242 P.3d 253 (Kan.App. 2010), 102,789, Graham v. Herring

Docket Nº102,789.
Citation242 P.3d 253, 44 Kan.App.2d 1131
Opinion JudgeLEBEN, J.
Party NameRich GRAHAM and Lisa Graham, Appellees, v. Angela HERRING as Administrator for the Estate of Elizabeth A. Jones, Appellant.
AttorneyAmy S. Lemley, Stephen M. Kerwick, and Bradley C. Mirakian, of Foulston Siefkin LLP, of Wichita, for appellant. Gregory C. Graffman, Theodore C. Geisert, and Curtis E. Watkins, of Geisert, Wunsch, Watkins & Graffman, of Kingman, for appellees.
Judge PanelBefore LEBEN, P.J., PIERRON, J., and BUKATY, S.J.
Case DateNovember 24, 2010
CourtCourt of Appeals of Kansas

Page 253

242 P.3d 253 (Kan.App. 2010)

44 Kan.App.2d 1131

Rich GRAHAM and Lisa Graham, Appellees,

v.

Angela HERRING as Administrator for the Estate of Elizabeth A. Jones, Appellant.

No. 102,789.

Court of Appeals of Kansas.

November 24, 2010

Review Granted Oct. 7, 2011.

Page 254

[Copyrighted Material Omitted]

Page 255

Syllabus by the Court

K.S.A. 60-225(a) requires that a motion to substitute a successor party to a lawsuit must be made within a reasonable time after another party to the suit files notice of the death with the court. In determining whether such a motion has been filed within a reasonable time, the court should consider all relevant circumstances, including the diligence of the party seeking substitution, whether any other party would be prejudiced by the delay, and whether the party to be substituted has shown that the action or defense has merit.

Amy S. Lemley, Stephen M. Kerwick, and Bradley C. Mirakian, of Foulston Siefkin LLP, of Wichita, for appellant.

Gregory C. Graffman, Theodore C. Geisert, and Curtis E. Watkins, of Geisert, Wunsch, Watkins & Graffman, of Kingman, for appellees.

Before LEBEN, P.J., PIERRON, J., and BUKATY, S.J.

LEBEN, J.

Before her death, Elizabeth Jones brought several legal claims against Rick and Lisa Graham. After Jones' death, the Grahams filed a notice in court that Jones had died, triggering a requirement that any successor to Jones' claim ask within a reasonable time to be substituted for Jones in the suit. See K.S.A. 60-225(a)(1). When more than 9 months had gone by after Jones' death, the Grahams filed to dismiss the lawsuit.

Angela Herring was appointed the administrator of Jones' estate shortly after the Grahams filed their dismissal motion, and on the day she was appointed, Herring filed a motion to substitute her for Jones. But the district court instead dismissed Jones' claims based on its finding that Herring had not sought to substitute herself for Jones within a reasonable time after her death.

[44 Kan.App.2d 1132] A statute, K.S.A. 60-225, determines how and when a party may be substituted for someone who dies while a suit is pending. On appellate review, we review the interpretation of a statute independently, without any required deference to the district court's reading of it. See Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 6, 166 P.3d 1047 (2007). Determining whether an action has been taken within a reasonable time, however, asks for application of the district court's judgment. Its call will not be disturbed absent an abuse of discretion, meaning that no reasonable person would have agreed with its decision. See Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009) (discretionary decision of district court must be upheld if reasonable persons might agree with it); Livingston v. Estate of Bias, 9 Kan.App.2d 146, 147, 673 P.2d 1197 (1984) (district court has discretion to determine what is a reasonable time under K.S.A. 60-225 [a] ). Even so, if the district court has misinterpreted the statute when making its judgment call, it necessarily abuses its discretion by applying an incorrect legal standard. In re Marriage of Wilson, 43 Kan.App.2d 258, 259, 223 P.3d 815 (2010).

Our case hinges on an understanding of K.S.A. 60-225(a)(1). It provides for the substitution

Page 256

of parties after a death, but it also provides that a party's claims shall be dismissed if the motion for substitution of parties isn't made within a reasonable time:

" If a party dies and the claim is not extinguished, the court must on motion order substitution of the proper party. A motion for substitution may...

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3 practice notes
  • 295 P.3d 1054 (Kan.App. 2013), 107,921, Estate of Emery v. State
    • United States
    • Kansas Court of Appeals of Kansas
    • March 1, 2013
    ...ultimately turned on whether Emery's widow sought to substitute the Estate as a party within a reasonable time. See Graham v. Herring, 44 Kan.App.2d 1131, Syl. ¶ 1, 242 P.3d 253 (2010), rev. granted 293 Kan. ___ (October 7, 2011). According to Graham, there is no bright-line test for determ......
  • 253 P.3d 385 (Kan.App. 2011), 104,526, Larson v. Davis
    • United States
    • Kansas Court of Appeals of Kansas
    • June 17, 2011
    ...she claims are mandatory. And a district court necessarily abuses its discretion if it does not follow the law. Graham v. Herring, 44 Kan.App.2d 1131, 1132, 242 P.3d 253 (2010). We therefore will briefly review those statutory provisions, citing them as they existed at the time of the distr......
  • 305 P.3d 585 (Kan. 2013), 102,789, Graham v. Herring
    • United States
    • Kansas Supreme Court of Kansas
    • July 12, 2013
    ...prejudiced by any delay; and (3) whether the party to be substituted has shown that the action or defense has merit. Graham v. Herring, 44 Kan.App.2d 1131, 1133-34, 242 P.3d 253 We granted the Grahams' petition for review, in part to address an apparent split of authority in the Court of Ap......
3 cases
  • 295 P.3d 1054 (Kan.App. 2013), 107,921, Estate of Emery v. State
    • United States
    • Kansas Court of Appeals of Kansas
    • March 1, 2013
    ...ultimately turned on whether Emery's widow sought to substitute the Estate as a party within a reasonable time. See Graham v. Herring, 44 Kan.App.2d 1131, Syl. ¶ 1, 242 P.3d 253 (2010), rev. granted 293 Kan. ___ (October 7, 2011). According to Graham, there is no bright-line test for determ......
  • 253 P.3d 385 (Kan.App. 2011), 104,526, Larson v. Davis
    • United States
    • Kansas Court of Appeals of Kansas
    • June 17, 2011
    ...she claims are mandatory. And a district court necessarily abuses its discretion if it does not follow the law. Graham v. Herring, 44 Kan.App.2d 1131, 1132, 242 P.3d 253 (2010). We therefore will briefly review those statutory provisions, citing them as they existed at the time of the distr......
  • 305 P.3d 585 (Kan. 2013), 102,789, Graham v. Herring
    • United States
    • Kansas United States State Supreme Court of Kansas
    • July 12, 2013
    ...prejudiced by any delay; and (3) whether the party to be substituted has shown that the action or defense has merit. Graham v. Herring, 44 Kan.App.2d 1131, 1133-34, 242 P.3d 253 We granted the Grahams' petition for review, in part to address an apparent split of authority in the Court of Ap......