Architectural & Engineered Products Co., Inc. v. Whitehead, 69,721

• Decision Date: 11 March 1994
• Docket Number: No. 69,721,69,721
• Citation: 869 P.2d 766,19 Kan.App.2d 378
• Court: Kansas Court of Appeals
• Parties: ARCHITECTURAL & ENGINEERED PRODUCTS CO., INC., Appellant, v. Thomas J. WHITEHEAD, Lawrence J. Whitehead, Charles E. Whitehead, John Hoffman, and Dave Hoffman d/b/a Hoffman-Whitehead Company, a Partnership, and American Construction & Energy, Inc., Appellees.

Page 766

869 P.2d 766

19 Kan.App.2d 378

ARCHITECTURAL & ENGINEERED PRODUCTS CO., INC., Appellant, v. Thomas J. WHITEHEAD, Lawrence J. Whitehead, Charles E Whitehead, John Hoffman, and Dave Hoffman d/b/a Hoffman-Whitehead Company, a Partnership, and American Construction &amp Energy Inc., Appellees.

No. 69,721.

Court of Appeals of Kansas.

March 11, 1994.

Review Denied April 26, 1994.

Syllabus by the Court

1. K.S.A. 7-104 sets forth the conditions whereby an attorney admitted to practice in another state may appear before the courts of Kansas. The statute requires an out-of-state attorney to associate with counsel admitted to practice in Kansas and to file a motion allowing him to be admitted for limited practice concerning the instant action only.

2. Supreme Court Rule 116 (1993 Kan.Ct.R.Annot. 118) requires a Kansas attorney serving as local counsel for an out-of-state attorney to be actively engaged in the matter or litigation; to sign all pleadings documents, and briefs; and to be present throughout all court or administrative appearances.

3. When an out-of-state attorney associates with local counsel but fails to file a motion for limited practice, to keep local counsel informed and actively involved in the case, and to have a Kansas attorney sign the pleadings, the pleadings are to be treated as unsigned and out-of-state counsel is to be given an opportunity to correct the defect.

4. When an out-of-state attorney violates K.S.A. 7-104 and/or Supreme Court Rule 116 (1993 Kan.Ct.R.Annot. 118) and the district court dismisses the case with prejudice without giving counsel an opportunity to comply, the court is in error.

Betsie R. Czeschin, of Muller & Muller, of Kansas City, MO, for appellant.

Christopher F. Pickering and Greg L. Musil, of Shughart Thomson & Kilroy, P.C., Overland Park, for appellees.

Before BRAZIL, P.J., and LARSON and PIERRON, JJ.

BRAZIL, Presiding Judge:

Architectural & Engineered Products Co., Inc., (A & E) appeals from the district court's order dismissing A & E's causes of action with prejudice because A & E's petition was never signed by an attorney admitted to practice law in Kansas. We reverse and remand.

The causes of action in the instant case were originally filed by A & E on May 12, 1987, and were docketed as 87-C-4533. Upon motion of A & E's attorney at the time, 87-C-4533 was dismissed in 1989. A & E's causes of action were refiled August 14, 1989. The refiled petition reflected as attorneys of record John McNally and Dennis Muller. It also included the attorneys' respective bar numbers; however, it did not indicate whether those bar numbers were for Kansas or Missouri. McNally is an attorney licensed in Kansas, and Muller is licensed in Missouri.

On December 23, 1992, a pretrial conference was held. At the pretrial conference, the court and defendants' counsel learned for the first time that none of the substantive pleadings in the action had been originally signed by McNally as Kansas counsel. On the record, Muller stated (1) he had conformed the signature of McNally on the petition filed on August 14, 1989, and on A & E's unfiled brief in response to defendants' summary judgment motion; (2) he could not identify any pleadings which McNally had signed; (3) McNally had not appeared at any of the proceedings before the district court in the action; and (4) he did not know whether McNally had been informed as to when the pretrial conference was being held. At the conclusion of Muller's statements, defendants' counsel orally moved that all pleadings be stricken for lack of any original signature of a Kansas attorney and that the action be dismissed with prejudice. Muller responded that dismissal with prejudice would deny A & E an opportunity to comply with procedural requirements and would be harsh and very unjust. On December 30, 1992, defendants filed their joint written suggestions in support of their oral motions. On January 8, 1993, defendants filed their joint written motion to strike pleadings and dismiss the action, and, on January 11, 1983, McNally filed a motion for leave to sign pleadings.

A hearing was held on January 28, 1993, and, at the conclusion, the court granted the defendants' joint motion to strike the pleadings and dismissed the action with prejudice. The court applied Supreme Court Rule 116 (1993 Kan.Ct.R.Annot. 118), K.S.A.1993 Supp. 60-211, and Local Rule No. 3 of the Tenth Judicial Circuit. Pursuant to those rules, the district court deemed the petition filed on August 14, 1989, unfiled and stricken as it was not signed. McNally's signature was not effective because it was conformed, and Muller's signature was not effective because he is not a licensed Kansas attorney. The court involuntarily dismissed A & E's action with prejudice pursuant to K.S.A. 60-241(b). The court also denied A & E's motion to seek leave of court for McNally to sign the previously filed pleadings.

A & E contends the district court erred by dismissing A & E's causes of action and denying A & E's request for leave of court to sign the pleadings.

K.S.A. 7-104 sets forth the conditions whereby an attorney admitted to practice in another state may appear before the courts of Kansas. It states:

"Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other administrative tribunal or agency, of this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he or she has associated and personally appearing with him or her in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, upon whom service may be had in all matters connected with said action, hearing or proceeding, with the same effect as if personally made on such foreign attorney, within this state, and such foreign attorney shall thereupon be and become subject to the order of, and amenable to disciplinary action by the courts, agencies or tribunals of this state. No such court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this section, but nothing in this section shall be construed to prohibit any party from appearing before any of said courts, tribunals or agencies, in his or her own proper person and on his or her own behalf." (Emphasis added.)

Not only were the pleadings in this case not signed by a Kansas attorney, but Muller had not filed a motion for limited practice pursuant to K.S.A. 7-104 and Rule 116 allowing him to be...