Garcia v. Ball
| Decision Date | 31 December 2015 |
| Docket Number | No. 108,817.,108,817. |
| Citation | 363 P.3d 399 |
| Parties | George Michael GARCIA, Appellant, v. Charles BALL, Appellee. |
| Court | Kansas Supreme Court |
John Arthur Boyd, of Green, Finch & Covington, Chtd., of Ottawa, argued the cause and was on the brief for appellant.
John Ivan, of Shawnee Mission, argued the cause, and Bill L. Klapper, of Kansas City, was on the brief for appellee.
George Michael Garcia retained criminal defense attorney, Charles Ball, to represent him in a probation revocation proceeding. The district court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which error ultimately led to Garcia serving more time in prison than his original sentence.
Garcia sued Ball, alleging legal malpractice. When Ball failed to answer the petition, Garcia notified Ball of the amount of claimed damages and obtained a default judgment. The district court subsequently set aside the default judgment but ultimately dismissed the lawsuit because Garcia had not established his innocence under the exoneration rule, as set forth in Canaan v. Bartee, 276 Kan. 116, 123, 72 P.3d 911, cert. denied 540 U.S. 1090, 124 S.Ct. 962, 157 L.Ed.2d 795 (2003).
Garcia appealed, and the Court of Appeals reversed, finding that the district court had erred in setting aside the default judgment for excusable neglect under K.S.A. 60–260(b)(1). Garcia v. Ball, 50 Kan.App.2d 197, 205, 323 P.3d 872 (2014). Ball petitioned this court for review, arguing that the district court properly set aside the default judgment pursuant to K.S.A. 60–260(b)(6). Garcia filed a cross-petition, asking this court to decide whether his legal malpractice claim was barred by either the exoneration rule or the statute of limitations.
We reverse the Court of Appeals, finding that the district court did not abuse its discretion in setting aside the default judgment pursuant to K.S.A. 60–260(b)(6). But we also reverse the district court's dismissal of the lawsuit, based on our recent holding in Mashaney v. Board of Indigents' Defense Services, 302 Kan. ––––, 355 P.3d 667 (2015), with respect to the exoneration rule and the commencement of the statute of limitations. Accordingly, we remand to the district court to resume the proceedings.
Garcia retained Ball to represent him on a probation revocation matter in Johnson County Criminal Case No. 06CR1425. Relying on Ball's advice, Garcia stipulated that he had violated the terms of his probation. The district court accepted the stipulation, revoked Garcia's probation, and ordered him to serve his originally imposed prison sentence of 9 months.
The Journal Entry of Probation Revocation Hearing, which was approved by Ball, ordered Garcia to serve 12 months of postrelease supervision, following the 9–month original prison term. But pursuant to K.S.A. 22–3716(e), "an offender whose non-prison sanction is revoked and a term of imprisonment imposed ... shall not serve a period of postrelease supervision upon the completion of the prison portion of that sentence." Within 2 weeks of the probation revocation hearing, the Kansas Department of Corrections (KDOC) sent a letter to the district court, with a copy to Ball, pointing out that it was error for the court to order postrelease supervision in a probation revocation proceeding. Nevertheless, KDOC correctly indicated that it would comply with the district court's order, until notified differently. Inexplicably, nothing was done at that time to correct the probation revocation journal entry.
After his release from prison and placement on postrelease supervision, Garcia was charged with burglary in Johnson County Case No. 09CR1939. Ball represented Garcia in the new case and advised him to plead guilty, whereupon the court sentenced Garcia to 13 months' imprisonment in the new case. Additionally, because Garcia committed the burglary while on postrelease supervision in the probation revocation case, he was subject to a special sentencing rule that required him to serve the remaining 9–month portion of his postrelease supervision term in prison. See K.A.R. 44–6–115c(c) ().
Garcia alleged that after learning of the postrelease supervision error, he contacted Ball on numerous occasions to inform him of the mistake. After Ball undertook no action to correct the error, Garcia filed his own pro se motion to correct an illegal sentence on June 7, 2010. A Journal Entry Nunc Pro Tunc, correcting the postrelease supervision error in the probation revocation case, was filed on February 4, 2011, prompting Garcia's release from prison a few days later.
On May 5, 2011, Garcia filed a petition for legal malpractice against Ball alleging that, but for Ball's negligence, he would have been eligible for conditional release in the subsequent burglary case as early as June 15, 2010, and would have served his maximum sentence in that case by August 31, 2010, i.e., some 5 months earlier than his actual release. Garcia alleged that as a consequence of his unlawful imprisonment, he suffered damages in excess of $75,000.
Ball was served with the petition on May 17, 2011, and despite receiving two extensions of time, Ball failed to file a timely answer. Consequently, on July 7, 2011, Garcia filed a demand for judgment of $522,400 in damages, as a prerequisite to seeking default judgment pursuant to K.S.A. 60–254(c). Shortly thereafter, Garcia filed a motion for default judgment that was granted on October 14, 2011.
On November 14, 2011, Ball filed a motion to set aside the default judgment pursuant to K.S.A. 60–260(b)(1) and (b)(6), alleging that (1) he had a meritorious defense; (2) the statute of limitations had run on plaintiff's claims; (3) plaintiff failed to state a claim for which relief could be granted; and (4) there was no factual basis for the amount of the judgment entered against him.
At the hearing on the motion to set aside the default judgment, Ball's attorney acknowledged that Ball had no "good excuse" for failing to answer, but that Ball "simply failed to, neglected to do so." Nevertheless, Ball's attorney argued that the law prefers that matters be heard on their merits and that the default judgment should be set aside based on the meritorious defenses outlined in the motion to set aside the default judgment. Garcia's attorney responded that Ball had completely failed to present any evidence establishing excusable neglect and that the motion to set aside the default judgment should therefore be denied. In granting Ball's motion to set aside the default judgment, the district court explained:
Ball subsequently filed an answer alleging the affirmative defenses of statute of limitations, failure to state a claim, and failure to state facts sufficient to constitute a cause of action upon which relief may be granted. Ball also filed a motion to dismiss, arguing that Garcia's claims were barred by the 2–year statute of limitations for tort actions.
Garcia filed a written response, arguing that pursuant to Canaan, his cause of action for legal malpractice did not exist until he obtained postconviction relief, which occurred when the Order for Journal Entry Nunc Pro Tunc was filed on February 4, 2011. The district court agreed that Canaan was controlling but for a different reason. That case adopted the exoneration rule, requiring that a legal malpractice "plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his [or her] criminal defense attorney." (Emphasis added.) 276 Kan. at 120, 72 P.3d 911. The court opined that the nunc pro tunc order corrected a judicial error, but it did not exonerate Garcia.
Garcia filed a timely appeal, raising three issues: (1) The district court abused its discretion when it granted the motion to set aside the default judgment because Ball "presented no evidence showing his failure to answer was excusable"; (2) the exoneration rule does not require a defendant to establish actual innocence, but instead, only requires postconviction relief, which he obtained through the nunc pro tunc order that set aside his illegal sentence; and (3) the Court of Appeals should decide that the statute of limitations on his legal malpractice claim began to run when the nunc pro tunc order was entered.
The Court of Appeals only addressed the first issue, with a majority of the panel holding that the district court abused its discretion in granting the motion to set aside the default judgment pursuant to K.S.A. 60–260(b)(1) because "Ball provided no reason—let alone evidence—to support his claim of excusable neglect, and the existence of such a reason and some evidence supporting it is a necessary prerequisite to setting aside a judgment based on an excusable-neglect claim." Garcia, 50 Kan.App.2d at 202, 323 P.3d 872. The Court of Appeals declined to decide whether Ball was entitled to relief under K.S.A. 60–260(b)(6), finding that Ball failed to adequately argue the catch-all provision and that the subsection does not apply when a party's claim for relief is covered by K.S.A. 60–260(b)(1). Accordingly, the panel majority reinstated the default judgment against Ball. 50 Kan.App.2d at 204–05, 323 P.3d 872. Judge Pierron's dissent agreed that Ball did not qualify for relief under the...
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