Danes v. St. David's Episcopal Church
| Decision Date | 25 March 1988 |
| Docket Number | No. 60563,60563 |
| Parties | Robert DANES, Appellant, v. ST. DAVID'S EPISCOPAL CHURCH, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The time for filing postjudgment motions or taking an appeal from a final judgment commences to run when there has been compliance with K.S.A. 60-258 and Supreme Court Rule 134 (1987 Kan.Ct.R.Annot. 72).
2. Where notice of the entry of judgment is mailed in compliance with K.S.A. 60-258 and Rule 134 (1987 Kan.Ct.R.Annot. 72), the time for filing postjudgment motions or taking an appeal starts to run when the notice is mailed, and the three-day extension as provided in K.S.A. 60-206(e) applies.
3. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Following Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, Syl. p 5, 689 P.2d 787 (1984).
Thomas Odell Rost, of Rost, Rost & Griffeth, Topeka, argued the cause, and Glenn H. Griffeth was with him on the brief, for appellant.
Jeanne Gorman Rau, of McAnany, Van Cleave & Phillips, P.A., Kansas City, argued the cause and was on the brief, for appellee.
The plaintiff, Robert Danes, filed the present civil action against the defendant, St. David's Episcopal Church, alleging that he had received personal injuries as a result of the defendant's negligence. Plaintiff appeals from an order of the district court granting summary judgment in favor of the defendant.
Plaintiff is an associate professor of music at Washburn University, Topeka, Kansas, where he has been employed since 1973. In 1975, plaintiff entered into an oral agreement with the defendant, St. David's Episcopal Church, under which he would undertake to provide the services of organist and choirmaster for the defendant. On October 19, 1981, plaintiff and defendant entered into a written agreement governing plaintiff's services for defendant.
On October 26, 1984, plaintiff filed a petition in Shawnee County District Court, giving rise to the present action. Plaintiff alleges in the petition that, while making adjustments to the organ at the church, he was injured when a ladder furnished by defendant collapsed, thereby causing him severe injuries. The defendant filed a motion for summary judgment, contending that plaintiff was an employee of the defendant and not an independent contractor.
The district court granted summary judgment in favor of defendant, ruling that plaintiff was an employee and not an independent contractor and, as such, his exclusive remedy was pursuant to the Workmen's Compensation Act. The memorandum decision was signed by the district court and filed with the court on September 2, 1986. Although the memorandum decision does not indicate the method by which the parties were served with notice of the court's decision, the parties agree that a copy was mailed to counsel for the parties.
On September 15, 1986, plaintiff filed a motion for new trial. The district court overruled the motion on January 15, 1987. Plaintiff filed a notice of appeal with the district court on February 12, 1987.
We must first determine if this court has jurisdiction to hear this case on appeal. The defendant contends we do not due to plaintiff's failure to timely file his motion for new trial. K.S.A. 60-2103(a) requires that civil appeals from a district court must be taken within 30 days of the entry of judgment. The statute also provides that the running of the time limit for an appeal may be terminated by timely filing a motion to alter or amend a judgment, or a motion for new trial. In the present case, although the plaintiff filed a motion for new trial, the motion in substance was a motion to alter and amend the judgment of the district court, and the district court essentially treated the motion as a motion to alter and amend. Under K.S.A. 60-259(f), a motion to alter or amend a judgment must be served and filed not later than 10 days after entry of judgment.
The plaintiff did not file the present appeal within the 30-day time limit required by statute. Whether the time limit contained in K.S.A. 60-2103(a) was tolled by plaintiff's postjudgment motion depends upon the timeliness of that motion. If plaintiff's postjudgment motion, which effectively sought to alter or amend the judgment, was not timely filed, this court is without jurisdiction to hear the present appeal.
Plaintiff argues that his postjudgment motion was timely and relies upon Supreme Court Rule 134 and K.S.A. 60-206. Supreme Court Rule 134 governs the issuance of notice of a district court's rulings:
"Whenever a judge shall make a ruling on a motion or application of any kind and there are parties affected who have appeared in the action but who are not then present, either in person or by their attorneys, the judge shall cause written notice of such ruling to be mailed to the parties or attorneys forthwith." (1987 Kan.Ct.R.Annot. 72).
K.S.A. 60-206(e) provides:
"Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three (3) days shall be added to the prescribed period."
The defendant argues that K.S.A. 60-206(e) does not serve to expand the time in which the plaintiff might file a postjudgment motion. Defendant contends that subsection (e) applies only where a party has the right or the obligation to do some act within a certain time period "after the service of a notice or other paper," while K.S.A. 60-259 requires that motions for new trial and motions to alter or amend a judgment must be made not later than 10 days "after entry of the judgment." Defendant, therefore, argues that K.S.A. 60-206(e) did not give plaintiff an additional three days in which to respond by filing a postjudgment motion and, as a result, his motion was filed out of time. We do not agree.
K.S.A. 60-258 governs the entry of judgment. The statute provides, in part:
While "entry of the judgment" occurs upon the signature and filing of the district court's decision, this court has recognized that the timing requirements for postjudgment motions and for appeals may begin to run not upon the entry of judgment but upon notice of the entry of judgment. In Daniels v. Chaffee, 230 Kan. 32, 630 P.2d 1090 (1981), counsel was not notified of the filing of the journal entry until six months after it was filed by the trial judge. The plaintiff contended that such failure to notify did not extend the appeal time. We held:
230 Kan. at 38, 630 P.2d 1090.
The defendant attempts to distinguish Daniels on the basis that the trial court in Daniels had failed to mail notice of its decision, as required by K.S.A. 60-258, while the clerk of the district court in the present case mailed notice of the court's decision. This is a factual distinction which ignores the policy concerns we expressed in Daniels. We stated: "In each individual case, a rule of reason must be applied to insure that the rights of the parties are protected and that they are not denied their legal rights through forces beyond their control." 230 Kan. at 38, 630 P.2d 1090. Although a literal reading of the statutes involved in Daniels would have required a finding that the post-trial motion was not timely filed, we rejected such a literal interpretation, noting that the code of civil procedure must be construed "to secure the just, speedy, and inexpensive determination of every action or proceeding." 230 Kan. at 37, 630 P.2d 1090; K.S.A. 60-102. In addition, under K.S.A. 60-265, the code "is to be applied with flexibility to see that justice is done in a particular case." 230 Kan. at 37, 630 P.2d 1090. In Daniels, we held that the interests of justice and a liberal interpretation of the statutes required indefinitely expanding the time for the filing of postjudgment motions until the trial court has complied with the provisions of K.S.A. 60-258 and Supreme Court Rule 134, requiring the service of notice to the parties to the action. In the present case, the issue does not involve an indefinite extension of the time in which to file postjudgment motions, but the three-day extension provided by K.S.A. 60-206(e). The same interests of insuring a just resolution of every action which required a liberal interpretation of the statutes in Daniels also requires that K.S.A. 60-206(e) be applied in the present case.
In Atkinson v. U.S.D. No. 383, 235 Kan. 793, 684 P.2d 424 (1984), we...
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