Anderson v. Scheffler

• Decision Date: 25 March 1988
• Docket Number: No. 60877,60877
• Citation: 752 P.2d 667,242 Kan. 857
• Parties: Jacob ANDERSON, Appellant, v. Randy SCHEFFLER, et al., Appellees.
• Court: Kansas Supreme Court

Page 667

752 P.2d 667

242 Kan. 857

Jacob ANDERSON, Appellant, v. Randy SCHEFFLER, et al., Appellees.

No. 60877.

Supreme Court of Kansas.

March 25, 1988.

Syllabus by the Court

1. This court is without jurisdiction to hear the arguments of a party who was not named either directly or by inference in the notice of appeal.

2. The filing of a timely notice of appeal is jurisdictional, requiring dismissal except where excusable neglect or unique circumstances are found.

3. Appellate review is limited to those rulings which are specified in the notice of appeal.

4. Where a plaintiff is prevented from joining a necessary party in federal court because of loss of diversity, as in this case, the action against that party survives in state court as an exception to the rule in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981).

William H. Pickett, of William H. Pickett, P.C., Kansas City, Mo., argued the cause, and Catherine A. Donnelly, of the same firm, Michael E. Callen, of Callen, Sexton & Shelor, Kansas City, and Nicholas L. Swischer, Nevada, Mo., were with him on the brief, for appellant.

James E. Switzer, of Payne & Jones, Chartered, Overland Park, argued the cause and Bruce Keplinger and Donald R. Whitney, of the same firm, were with him on the brief, for appellees.

HERD, Justice:

This is a personal injury action. Jacob Anderson appeals the granting of summary judgment by the Wyandotte District Court in favor of Randy Scheffler and Industrial Bearing and Transmission Company, Inc.

The relevant facts are: On February 2, 1984, Jacob Anderson, 19, was helping his brother James deliver a load of ground poultry meal to a plant owned and operated by Badger By-Products Company in Wyandotte County, Kansas. Jacob backed his 18-wheel truck to the entrance of an enclosed unloading area so the bottom of the hopper trailer was above the plant's pit in which an auger was located. After insuring that the poultry meal was flowing through the bottom of the trailer into the auger pit, Jacob climbed out of the hopper trailer and walked toward a low wall to hang his jacket. The only way to get across was to walk across the grate over the auger pit. While attempting to do so, Jacob stepped through an opening between the parallel bars and his left foot and leg plunged downward into the auger. His leg was severed above the knee. James heard Jacob's screams and ran over to find Jacob bleeding profusely at the point where his leg had been amputated.

Jacob, a Missouri resident, filed suit against Badger By-Products Company in the district court of Wyandotte County, Kansas, on March 5, 1984. Badger By-Products, as a division of Beatrice Companies, Inc., (Beatrice) a Delaware corporation with its principal place of business in Illinois, successfully petitioned for removal of the case to the United States District Court for the District of Kansas on March 29, 1984. Jacob moved the United States District Court on December 17, 1984, to remand the case to state court, which motion was denied on March 12, 1985.

On May 1, 1985, Jacob moved to amend his petition to join four additional defendants: Beatrice, because it was inherently liable; Conveyors, Inc., a Texas corporation which manufactured the auger; Arthur J. Gallagher & Co., a Delaware corporation which supervised attempts to eliminate hazardous conditions on the premises of Badger By-Products; and finally, Industrial Bearing and Transmission Company, Inc., (IBT) a Missouri corporation which sold and delivered the auger to Badger By-Products. No attempt was made to add IBT employee Randy Scheffler to the federal court action.

On that same date, James, also a Missouri resident, intervened in the federal action to assert claims for infliction of emotional distress. James' claims were subsequently dismissed by summary judgment on May 14, 1986.

On June 13, 1985, Jacob again moved that the case be remanded to state court for the reason that the addition of IBT as a party defendant would destroy diversity jurisdiction. On June 20, 1985, the court granted Jacob's previous motion to add additional defendants, but did not include IBT because the addition of another Missouri corporation would destroy diversity jurisdiction. On July 11, 1985, the court denied Jacob's motion to remand, stating that because it had denied the addition of IBT, diversity jurisdiction was not destroyed and there was thus no reason for a remand to state court.

Jacob made no further effort to remand the case to state court. Instead, he filed a second action in the district court of Wyandotte County on January 31, 1986, naming IBT and Randy Scheffler as defendants. Scheffler had accepted the order from Badger By-Products for the auger involved in the accident; IBT had ordered the auger from Conveyors, Inc. Jacob was joined in his petition by his brother James, who asserted a claim for negligent infliction of emotional distress.

A pretrial order was issued pursuant to a pretrial conference by the United States District Court on April 16, 1986. The order stated it was stipulated that "there is no objection to venue, jurisdiction, or propriety of parties." Neither Jacob nor the named defendants made any allegation of fault on the part of IBT or Scheffler.

On December 11, 1986, Jacob and James entered into a settlement agreement with Conveyors, Inc., for the amount of $24,000. The agreement stated it was "expressly understood and agreed that the undersigned preserve all rights and remedies they may have against all other parties, specifically Randy Scheffler and International Bearing and Transmission Company, Inc., to the Occurrence and do not release said parties by the execution of this Release and Settlement Agreement."

The Wyandotte District Court granted a motion for summary judgment filed by IBT and Scheffler on James' claim for emotional distress on December 29, 1986. James did not file a notice of appeal.

On February 2, 1987, three years to the day from the accident, Jacob entered into a settlement agreement with Beatrice under which he released all parties except IBT and Scheffler. The agreement further stated, "Contemporaneously with the execution of this Settlement agreement, the parties stipulate and agree to dismiss with prejudice case number 84-2142-S entitled Jacob Anderson v. Beatrice Companies, Inc., pending in the United States District Court for the District of Kansas, said dismissal to be at defendant Beatrice's cost." Defendants Scheffler and IBT state in their brief that the case was subsequently dismissed by the court. We find no such order in the record.

The Wyandotte District Court granted the motions of IBT and Scheffler for summary judgment on the claims of Jacob. Jacob filed a notice of appeal on May 13, 1987.

The two preliminary issues on appeal are whether the Wyandotte District Court erred in entering summary judgment for IBT and Scheffler on the issue of negligent infliction of emotional distress and whether we have jurisdiction to consider any appeal from the grant of summary judgment against James Anderson.

James Anderson did not witness the accident which took his brother's leg but was immediately on the scene and saw the gruesome consequences. He suffered shock, emotional pain, and feelings of guilt because of the accident, but no actual physical injury. He had recurring nightmares and visited a doctor for depression. The court correctly granted summary judgment under Kansas' limited recovery rules for negligent infliction of emotional distress. There may be no recovery in Kansas for emotional distress unless that distress results in "physical impact": an actual physical injury to the plaintiff. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983). Generalized physical symptoms of emotional distress such as headaches and insomnia are insufficient to state a cause of action. Hopkins v. State, 237 Kan. 601, 612-13, 702 P.2d 311 (1985). We pursue this issue no further and go directly to the jurisdictional question, which controls.

The notice of appeal from the Wyandotte County District Court was filed May 13, 1987. The heading of the notice reads, "Jacob Anderson, Plaintiff, vs. Randy Scheffler, et al., Defendants." The appeals goes on to state:

"Notice is hereby given that plaintiff Jacob Anderson appeals from the memorandum decision filed April 21, 1987, in this cause, wherein defendant's motion for summary judgment was sustained and plaintiff's case was dismissed on all issues therein...."

The appeal neither names nor refers to James, nor does the April 21, 1987, memorandum decision appealed from affect or refer to James. Jacob Anderson obviously has no standing to assert his brother's appeal.

K.S.A. 60-2103(b) states: "The notice of appeal shall specify the parties taking the appeal." This court is without jurisdiction to hear the arguments of a party who was not named either directly or by inference in the notice of appeal. See Sloan v. Sheridan, 161 Kan. 425, 426-27, 168 P.2d 545 (1946). In Brueck v. Krings, 6 Kan.App.2d 622, 631 P.2d 1233 (1981), the Court of Appeals dismissed an appeal taken on behalf of a class which was not certified. We reversed the Court of Appeals in Brueck v. Krings, 230 Kan. 466, 467, 638 P.2d 904 (1982), and permitted the appeal to proceed, but only as to those persons in the class who were actually named.

We lack jurisdiction here because the dismissal of the emotional distress claim was not appealed within thirty days from the entry of judgment as provided by K.S.A. 60-2103(a). James Anderson's suit was dismissed by motion for summary judgment in the district court of Wyandotte County on December 29, 1986. No appeal followed. Even if we were to consider Jacob Anderson's appeal of May 13, 1987, to include James Anderson's claim, such an appeal is over four months late. The filing of a timely notice of appeal is jurisdictional, requiring dismissal except where excusable...