Johnson v. American Cyanamid Co., 61438

• Decision Date: 03 June 1988
• Docket Number: No. 61438,61438
• Citation: 758 P.2d 206,243 Kan. 291
• Parties: Orletha JOHNSON, Executor of the Estate of Emil Johnson, deceased, Appellant, v. AMERICAN CYANAMID COMPANY and Lederle Laboratories, et al., Appellees.
• Court: Kansas Supreme Court

Page 206

758 P.2d 206

243 Kan. 291

Orletha JOHNSON, Executor of the Estate of Emil Johnson deceased, Appellant, v. AMERICAN CYANAMID COMPANY and Lederle Laboratories, et al., Appellees.

No. 61438.

Supreme Court of Kansas.

June 3, 1988.

Syllabus by the Court

1. In the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if: (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the period for the filing of post-trial motions; (2) the court order purporting to extend the time for the filing of post-trial motions was for no more than ten days and was made and entered prior to the expiration of the official time period for the filing of post-trial motions; (3) the appellant files the post-trial motions within the period apparently judicially extended; and (4) the appellant files a notice of appeal within 30 days after the denial of the post-trial motions.

2. In an action seeking to vacate a judgment pursuant to K.S.A. 60-260(b)(3) based upon alleged fraud upon the appellate court by the prevailing party therein, the record is examined and it is held the district court did not err in denying the motion on the ground the alleged fraud was not material to the appellate court decision.

Jerry W. Hannah of Hamilton & Hannah, Topeka, argued the cause and Gerald L. Michaud of Michaud & Hutton, Wichita, argued the cause and was on the brief, and Marlys A. Marshall, of the same firm, was on the brief, for appellant.

Donald Patterson of Fisher, Patterson, Sayler and Smith, Topeka, argued the cause, and Steve R. Fabert, of the same firm, and Ronald J. Greene of Wilmer, Cutler & Pickering, Washington, D.C., and Carl Willner, of the same firm, were with them on the brief, for appellees.

McFARLAND, Justice:

This is an appeal of the district court's denial of plaintiff's motion to vacate the judgment entered in Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318 (1986). The motion was brought on the ground the appellate judgment was obtained as a result of fraud on the part of counsel for defendant. The district court held that the alleged fraud was not material to the appellate decision.

On May 31, 1984, a Sedgwick County District Court jury returned a ten million dollar verdict in favor of Emil Johnson against American Cyanamid (Cyanamid) in his product liability suit against Cyanamid. Judge Nicholas Klein presided over the case. The precise nature of the claims asserted against Cyanamid, the evidence introduced at trial, and the issues raised in the appeal, as well as our disposition thereof, are thoroughly reported in Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, and need not be repeated herein. The judgment of the district court was reversed on appeal. Thereafter, plaintiff filed an action in the United States District Court for the District of Kansas (No. 86-1943-K) against Cyanamid and the members of this court alleging that our decision in Johnson v. American Cyanamid Co. had violated her civil rights. The federal case was dismissed on April 10, 1987, for lack of subject matter jurisdiction. On May 12, 1987, plaintiff filed a motion in the Sedgwick County District Court seeking to vacate the appellate judgment under K.S.A. 60-260(b)(3) alleging the same had been procured by Cyanamid's fraud upon this court. The motion was heard and denied by Judge Ron Rogg. Plaintiff appeals from the district court's denial of her motion.

In order to understand the allegation of fraud and the district court's denial of the motion to vacate, the procedural events following the return of the jury verdict must be set forth in detail. The trial of this case extended over some two months with the verdict being returned on May 31, 1984. The following day, June 1, 1984, two events occurred. Judge Klein filed an entry of judgment form and plaintiff filed a journal entry of judgment (the latter was not presented to or signed by counsel for Cyanamid as required by Rule 170 [1987 Kan.Ct.R.Annot. 90]. Judge Klein mailed copies of the entry of judgment form to counsel. Counsel for Dr. Branson, a codefendant, received their copy on June 2 and plaintiff's counsel received their copy on June 4. These copies were presumably mailed on June 1, 1984, although this is the subject of certain disputed affidavits to be discussed in detail later. We do not know when counsel for Cyanamid received their copy from the court. On June 4, 1984, Mark Hutton, one of plaintiff's counsel, sent the following letter to counsel for Cyanamid:

"Mr. Larry W. Wall

P.O. Box 997

Wichita, Kansas 67201

"Re: Johnson v. Lederle

"Dear Larry:

"Enclosed is a certified copy of the Journal Entry of Judgment in the above-captioned matter. This Journal Entry was filed on Friday, June 1, 1984. I called your office on June 1 attempting to locate you or Susan Selvidge for your approval of this Journal Entry and I was advised that both of you were out of town and unable to approve the same. Because of the accruing of interest during the pendency of the appeal from the time of the filing of the Journal Entry of Judgment, it was necessary for me to attempt to secure the Judge's signature on the Journal Entry without your approval of same. I advised Judge Klein that I would allow you to make any changes or modifications to the Journal Entry which you deem appropriate.

"Please let me know of any changes or modifications you deem necessary and we will make the appropriate amendments to this Journal Entry.

"Very truly yours,

/s/ Mark B. Hutton

Mark B. Hutton"

On June 11, 1984, the following order was signed by Judge Klein and filed:

"ORDER

"NOW on this 11th day of June, 1984, the defendant American Cyanamid Company is granted ten (10) additional days herein to file its post-trial motions and memorandums of law.

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the defendant American Cyanamid Company, shall have until June 21, 1984, to file its post-trial motions and memorandums of law herein.

"IT is FURTHER ORDERED that a stay of proceedings to enforce the judgment herein is granted during the pendency of the defendant's motion for a new trial or a directed verdict and during the pendency of the defendant's appeal to a ny appellate court unt i I such t ime as the appellate process is fully completed. This Order staying proceedings of execution on the judgment herein shall become effective upon the filing of this order with the Clerk of the District Court of Sedgwick County, Kansas, and shall continue throughout the appeal upon the filing of a supersedeas bond in the form attached hereto and marked Exhibit 'A.'

"IT IS SO ORDERED.

"/s/ Nicholas W. Klein

Nicholas W. Klein, Judge"

The order was approved by Larry Wall and Susan P. Selvidge on behalf of Cyanamid and by Mark B. Hutton on behalf of plaintiff. Cyanamid's motions for a new trial, directed verdict, and for a remittitur were filed on June 21, 1984. Plaintiff's lead counsel, Gerald Michaud, took an extended vacation after the trial and was out of the country during these post-trial activities. Cyanamid's motions were heard and overruled on July 20, 1984. On August 16, 1984, Cyanamid filed its notice of appeal.

On October 11, 1984, codefendant Branson (against whom the jury had found zero fault) filed a motion to dismiss Cyanamid's appeal. The thrust of this motion was that he had not been a party to the 10-day extension of time granted on June 11, 1984, to Cyanamid to file post-trial motions, hence the clock for filing such motions and appealing was not stopped by the entry of the extension order. On October 19, 1984, plaintiff filed a motion to dismiss the appeal which is best described as a "me, too" duplicate of Branson's motion. On October 25, 1984, Cyanamid filed a response to Branson's motion. The response recited the sequence of events following the return of the verdict mentioning Mr. Michaud's extended absence and the fact that the complex motion for new trial required the assistance of Cyanamid's New York corporate counsel. Attached to and made a part of the response was an affidavit of Susan Selvidge dated October 25, 1984, which states:

"AFFIDAVIT

"STATE OF KANSAS )

) SS:

SEDGWICK COUNTY )

"I, Susan Selvidge, one of the attorneys for the appellant American Cyanamid Company/Lederle Laboratories, of lawful age, being first duly sworn upon her oath, deposes and states:

"That I have contacted Judge Nicholas Klein of the Eighteenth Judicial District Court for Sedgwick County, Kansas and he has told me that he has no recollection of sending his Order dated June 1, 1984, entering judgment in Case No. 81 C 2470 to appellant's counsel.

"/s/ Susan P. Selvidge

Susan Selvidge"

The affidavit was properly subscribed and a copy of the response and affidavit were mailed to plaintiff's counsel on October 25, 1984. Cyanamid's response to the plaintiff's motion to dismiss incorporated the response to the Branson motion. This affidavit lies at the heart of plaintiff's present claim of fraud as will be more fully discussed later.

On December 6, 1984, the motions to dismiss filed by plaintiff and Branson were denied by this court with leave to renew at the time of oral argument. They were so renewed and in our opinion, filed May 19, 1986, we stated:

"The first issue before us originally arose on a motion, filed by defendant Branson, to dismiss the appeal (filed prior to the time the appeal was dismissed as to him). This motion was denied with leave to renew and was subsequently renewed by the plaintiff rather than Branson. The issue concerns the time sequences involved in the filing of the notice of appeal and the filing and hearing of certain post-trial motions as well as irregularities in the filing of the journal entry of judgment. Little would be gained in setting forth in this opinion the complex factual and procedural history involved. It is sufficient to state that we have carefully considered...