Fredricks v. Foltz, 48090

• Decision Date: 11 December 1976
• Docket Number: No. 48090,48090
• Citation: 221 Kan. 28,557 P.2d 1252
• Parties: Phillip FREDRICKS et al., Appellants, v. Rex FOLTZ et al., Appellees.
• Court: Kansas Supreme Court

Page 1252

557 P.2d 1252

221 Kan. 28

Phillip FREDRICKS et al., Appellants, v. Rex FOLTZ et al., Appellees.

No. 48090.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. When the district court has fully disposed of the interest of one or more but fewer than all of the multiple parties under K.S.A.1975 Supp. 60-254(b), its order is final only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

2. The Code of Civil Procedure grants the plaintiff he right to select venue where several defendants are properly joined, provided the action is filed in the county of a defendant against whom a substantial claim exists. Whether a substantial claim exists against a defendant is a matter resting within the discretionary power of the trial judge.

Payne Ratner, Jr., of Ratner, Mattox, Ratner, Ratner & Barnes, P. A., Wichita, argued the cause, and Patrick L. Dougherty, Wichita and William L. Roberts, Kansas City, were on the brief for appellants.

David H. Fisher, of Fisher, Patterson, Sayler & Smith, Tpopeka, argued the cause, and James P. Nordstrom, Topeka, was with him on the brief for appellee, Champlin Petroleum Co.

Richard O. Skoog, of Skoog & Latimer, Ottawa, argued the cause for appellee Jack Davis, d/b/a Davis Oil Co. and was on the brief for appellees, Rex Foltz and Jack Davis, d/b/a Davis Oil Co.

Robert L. Roberts, of Gehrt, Roberts & Rieger, Topeka, argued the cause for appellee Rex Foltz, and was on the brief for appellees, Rex Foltz and Jack Davis, d/b/a Davis Oil Co.

SCHROEDER, Justice.

The basic question here presented is whether the plaintiff in a damage action can appeal an order of the trial court dismissing the action as to one of several multiple party defendants on a motion for summary judgment, where such judgment has not completely disposed of the action and the trial court has not made the explicit determination and direction of entry of judgment under K.S.A.1975 Supp. 60-254(b).

Phillip Fredricks and his parents, James L. and Eunce Fredricks (plaintiffs-appellants), filed a damage action for personal injuries to Phillip against three defendants, one being Champlin Petroleum Company (defendant-appellee). The trial court sustained Champlain's motion for summary judgment and held the judgment was a final order but not appealable. On motion of the remaining defendants the trial court then transferred venue to another county. The plaintiffs attack these rulings on appeal.

Champlin Petroleum Company is a foreign corporation authorized to do business in the State of Kansas doing business in Wyandotte County, Kansas. Jack Davis, d/b/a Davis Oil Company (hereafter Davis), is a 'distributor' or 'jobber' of Champlin products and landlord of a service station in Princeton, Kansas. In addition, Davis operated a bulk plant in Ottawa, and owned or leased three other stations. Rex Foltz, twenty years old in 1972, was Davis' tenant and manager of the 'Foltz Champlin Station' in Princeton, Kansas. Rex had no prior experience in running a service station. Phillips Fredricks, seventeen in 1972, worked part time for Rex Foltz.

On June 18, 1972, Phillip Fredricks went to the service station to pick up a car. Richard Foltz, brother of Rex Foltz, drove his 1970 Ford station wagon onto the premises and over an open pit used as a grease rack. He asked Phillip to assist him in changing the oil. While doing so it was discovered that Richard Foltz' gas tank was leaking, and while Phillip was in the pit an explosion and fire occurred injuring Phillip.

On December 26, 1973, Phillip and his parents brought suit against Champlin, Davis and Rex Foltz. The Fredrickses prayed for judgment against the 'defendants, and each of them,' in the sum of $225,000.

Discovery was conducted. On May 23, 1975, Champlin moved for summary judgment contending there was no material issue of fact to be tried and it was entitled to judgment as a matter of law. Davis and Foltz both filed motions to dismiss or in the alternative to change venue to the Franklin County district court. On June 20, 1975, the trial court sustained Champlin's motion for summary judgment. Plaintiffs' counsel requested the district court to allow an interlocutory appeal which was denied.

On August 6, 1975, the plaintiffs submitted suggested journal entry which found Champlin without any right of control over Davis or Foltz. It further found 'there is no just reason to delay entry of final judgment in favor of Champlin Petroleum Company and expressly directs that judgment be so entered, terminating the status of said defendant as a party in this action.' The trial judge signed this journal entry. After a dispute arose as to the proper from of the journal entry, the trial judge sustained Champlin's motion to settle the journal entry and rescinded the journal entry previously submitted by the plaintiffs which had been signed. A new journal entry was signed, and the court said:

'THE COURT: What I am finding is that it is final order but it is not an appealable order until such time as all the issues of the case as between all the parties as originally filed are finally determined.'

The court also transferred venue of the case to Franklin County.

On August 9, 1975, the appellants filed their notice of appeal. Champlin responded in the Supreme Court by filing a motion to dismiss the appeal, which was denied with leave to renew at the hearing on the merits of the appeal.

We examine first the renewed motion of Champlin to dismiss the appeal. K.S.A.1975 Supp. 60-254(b) reads:

'When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other from of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.'

K.S.A.1975 Supp. 60-254(b) is identical to the Federal Rules of Civil Procedure, Rule 54(b). Federal interpretations of Rule 54(b) are persuasive. (Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324.)

By way of caveat we note that Federal Rule 54(b) was amended in 1961 to add multiple parties. (See emphasis in the quoted rule above.) The Kansas rule (60-254(b), supra) was not amended to correspond with the Federal rule by adding multiple parties until 1973. (L.1973, ch. 233, § 1, effective July 1, 1973.) The plaintiffs' cause of action in this case, filed December 26, 1973, is founded upon an accident which occurred on June 18, 1972. But since we are concerned with a procedural rule, the 1973 amendment of 60-254(b) applies. (See, K.S.A. 60-201, as amended; K.S.A. 60-2608; and Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P.2d 782.)

Rule 54(b) re-establishes the ancient federal policy against piecemeal appeals with clarity and precision, with the addition of a discretionary power to afford a remedy in the infrequent harsh case. (10) Wright and Miller, Federal Practice and Procedure, § 2653, p. 24 (1973).) A similar policy against piecemeal appeals which tend to extend and prolong litigation exists in Kansas. (Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637; and Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 548 P.2d 476.)

The polciy against piecemeal appeals is implemented in Kansas by K.S.A. 1975 Supp. 60-254(b). When the district court under this rule has fully disposed of the interest of one or more but fewer than all of the multiple parties, its order lacks finality unless the district court makes an express 'direction for the entry of judgment' and a 'determination that there is no just reason for delay.' The combination of the direction and determination can be referred to as a 'certification' that a particular judgment is ripe for review. (10 Wright and Miller, Federal Practice and Procedure, § 2660, p. 82 (1973); 6 Moore's Federal Practice, para. 54.41(1), p. 711 (2d Ed. 1976); Sanchez v. Breed, 464 F.2d 448 (9th Cir. 1972); Foret v. McDermott, 484 F.2d 992 (5th Cir. 1973); and Bailey v. McCann, 539 F.2d 501 (5th Cir. 1976).)

An express direction for the entry of judgment as to one of several defendants, without an express determination that there is no just reason for delay, is insufficient to support an appeal under Rule 54(b). (Davis v. National Mortgage Corp., 320 F.2d 90 (2d Cir. 1963); Bailey v. Rowan Drilling Company, 441 F.2d 57 (5th Cir. 1971); and 6 Moore's Federal Practice, para. 54.34(2.-2), p. 561 (2d Ed. 1976).)

The appellants contend the court should hear this appeal and cite Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); and Grimm v. Whitney-Fidalgo Seafoods, inc., 61 F.R.D. 310 (S.D.N.Y.1974).) Both cases are distinguishable. Jetco involved two orders against multiple defendants which, considered together, terminated the litigation. Only one order against one of three defendants is involved here.

Grimm involved a motion to alter or amend a judgment. There the district court found the prejudice to be caused to one defendant by delayed formality seemed to outweigh any prejudice to the plaintiff. It found there was no just reason for delay, and a prior implied direction for entry of final judgment in favor of such defendant was expressly confirmed. Here the converse is true. The trial court found that the...