Frey, Inc. v. City of Wichita, 57701
| Decision Date | 13 March 1986 |
| Docket Number | No. 57701,57701 |
| Citation | 715 P.2d 417,11 Kan.App.2d 116 |
| Parties | FREY, INC., a Kansas Corporation, Appellee/Cross-Appellant, v. The CITY OF WICHITA, Wichita, Kansas; the Board of Commissioners of the City of Wichita, Kansas, et al., Defendants, and The Fifth District Homeowner's Association, an Unincorporated Association, by Robert Summers, an Individual Homeowner, Intervenor-Appellant/Cross-Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In the absence of a statute to the contrary, an unincorporated association is not a legal entity and can neither sue nor be sued in the name of the association.
2. A notice of appeal filed by an unincorporated association who is not a party and who has not sought to intervene is a nullity and does not affect the statutory time in which to file a notice of appeal.
3. A motion to intervene filed thirty days after the time to appeal has expired is not timely filed when notice has been received, before the time to appeal has expired, that one's rights were not being protected.
Robert L. Mitchell, Wichita, for intervenor-appellant/cross-appellee.
Clark R. Nelson, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellee/cross-appellant.
Before ABBOTT, C.J., RICHARD W. WAHL, District Judge, Assigned, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.
This is a zoning appeal by an intervenor from the trial court's decision granting the plaintiff landowner a change in zoning classification from single-family (AA) to mobile home (G) on property owned by plaintiff. The plaintiff cross-appeals, raising the timeliness of the intervention and challenging the jurisdiction of this court to entertain this appeal on its merits.
The dispositive facts are uncontroverted. The trial court entered a final judgment on August 31, 1984. An unsigned notice of appeal was filed on October 1, 1984. The notice of appeal was timely filed, since the 30th day (September 30) was a Sunday.
The notice was filed on behalf of the Fifth District Homeowners Association (Association) by its attorney. The only signature on the notice of appeal is under the certificate of service and it is styled "Amicus Curiae."
Several problems are presented. The Association was never incorporated; therefore, it is not a legal entity and can neither sue nor be sued in the name of the Association. Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P.2d 891 (1965). No argument is made that statutory authority exists which would permit the unincorporated Association to sue or be sued. Neither was the Association ever named a party in the lawsuit prior to its filing the notice of appeal, nor had it at any time attempted to intervene. The trial court, at a later date, permitted the Association to amend its notice of appeal so as to substitute an individual member to proceed on behalf of the Association.
On October 31, 1984, the Association filed a motion to intervene pursuant to K.S.A. 60-224(a)(2). A copy of that motion is not contained in the record on appeal. We do have the transcript of the hearing on the motion to intervene and the trial court's order allowing intervention.
K.S.A. 60-224(a)(2) provides:
"Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
As the statute indicates and the Kansas case law holds, the right to intervene in an action is dependent on the concurrence of three factors: (1) timely application, (2) substantial interest in the subject matter and (3) inadequate representation of the applicant-intervenor's interest. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984); Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (1973). Only the first factor, timely application, is in issue here.
In a position somewhat contrary to the general authorities, Kansas liberally construes the provisions of K.S.A. 60-224(a) in favor of intervention, especially when intervention is necessary to protect some right that would otherwise be unprotected. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603; Campbell American Legion v. Wade, 210 Kan. 537, 502 P.2d 773 (1972). In addition to liberal construction, a motion to intervene is a matter addressed to the court's discretion. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976).
It has been held that intervention is timely after a final decree in a case when necessary to perfect a zoning appeal that otherwise would not be taken. Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir.), cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944); Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261 (1966). Allowing intervention at this late stage of the proceedings can be explained by the meaning given to a "timely application." Under K.S.A. 60-224(a)(2), "timely application" to intervene has no application until such time as adequate representation ceases. And the refusal of an existing party to take an appeal may be inadequate representation in some circumstances. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. at 11, 687 P.2d 603; Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457, Syl. p 3; Moyer v. Board of County Commissioners, 197 Kan. at 27, 415 P.2d 261.
In a case involving post-judgment intervention for the purpose of appealing the denial of class certification, the United States Supreme Court held that a motion to intervene filed 18 days after the entry of judgment was timely. This was obviously within the 30-day period for an appeal. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). It was stressed in McDonald that in all cases involving post-judgment intervention, the critical inquiry is whether in view of all the circumstances, the intervenor acted promptly after the entry of judgment. 432 U.S. at 395-96, 97 S.Ct. at 2470-71. At least implicitly, the Supreme Court hinted that a motion to intervene filed after the time period for taking an appeal would not be timely. One circuit court supports this position. Although the case involved permissive intervention rather than intervention by right, the court held as a matter of law that a motion to intervene is never timely if filed after all rights to appeal have expired. Burney v. City of Pawtucket, 728 F.2d 547, 549 (1st Cir.1984). The First Circuit Court noted that to hold otherwise, a court could postpone finality at any time by adding a new party. See also Tp. of Hanover v. Town of Morristown, 121 N.J. Super. 536, 298 A.2d 89 (1972) ().
In examining the Kansas cases pertaining to post-judgment intervention, the factual circumstances of those cases can be distinguished from the present case. In Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261, our Kansas Supreme Court reversed the trial court's refusal to allow adjoining landowners in a zoning action to intervene so as to appeal and challenge the reasonableness of the district court's decision. The trial court apparently determined intervention was untimely because the motion was made after judgment. In Moyer, the district court's judgment was entered on July 22, 1965. The attorney for the Board of County Commissioners informed the would-be intervenors that no appeal or motion for a new trial was going to be filed by the defendants. On July 27, 1965, the adjoining landowners filed a motion to intervene as defendants so that they could perfect an appeal of the zoning decision. Moyer is not factually on point with the instant case--there the intervention came within the appeal period. Moreover, after having been informed that no appeal was going to be taken, the intervenors were no longer adequately represented and promptly moved to intervene.
Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457, is also distinguishable on its facts. The landowner group which sought to intervene made two attempts. The first attempt came when the defendant City filed a motion for a new trial. Intervention at that point was properly denied because the City was adequately representing the group's interest. After the City's motion for a new trial was overruled, the City filed a timely...
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