Graham v. Jones

• Citation: 305 P.3d 585,297 Kan. 847
• Decision Date: 12 July 2013
• Docket Number: No. 102,789.,102,789.
• Parties: Rick GRAHAM and Lisa Graham, Appellees, v. Angela HERRING as Administrator for the Estate of Elizabeth A. Jones, Appellant.
• Court: United States State Supreme Court of Kansas

297 Kan. 847

305 P.3d 585

Rick GRAHAM and Lisa Graham, Appellees,

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

No. 102,789.

Supreme Court of Kansas.

July 12, 2013.

Syllabus by the Court

1. K.S.A. 2012 Supp. 60–225(a)(1) provides that, if a motion to substitute a person or entity in a civil action for a deceased party whose claim has survived death is not made within a reasonable time after the service of a statement noting the death, the action by or against the decedent must be dismissed.

2. Ordinarily, the trial court's dismissal of an action by or against a decedent under K.S.A. 2012 Supp. 60–225(a)(1) for failing to move for substitution within a reasonable time is reviewed for an abuse of discretion. But an abuse of discretion necessarily results when the district court applies incorrect legal standards in the exercise of its discretion.

3. In a civil action, the death of a party does not automatically terminate the district court's subject matter jurisdiction. In order to protect rights and avoid time limitations, K.S.A. 60–225(e) permits an attorney representing a party who dies during the pendency of the matter to continue that representation in the name of the original party until there has been a substitution for the deceased party. The district court retains subject matter jurisdiction of an action after the death of a party until it dismisses the action by or against the decedent for a failure to make a motion for substitution within a reasonable time after a properly served suggestion of death.

4. The relevant time period to be analyzed for reasonableness under K.S.A. 2012 Supp. 60–225(a)(1) is the period between the proper service of notice of a party's death and the filing of a motion for substitution. Absent some indicia of deception or bad faith, any delays in the hearing, ruling upon, or effectuating the motion for substitution do not affect the determination of whether the motion for substitution was made within a reasonable time.

[297 Kan. 848]5. The reasonable time within which a motion for substitution must be filed under K.S.A. 2012 Supp. 60–225(a)(1) is not subject to a bright-line, fixed-period rule. In determining whether a motion for substitution for a deceased party has been filed within a reasonable time after the recorded suggestion of death, the court is to apply a totality of circumstances review, analyzing all facts and circumstances that are relevant. The facts and circumstances relevant to the reasonableness of the timing of a substitution motion can include, if applicable, the diligence of the substituting party, the explanation for any delay in filing the motion, and/or the prejudice that would be visited upon another party. Such circumstances do not include the relative merits of the substituting party's claims or defenses.

Stephen M. Kerwick, of Fouston Siefkin LLP, of Wichita, argued the cause, and Amy S. Lemley and Bradley C. Mirakian, of the same firm, were with him on the briefs for appellant.

Gregory C. Graffman, of Geisert, Wunsch, Watkins & Graffman, of Kingman, argued the cause, and Theodore C. Geisert and Curtis E. Watkins, of the same firm, were with him on the briefs for appellees.

The opinion of the court was delivered by JOHNSON, J.:

When she died, Elizabeth Jones was pursuing various counterclaims against Rick and Lisa Graham, including allegations of breach of fiduciary duty, breach of contract, fraud, and conversion. The administratrix of her estate, Angela Herring, sought to be substituted for Jones in the Graham lawsuit. Ultimately, the district court dismissed the action based upon its determination that substitution had been untimely under K.S.A. 60–225(a)(1).

The district court based its ruling in part on the 7–month gap between the filing of the motion for substitution and the hearing on that motion, and in part upon its belief that it was not required to consider prejudice before dismissing an action under K.S.A. 60–225. The Court of Appeals reversed the district court, finding that a determination of whether a motion for substitution has been made within a “reasonable time” requires consideration of the circumstances of each case, including, (1) the diligence of the party seeking substitution; (2) whether any other party would be 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 (2010).

We granted the Grahams' petition for review, in part to address an apparent split of authority in the Court of Appeals regarding whether prejudice has any role in the determination of whether substitution under K.S.A. 2012 Supp. 60–225(a)(1) was made within a reasonable time so as to avoid dismissal of the action. We affirm the Court of Appeals reversal of the district court's dismissal of the action, albeit we provide a different direction on the analysis the district court should employ on remand to determine whether the substitution motion was filed within a reasonable time under K.S.A. 2012 Supp. 60–225(a)(1).

Factual and Procedural Overview

The seeds for the controversy between Jones and the Grahams were sown when Jones developed severe health problems in 2000. At the time, Jones was raising cattle on several hundred acres of land she owned in Harper County, Kansas, and Alfalfa County, Oklahoma. She was friends with Rick Graham and made an oral agreement with him to assist with the cattle operation in exchange for him to share in the proceeds from cattle sales. In 2004, after being diagnosed with end-stage renal failure, Jones appointed Graham as attorney-in-fact to manage all of her property, financial, and personal affairs, together with the power to make health care decisions. Jones also contracted with Graham to deed him all of her agricultural land in exchange for Graham's agreement to assume a small mortgage on the property and to continue the cattle operation,splitting the net proceeds equally between himself and Jones. Jones carved out a retained life estate on a tract containing her residence.

The controversy sprouted when Jones perceived that Graham was not fulfilling his end of the bargain and was taking advantage of her. Jones revoked the power of attorney in 2005 and declared the contract rescinded in March 2006. Graham demanded that Jones vacate all lands outside the boundary of land she had retained for a residence.

The controversy matured on June 1, 2006, when Rick and Lisa Graham filed a petition for a protection from stalking order against Jones and Jones counterclaimed for a protection against stalking order against the Grahams, as well as pursuing causes of action for breach of fiduciary duty, breach of contract, fraud, and conversion.

Jones died on June 27, 2007, while her counterclaims against the Grahams were pending. On July 2, 2007, the Grahams filed a suggestion of death on the record. Apparently, Jones' attorney took no steps to continue to pursue Jones' claims. Angela Herring, Jones' relative, later asserted that Jones' attorney led her to believe that the claims against the Grahams could not be pursued after Jones' death. On April 17, 2008, the Grahams filed a motion to dismiss the lawsuit. That pleading prompted Herring to contact another attorney, Alan C. Goering, who effected the commencement of estate proceedings for Jones; obtained the appointment of Herring as administratrix of the Jones estate; and filed a motion to substitute the estate as the claimant against the Grahams.

Neither the motion to dismiss nor the motion for substitution was set for hearing. Rather, the attorneys proceeded with discovery. Goering advised Herring that the Grahams' attorney, David M. Hall, had indicated that the motion for substitution should resolve the motion to dismiss, albeit Hall would later advise Goering that the Grahams would not consent to the substitution. Goering made several attempts at taking the Grahams' deposition, until July 2008 when the Grahams demanded that Goering withdraw as the estate's attorney because of an alleged conflict of interest. Goering withdrew and Amy S. Lemley of Foulston Siefkin LLP entered her appearance on behalf of Herring.

Lemley continued to attempt to depose the Grahams. When the Grahams refused to appear at a deposition scheduled for November 10, 2008, Lemley moved for sanctions and set the matter for hearing on December 15, 2008. Lemley also asked that the court resolve the motion for substitution immediately prior to the hearing on sanctions.

On November 26, 2008, Hall filed a motion to withdraw as the Grahams' counsel, alleging that his clients' conduct indicated that the attorney/client relationship “has been destroyed” and that his clients' actions had made it “unreasonably difficult for [Hall] to carry out his employment effectively.” At the December 3, 2008, hearing on the withdrawal motion, Hall answered in the affirmative when asked by the district court if he had sent the Grahams a copy of Herring's motion for sanctions and had notified them of the December 15, 2008, hearing date on that and other motions. The district court granted Hall leave to withdraw and recited on the record that “the burden is on [the Grahams] to either request a continuance or have another counsel enter an appearance and request a continuance. Absent that, we'll be here on the 15th for hearing.”

The Grahams did not appear either in person or by counsel at the December 15, 2008, motion hearing. At that hearing, the district court first granted the motion to substitute Jones' estate as the counterclaimant. Then, the district court granted the estate default judgment against the Grahams as a sanction for “plaintiffs' failure to appear at the video depositions, failure to cooperate in discovery, and failure to totally appear today or defend on any of the motions pending before the Court, including their own motion for enlargement of time and...