remain as trial counsel on the case. At that point he wanted to represent his company as its lawyer. It was only after the Cessnas served him with a subpoena that Watson ever gave any indication that he would not be at trial. Then, we consider that Watson unsuccessfully tried to exclude the transcripts revealing this information from the record for this court's review. He cannot recover travel costs from Florida to Kansas that he would have incurred anyway absent the subpoena. Otherwise, any witness for the plaintiff could decide to go on vacation before trial just to have the defendant pay their costs and harass the defendant. The district court necessarily has discretion to resolve this kind of dispute. We see no abuse of discretion. Affirmed. 8