Opinion
110,656.
10-03-2014
Byron T. WIECHMAN, Appellee, v. Mark HUDDLESTON, Appellant.
Stanford J. Smith and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellant. Ron D. Beal, of Lenexa, and Robert D. Wiechman, Jr., of Wichita, for appellee.
Stanford J. Smith and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellant.
Ron D. Beal, of Lenexa, and Robert D. Wiechman, Jr., of Wichita, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mark Huddleston appeals from an order of the district court granting Byron T. Wiechman's motion to set aside a prior order dismissing Wiechman's personal injury case against Huddleston.
This court does not have jurisdiction to hear Huddleston's interlocutory appeal of a nonfinal judgment and it is, accordingly, dismissed.
Factual and Procedural Background
On September 27, 2007, Wiechman filed a petition with the district court alleging personal injuries caused by Huddleston stemming from a car accident that occurred on September 28, 2005.
In accordance with local practice, Wiechman notified the district court on September 22, 2008, that the case had been settled and would not proceed. On December 22, 2008, the district court entered an administrative order dismissing the case for lack of prosecution.
Due to an apparent disagreement between Wiechman and Huddleston's insurer regarding application of a lien for Personal Injury Protection (PIP) benefits, the proposed settlement was not completed and Wiechman never received a settlement check from the insurer.
On March 8, 2013, Wiechman filed a motion to set aside the court's order of dismissal and for reinstatement of his personal injury case. Although the record is devoid of a full explanation as to why Wiechman waited so long to file the motion, his counsel acknowledged that “I probably should have filed it earlier but, you know, I thought we could get something worked out.” He asserted his belief that the case could be revived under K.S.A. 60–260(b)(5) or (6). Wiechman also filed a separate contract case seeking enforcement of the settlement agreement.
Huddleston opposed Wiechman's motion, noting that K.S.A. 60–260(b)(1) or (3) applied because either Wiechman was mistaken about the terms of the settlement or the insurance company had misrepresented the settlement terms to him. In either case, Huddleston alleged that Wiechman had failed to file his motion within 1 year of the dismissal, as required by K.S.A. 60–260(c). Huddleston also argued that Wiechman's claims were barred by waiver and laches.
Following oral arguments on the motion, the district court granted Wiechman's motion to set aside the dismissal. It stated on the record:
“I don't think it's fundamentally fair that counsel received a letter from the agent for the insurance carrier that they agreed to settle for an amount included in the release, and then renege on that amount. And I think the plaintiff justifiably relied on that promise to pay and dismissed the case; thought he had settled—or didn't dismiss the case; he informed the Court the case was settled, which we always ask the parties to do so. Good case for an appeal, I guess.”
Huddleston filed a motion to reconsider the reinstatement of Wiechman's case. In his motion and at oral argument, Huddleston attempted to lay out the timeline of events regarding the settlement and dismissal more clearly for the court. He also pointed out that Wiechman had filed suit against the insurers alleging fraud in the procurement of the settlement, which, he argued, implicated the 1–year limitation of K.S.A. 60–260(c) as applicable to K.S.A. 60–260(b)(3). Wiechman countered that K.S.A. 60–260 does not apply to an involuntary administrative dismissal because it was never adjudicated on the merits.
The district court denied Huddleston's motion to reconsider the reinstatement of Wiechman's case. It stated on the record:
“I did check with Judge Fleetwood, since it was an administrative dismissal, to figure out what authority I have as to administrative dismissals. He says I have the authority to do whatever I want, and I based my decision on the facts that were presented at the time. I've listened to additional facts.
“I believe that the plaintiff in this case believes and has presented a prima facia case that there was a settlement. I understand that there's another civil case regarding the enforcement of that agreement.
“Based on my perception of the facts, at this time, and the actions of counsel representing plaintiff, it is my finding that plaintiff believed that there was an agreement, that there was a settlement. He acted—he relied on that, and those documents and those phone conversations, he properly advised the Court that this case was resolved and that it didn't need to remain on the trail [sic ] docket. The case was subsequently, administratively dismissed by the Chief Judge in this county, and I have the authority to set that aside from good cause shown. I find that there's been good cause shown. I am setting aside based on the arguments presented to the court; therefore, I'm going to deny the motion to reconsider, based upon those findings I'll ask the parties to withdraw their document.”
In making its rulings the district court did not specifically cite K.S.A. 60–260(b) or any subsection thereof. The rulings were memorialized in a brief handwritten notation on a form order. Huddleston did not object to any alleged inadequate findings of fact or conclusions of law, but, rather, filed this interlocutory appeal.
Analysis
Wiechman asserts that this court does not have jurisdiction to entertain this appeal because the district court's decision to set aside the dismissal of Wiechman's personal injury case is not a final order as required to obtain appellate jurisdiction under K.S.A.2013 Supp. 60–2102(a).
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. See Harsch v. Miller, 288 Kan 280, 287, 200 P.3d 467 (2009). The appellate courts do not have discretionary power to entertain appeals from all district court orders. See Kansas Medical Mut Ins. Co. v. Svaty, 291 Kan. 597, 609–10, 244 P.3d 642 (2010).
The conditions under which this court may entertain an appeal as a matter of right are set out in K.S.A.2013 Supp. 60–2102(a) which states, in pertinent part:
“Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law.”
A final decision for appeal purposes finally decides and disposes of the entire merits of the controversy, reserving no further questions or directions for further action of the court. Investcorp v. Simpson Investment Co., 277 Kan. 445, 454, 85 P.3d 1140 (2003). An order setting aside a judgment pursuant to K.S .A. 60–260(b) is not a final order and is therefore not immediately appealable. Bates & Son v. Berry Construction Co., 217 Kan. 322, 324–35, 537 P.2d 189 (1975). Thus, the district court's order setting aside the dismissal of Wiechman's case was not a final order, and K.S.A.2013 Supp. 60–2102(a) does not grant this court jurisdiction to hear this appeal.
K.S.A.2013 Supp. 60–2102(c) allows appeals of nonfinal orders under certain circumstances:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 14 days after the entry of the order under such terms and conditions as the supreme court fixes by rule.”
Supreme Court Rule 4.01 sets out the rules and procedures for certifying an issue for interlocutory appeal. (2013 Kan. Ct. R. Annot. 27) Huddleston, however, did not seek or obtain certification of this issue for appeal, despite the district court's observation that this might be a “[g]ood case for an appeal, I guess.”
Huddleston essentially concedes that there is no statutory authority for his appeal. He relies on a “jurisdictional exception” created by the Kansas Supreme Court in Brown v. Fitzpatrick, 224 Kan. 636, 638–39, 585 P.2d 987 (1978).
In Brown, a district court had sua sponte set aside a prior dismissal and reinstated a case without motion or hearing. On appeal, the Supreme Court first had to determine if it had jurisdiction to address the issue of whether the district court had jurisdiction to sua sponte issue a non-final order granting a new trial under K.S.A. 60–260(b). After noting that federal courts apply such a jurisdictional exception to the analogous Fed. R. Civ. Proc. 60(b), the Kansas Supreme Court extended the jurisdictional exception to non-final orders granting relief from judgment under K.S.A. 60–260(b) where the order is challenged on jurisdictional grounds. 224 Kan. at 638–39. The Supreme Court in Brown went on to address the merits of the case and held that the district court did not have jurisdiction to grant K.S.A. 60–260(b) relief without the filing of a motion and an opportunity for the opposing party to be heard. Wiechman argues that since he did file a motion under K.S.A. 60–260(b) and the parties were heard by the district court, the district court had jurisdiction to enter its order setting aside the prior dismissal and the exception relied upon in Brown in inapplicable.
However, while Huddleston's appeal essentially focuses on the merits of the district court ruling, he does couch his arguments in terms alleging that the district court lacked jurisdiction to set aside the dismissal of Wiechman's personal injury case. The Court in Brown noted that “[w]hen such a challenge is made on jurisdictional grounds the question of jurisdiction on appeal is intertwined with the merits.” 224 Kan. at 639. Huddleston's interlocutory appeal would arguably fall within the Brown exception.
However, subsequent case law would indicate that judicially created exceptions may no longer be valid exercises of appellate jurisdiction. The question of continuing viability of the jurisdictional exception is a question of law over which this court has unlimited review. See Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 113, 260 P.3d. 387 (2011).
Park City addressed whether the “unique circumstances” doctrine applied to save an appeal filed out of time. 293 Kan. at 108. The unique circumstances doctrine was created by the United States Supreme Court and adopted by the Kansas Supreme Court in Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). 293 Kan. at 113–16. The doctrine has been used as a matter of equity where a party has filed an untimely appeal because it relied on the district court's actions, which appeared to toll or extend the time for filing an appeal. 293 Kan. at 113–16. The United States Supreme Court reexamined the federal unique circumstances doctrine in Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), and ultimately concluded that it had no authority to create equitable exceptions to statutorily-created jurisdictional requirements, making the unique circumstances doctrine illegitimate. The Park City court followed the logic of Bowles, and decided that “ ‘[b]ecause this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate.’ “ 293 Kan at 120 (quoting Bowles, 551 U.S. at 214 ). It then overruled Schroeder and its progeny to the extent they authorize an exception to a jurisdictional rule. 293 Kan. at 120. Since Park City, the Kansas Supreme Court has upheld the dismissal of an untimely appeal of an appraisers' award in an eminent domain case based on the holding in Park City. Woods v. Unified Government of Wyandotte County/KCK, 294 Kan. 292, 295–99, 275 P.3d 46 (2012). In that case, the district court was the court appealed to, and our Supreme Court held that the district court could not create an equitable exception to the jurisdictional requirement that the notice of appeal had to be filed within 30 days of the appraisers' report. 294 Kan. at 298–99.
Park City dealt with jurisdictional time limits for the filing of a notice of appeal pursuant to K.S.A. 60–2103(a), which states: “When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of judgment....” (Emphasis added.) By comparison, this case involves K.S.A.2013 Supp. 60–2102, which determines what appeals are permitted by law. K.S.A.2013 Supp. 60–2102 creates this court's jurisdiction, and those matters that do not fall under subsection (a) may be heard if jurisdiction is granted through the process statutorily granted to the courts in subsection (c).
The jurisdiction exception for nonfinal orders found in Brown is directly analogous to the “unique circumstances” exception reexamined in Park City. Both are court-made equitable exceptions to the jurisdictional requirements created by the legislature. Because the jurisdiction exception created in Brown circumvents the applicable statute—here, K.S.A.2013 Supp. 60–2102 —it is also illegitimate under the rationale of Park City . Thus, this court does not have jurisdiction under K.S.A.2013 Supp. 60–2102(a)(4) to entertain appeal of a non-final order. Since Huddleston did not take the statutory steps to certify the issue for interlocutory appeal pursuant to K.S.A.2013 Supp. 60–2102(c), his appeal must be, and hereby is dismissed.
Dismissed.