Crockett v. Medicalodges, Inc., 64442

• Decision Date: 26 October 1990
• Docket Number: No. 64442,64442
• Citation: 247 Kan. 433,799 P.2d 1022
• Parties: Patricia CROCKETT, Individually and as the Administratrix of the Estate of Clemmie Brown, Deceased, Appellant, v. MEDICALODGES, INC., a Kansas Corporation, and Norman G. Marvin, M.D., Appellees.
• Court: Kansas Supreme Court

Page 1022

799 P.2d 1022

247 Kan. 433

Patricia CROCKETT, Individually and as the Administratrix of the Estate of Clemmie Brown, Deceased, Appellant, v. MEDICALODGES, INC., a Kansas Corporation, and Norman G Marvin, M.D., Appellees.

No. 64442.

Supreme Court of Kansas.

Oct. 26, 1990.

Syllabus by the Court

1. When multiple parties and claims are involved, an order of the district court settling one of the claims or dismissing one of the parties is not an appealable order, unless the district court expressly directs the entry of judgment and determines there is no just reason for delay.

2. The record on appeal must affirmatively show the trial court expressly directed entry of judgment and found there is no just reason for delay; the appellate court will not assume the trial court made these findings simply because it used the word "judgment."

3. The "two-dismissal" rule in K.S.A. 60-241(a) applies to cases that have twice voluntarily been dismissed. The "two-dismissal" rule does not apply to involuntary dismissals.

4. A suit for malpractice must be commenced within two years after the injury is reasonably ascertained, but no longer than four years after the injury. The question of when an injury is reasonably ascertainable is a question of fact.

Michael R. McIntosh, and Gregory Bernard King, Kansas City, were on the brief, for appellant.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Ben T. Schmitt, was with him on the brief, for appellee Medicalodges, Inc.

Phillip P. Ashley, of Williamson & Cubbison, Kansas City, argued the cause, and M. Warren McCamish, was with him on the brief, for appellee Norman G. Marvin, M.D.

ABBOTT, Justice:

Patricia Crockett, individually and as the administratrix of the Estate of Clemmie Brown, appeals, contending the trial court erred in granting summary judgment in favor of Medicalodges, Inc., and Norman G. Marvin, M.D.

Clemmie Brown had been a resident of a nursing home owned and operated by Medicalodges. Dr. Marvin provided medical care and treatment for Mrs. Brown while she was a resident of the nursing home.

The trial court granted summary judgment in favor of Medicalodges on the theory that two prior filings were involuntarily dismissed and thus barred by K.S.A. 60-241 and that the claims were barred by the statute of limitations. The trial court subsequently granted summary judgment to Dr. Marvin, finding only that he had last treated Mrs. Brown on August 18, 1983, and that he was first named as a defendant on April 15, 1986.

At the outset, Medicalodges challenges the jurisdiction of this court because plaintiff appealed the summary judgment granted to Medicalodges; the trial court then dismissed that appeal, pursuant to Supreme Court Rule 5.051 (1989 Kan.Ct.R.Annot. 23). Plaintiff did not appeal the dismissal, but did file a second notice of appeal after summary judgment was granted to Dr. Marvin.

When multiple parties and claims are involved, an order of the district court settling one of the claims or dismissing one of the parties is not an appealable final order unless the district court expressly directs the entry of judgment and determines there is no just reason for delay. K.S.A.1989 Supp. 60-254(b); Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976). The record on appeal must affirmatively show that the trial court expressly directed entry of judgment and found there is no just reason for delay; the appellate court will not assume the court made these findings simply because it used the word judgment. City of Salina v. Star B, Inc., 241 Kan. 692, 695-96, 739 P.2d 933 (1987).

In the present case, the trial court first granted summary judgment for Medicalodges. The claim against Dr. Marvin remained. It did not direct entry of judgment or expressly determine that there was no just reason for delay of final judgment when it granted Medicalodges' summary judgment motion. Therefore, the order granting Medicalodges' motion was an interlocutory order and not appealable. Had plaintiff properly docketed the appeal, it would have been dismissed as interlocutory. The proper procedure for plaintiff to follow was to file a notice of appeal after a final judgment had determined all the claims involved in the lawsuit. Plaintiff did this. This court has jurisdiction to review the order granting Medicalodges summary judgment.

Summary judgment is proper only when there are no uncontroverted material facts showing that one party is entitled to judgment. The appellate court must read the record in the light most favorable to the defending party. Patterson v. Brouhard, 246 Kan. 700, 792 P.2d 983 (1990). "The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case." Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988).

By way of background, Medicalodges owned and operated Medicalodge North Health Care Facilities. It entered into a contract with Clemmie Brown, whereby Medicalodges, for consideration, agreed to provide Mrs. Brown with room and board and medical and health care. Plaintiff alleges that Dr. Marvin was acting as the "employee, servant and agent" of Medicalodges. Mrs. Brown was admitted to Medicalodges North on December 17, 1982. On August 23, 1983, that relationship ceased and Mrs. Brown sought lodging and medical care and treatment from a third party. Mrs. Brown died on May 18, 1984.

On August 7, 1985, Mrs. Brown's five daughters, individually and on behalf of Clemmie Brown, deceased, filed suit against Medicalodges, Inc., David Mericer, and Fletcher Bell, alleging breach of contract and that defendants' negligent acts caused Mrs. Brown's death. At the request of Medicalodges, the case was dismissed by the trial court on December 10, 1985, without prejudice, because the named plaintiffs were not the real parties in interest concerning the relief sought.

The five daughters of Clemmie Brown had earlier (March 8, 1985) filed suit against Medicalodges of Kansas City, Inc. After the case in the preceding paragraph was dismissed on December 10, 1985, Medicalodges filed a motion to dismiss the case against Medicalodges of Kansas City, Inc., for failure to prosecute, failure to make discovery, and on grounds of res judicata. The claim of res judicata is based on the later case that was dismissed on December 10, 1985. The trial court dismissed the suit, but did not state the specific reasons for its dismissal. From subsequent pleadings, it is obvious that an incorrect corporation was sued or an incorrect corporate name was used.

On April 15, 1986, Patricia Crockett, as administratrix of Clemmie Brown's estate, filed suit in three counts against Medicalodges, Inc., and Norman G. Marvin, M.D. In Count I, she alleged that the defendants' care of her mother, Clemmie Brown, while she was a resident of the nursing home, caused her death. In Count II, Crockett prayed for damages against both defendants for the personal injuries suffered by Mrs. Brown due to their negligent treatment. In Count III, she alleged that Medicalodges had breached its contract with Mrs. Brown when it discharged her from the facility.

Medicalodges filed a motion to dismiss on August 25, 1986. The motion argued that Crockett, as administratrix, was not the real party in interest because only the heirs at law could bring an action for wrongful death. It also argued all three counts were barred by the statute of limitations and Count III should also be dismissed because it did not state a claim upon which relief could be granted.

On September 9, 1986, Crockett filed a motion for leave of court to amend her pleading to reflect she was suing as Brown's heir at law, not as administratrix of Brown's estate. The amended petition was filed on December 11, 1986. In the amended petition, Crockett remained the sole plaintiff, but sued individually and as administratrix of the estate.

Medicalodges filed a motion for summary judgment on January 26, 1987. It argued that the dismissals of the two previous lawsuits on the same claims were an adjudication on the merits and, as such, the present suit was barred by res judicata.

On March 10, 1987, the trial court issued a memorandum opinion finding that the case against Medicalodges should be dismissed pursuant to K.S.A. 60-241(a), which provides that the second voluntary dismissal of a lawsuit operates as an adjudication upon the merits and, thus, Crockett's third lawsuit was barred. The trial court subsequently granted a motion for summary judgment because the cause of action against Medicalodges and Dr. Marvin was barred by the statute of limitations.

Here, the trial court found that the first two suits filed by Crockett against Medicalodges were involuntarily dismissed. Based on this finding, it dismissed the third lawsuit for the following reason:

"A careful reading of K.S.A. 60-241 indicates that a second voluntary dismissal of a lawsuit operates an adjudication upon the merits and hence, a third filing of the same lawsuit is subject to a dismissal on the bar of res judicata. This is precisely what we have here." (Emphasis supplied.)

Although the trial court referred to the two dismissals as voluntary, it first found in the same journal entry that the dismissals were involuntary. The distinction is important in this case. The "two-dismissal" rule referred to by the trial court appears in K.S.A. 60-241(a). That section deals with voluntary dismissals allowed without order of the court. It provides that a voluntary dismissal is without prejudice "except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim." Neither K.S.A. 60-241(a)(2), which provides for voluntary dismissals that must be...