Opinion
No. 111368.
2015-03-20
In the Matter of the ESTATE OF Frank Charles SULZMAN.
Appeal from Sheridan District Court; Scott Showalter, Judge.Donald F. Hoffman, of Dreiling, Bierker & Hoffman LLP, of Hays, for appellant Kasandra Finley.Adam C. Dees, of Vignery & Mason L.L.C., of Goodland, for appellee Harold Sulzman, Administrator of Estate of Frank Charles Sulzman.
Appeal from Sheridan District Court; Scott Showalter, Judge.
Donald F. Hoffman, of Dreiling, Bierker & Hoffman LLP, of Hays, for appellant Kasandra Finley. Adam C. Dees, of Vignery & Mason L.L.C., of Goodland, for appellee Harold Sulzman, Administrator of Estate of Frank Charles Sulzman.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kasandra Finley appeals from a summary judgment granted in favor of Harold Sulzman, administrator of the Estate of Frank Charles Sulzman, deceased. On appeal, Kasandra contends that the trial court erred in failing to grant her motion to set aside the journal entry of final settlement in the Estate of Frank Charles Sulzman. Finding no merit in this contention, we affirm.
On November 18, 2007, Frank Sulzman died intestate in Sheridan County, Kansas. Five days later, Frank's obituary was published in the McCook Daily Gazette, a Nebraska newspaper. Shortly afterward, the court appointed Frank's nephew, Harold Sulzman, as a special administrator to administer Frank's estate. That same day, Harold petitioned the court to administer the estate.
On January 3, January 10, and January 17, 2008, Harold published a notice that he was petitioning the court to open an estate for Frank. About a year and a half later, Harold petitioned the court to settle Frank's estate and approve Harold's administrative acts. Harold published a notice on June 18, June 25, and July 2, 2009, that the court would hear his petition for final settlement on July 12, 2009. On July 13, 2009, the court approved the final settlement and filed the journal entry of final settlement.
Some of Frank's heirs formed SRT Farms, LLC, on March 25, 2009. SRT Farms continues to do business and has transferred, modified, and otherwise used assets from Frank's estate.
Kasandra first discovered that her father had died in August 2011. Approximately 4 months later, on November 8, 2011, Kasandra moved to set aside the journal entry of final judgment. This motion was filed 2 years and 3 months after the journal entry of final settlement was filed.
According to Kasandra, after her mother told Frank that she was pregnant with his child, she never heard from him again. Kasandra never tried to contact Frank because she feared being rejected by him. Kasandra claims that Frank is her father even though she listed Edward Jelinek as her father on her marriage license.
The trial court summarily dismissed Kasandra's motion to set aside the journal entry of final settlement as untimely. The trial court stated that Kasandra received notice of Frank's death through service by publication and that Kasandra's motion to set aside judgment was untimely because she had filed her motion more than 2 years from the date of the journal entry of final settlement.
When the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. David v. Hett, 293 Kan. 679, 682, 270 P.3d 1102 (2011). When the controlling facts are based on the parties' joint stipulation, an appellate court determines de novo whether the moving party is entitled to a judgment as a matter of law. In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012). Did the Trial Court Err in Summarily Denying Kasandra's Motion to Set Aside the Judgment as Untimely?
Kasandra appeals the trial court's summary denial of her motion to set aside the journal entry of final settlement of Frank's estate. Kasandra maintains that her motion was timely filed under K.S.A.2014 Supp. 60–260(b)(6) because she filed her motion 4 months after discovering Frank's death. We are asked to decide whether the trial court abused its discretion when it denied relief from a final judgment:
“A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60–260(b) rests within the sound discretion of the trial court. The trial court's ruling will not be reversed in the absence of a showing of abuse of discretion. [Citations omitted.]” In re Marriage of Leedy, 279 Kan. 311, 314, 109 P.3d 1130 (2005).
To support her argument, Kasandra relies on In re Estate of Newland, 240 Kan. 249, 730 P.2d 351 (1986). In In re Newland, Charles Newland moved to set aside the journal entry of final settlement in the estate of his father, Lester Newland. When Lester died intestate, it was known that Lester had a son but Lester's surviving brother and sisters had never met the son before or knew of his whereabouts. During the administration of Lester's estate, a private investigator was hired in an attempt to locate Charles. After a diligent search for Charles, the trial court found that the administrator had exercised due diligence to locate Charles and treated the finding of due diligence as a determination that Charles had preceded his father in death and died without issue. 240 Kan. at 258.
Two months after the journal entry of final settlement was filed, Charles moved to set aside the judgment under K.S.A. 60–260(b)(6). The trial court denied Charles' motion and this court affirmed that decision. On petition for review, our Supreme Court held that the trial court incorrectly applied a finding of due diligence to a determination of death and heirship. The court held that “[t]he question of whether the administrator exercised due diligence pertains to notice to heirs, not to a determination of death and heirship.” 240 Kan. at 258.
Our Supreme Court further held that Charles was entitled to relief under K.S.A. 60–260(b)(6). The court explained that K.S.A. 60–260(b)(6) “is to be liberally construed ‘to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.’ “ The court determined that the scales tilted towards Charles in this case because he was unlawfully divested of his property based on the trial court's failure to require proof in determining heirship. 240 Kan. at 260.
In the present case, the trial court determined that In re Newland was distinguishable and therefore inapplicable to this case. First, unlike in In re Newland, the administrator in this case did not know that Frank had a child. Second, the trial court in our case did not erroneously apply a due diligence finding to a determination of death and heirship. Third, unlike in In re Newland, Kasandra failed to file her motion to set aside the final settlement within the 2–year limitation period under K.S.A.2014 Supp. 60–307(a)(5)(A) and K.S.A.2014 Supp. 60–309(a). Moreover, because the heir in In re Newland timely moved to set aside the judgment of the journal entry of final settlement, the Newland court was not required to address any untimely issues as we have in this case. Thus, In re Newland is clearly distinguishable from this case.
Two statutes guided the trial court's decision in this case. The first statute is K.S.A.2014 Supp. 60–307(a)(5)(A) which states:
“(a) When permissible. Service may be made by publication in any of the following cases:
(5) in an action specified in this subsection, on any of the following who are made defendants:
(A) Unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of a person alleged to be deceased.”
The next applicable statute is K.S.A.2014 Supp. 60–309(a) which states: “(a) Procedure. A party against which a judgment has been entered on service by publication in a newspaper, may, at any time within two years after its entry, move for relief from the judgment and to be allowed to defend.”
In this case, Harold as administrator, provided notice by publication as required by statute. Harold published a notice that stated he was petitioning the court to open Frank's estate. Later, Harold published a notice that stated the court would hear his petition for final settlement on Frank's estate. As stated in K.S.A.2014 Supp. 60–307(a)(5)(A), service by publication may be made on unknown heirs. Thus, Kasandra was properly served notice of the probate of Frank's estate through publication. As a result of the notice by publication, Kasandra had 2 years from the date of the final settlement to challenge the settlement. See K.S.A.2014 Supp. 60–309(a). Because Kasandra filed her motion outside of the 2–year limitation period, she seeks to bring herself within the scope of K.S.A.2014 Supp. 60–260(b)(6), which has no specific time requirements.
Nevertheless, the trial court determined that Kasandra had filed her motion to set aside the journal entry of final settlement 2 years, 3 months, 3 weeks, and 6 days or 847 days after the journal entry of final settlement was filed. Thus, Kasandra's motion was filed clearly outside the 2–year limitation period under K.S.A.2014 Supp. 60–309(a). The trial court concluded that K.S.A.2014 Supp. 60–307(a)(5)(A) and K.S.A.2014 Supp. 60–309(a) controlled the outcome of this case. We agree. As a result, the trial court properly dismissed Kasandra's motion to set aside the journal entry of final settlement because her motion was filed more than 2 years after the journal entry of final settlement was filed.
As an alternative ground for affirmance, Harold contends that “K . S.A. 60–260(b)(6) should not be used [when] a specific statute sets forth time limits within which [an] action must be taken....” We find merit in Harold's contention. K.S.A.2014 Supp. 60–260(b) and (c) state in relevant part:
“(b) On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under subsection (b) of K.S.A. 60–259, and amendments thereto;
(3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or misconduct by an opposing party;
(6) any other reason that justifies relief.
“(c) ... (1) A motion under subsection (b) must be made within a reasonable time, and for reasons under paragraphs (b)(1), (2) and (3) no more than one year after the entry of the judgment or order, or the date of the proceeding.”
But, relief cannot be granted under K.S.A.2014 Supp. 60–260(b)(6) to break out from the time restrictions listed in (b)(1) to (b)(3). In re Marriage of Leedy, 279 Kan. at 323; In re Marriage of Reinhardt, 38 Kan.App.2d 60, 62, 161 P.3d 235 (2007); Wilson v. Wilson, 16 Kan.App.2d 651, 659, 827 P.2d 788, rev. denied 250 Kan. 808 (1992). Harold maintains that Kasandra's argument based on K.S.A.2014 Supp. 60–260(b)(6) is merely an attempt to get around the 1 -year time bar, which should not be allowed. We agree.
Kasandra does not argue that she should be granted relief against this judgment because of her mistake, inadvertence, surprise, or excusable neglect. For example, excusable neglect is the ground often asserted when a defendant moves to set aside a default judgment. Kasandra is not asking for relief from a default judgment. Moreover, Kasandra is not asking for relief against this judgment based on intrinsic or extrinsic fraud. For instance, intrinsic fraud is that which occurred during the course of the trial. Perjury and false evidence would be examples of intrinsic fraud. Extrinsic fraud, on the other hand, is fraud which prevents a party from having his or her day in court. As stated earlier, Kasandra has not asserted intrinsic or extrinsic fraud as a ground for setting aside the journal entry of final settlement.
Nevertheless, newly discovered evidence is also a ground for setting aside a judgment and granting a new trial. K.S.A.2014 Supp. 60–260(b)(2). Moreover, it would seem that Kasandra's asserted ground for relief against the journal entry of final settlement is based on newly discovered evidence. For evidence to be newly discovered, it must have come to light after the trial was over.
In her brief, Kasandra explains when and how she discovered the fact of Frank's death. Under the statement of facts of her brief, Kasandra states the following:
“4. On July 13, 2009, the Journal Entry of Final Settlement was filed with the Court.
“5. Kassandra discovered that her father Decedent died in August, 2011.
“6. On November 7, 2011, the Motion to Set Aside Judgment was filed. This Motion was filed approximately four months after Kassandra discovered that her father Decedent died.” (Emphasis added.)
Next, in the body of her brief, Kasandra describes how she Googled Frank's name on the internet and discovered that he had died:
“Kassandra had no relationship with the Decedent and discovered his death when she googled his name on the Internet and found his obituary. Kassandra had no notice of the death of her father until she googled his name on the Internet and had no idea that he had died.”
In this case, the only evidence that has come to light after the journal entry of final settlement is Kasandra's discovery of Frank's death.
Here, Kasandra, in an attempt to escape the time limitation applicable to K.S.A.2014 Supp. 60–260(b)(2) has sought to bring herself within the dragnet provision of K.S.A.2014 Supp. 60–260(b)(6), which has no specific time requirements. Nevertheless, Kasandra's newly discovered evidence ground for relief did not bring her motion within the scope of K.S.A.2014 Supp. 60–260(b)(6). Moreover, we need not concern ourselves with our abuse of discretion standard because the factors necessary to bring Kasandra within K.S.A.2014 Supp. 60–260(b)(6) and the exercise of any discretion are absent.
“We may affirm the trial court on grounds different than those stated by the trial court.” Huffmier v. Hamilton, 30 Kan.App.2d 1163, 1171, 57 P.3d 819 (2002). As a result; we determine that the trial court's dismissal of Kasandra's motion to set aside the journal entry of final settlement was proper and is affirmed.
Affirmed.