Giles v. Russell, 48435

• Decision Date: 11 July 1977
• Docket Number: No. 48435,48435
• Citation: 222 Kan. 629,567 P.2d 845
• Parties: Elaine Galliart GILES, Appellant, v. Clifford T. RUSSELL, Sr., and Ellen N. Russell, husband and wife, Betty L. Stancil and J. B. Stancil, wife and husband, Vera M. Dunn and Harold D. Dunn, wife and husband, Clifford T. Russell, Jr., and Blanca E. Russell, Judy A. Thompson and Ronnie L. Thompson and Charles D. Russell and his wife, Appellees.
• Court: Kansas Supreme Court

Page 845

567 P.2d 845

222 Kan. 629

Elaine Galliart GILES, Appellant, v. Clifford T. RUSSELL, Sr., and Ellen N. Russell, husband and wife, Betty L. Stancil and J. B. Stancil, wife and husband, Vera M. Dunn and Harold D. Dunn, wife and husband, Clifford

T. Russell, Jr., and Blanca E. Russell, Judy A. Thompson and

Ronnie L. Thompson and Charles D. Russell and his wife, Appellees.

No. 48435.

Supreme Court of Kansas.

July 11, 1977.

Syllabus by the Court

1. Only a timely motion of the kind enumerated in K.S.A. 60-2103(a ) will terminate the running of the time for appeal.

2. A motion filed pursuant to K.S.A. 60-260(b ) for relief from a judgment does not affect the finality of the judgment or suspend its operation, nor does it toll the time for filing a notice of appeal from such judgment.

3. The Supreme Court has no jurisdiction to hear appeals not filed within the time limits set by K.S.A. 60-2103. Absent compliance with the statutory rule, this court has the duty to dismiss the appeal.

4. Appeal from an order denying a motion pursuant to K.S.A. 60-260(b ) brings up for review only the order of denial itself and not the underlying judgment. The scope of appellate review on such an appeal is limited to whether the district court abused its discretion.

5. In a civil appeal from a judgment denying specific performance of an option contract and from an order denying a motion pursuant to K.S.A. 60-260(b ), the record on appeal is examined, and, as more fully set forth in the opinion, it is held: (1) the appeal from the judgment denying specific performance is dismissed because not timely filed, and (2) the district court did not abuse its discretion in denying the motion pursuant to K.S.A. 60-260(b ).

E. Dexter Galloway, Hutchinson, argued the cause and was on the brief for appellant.

Morgan Wright, Larned, argued the cause and was on the brief for appellees.

FATZER, Chief Justice:

This appeal arises from a dispute over a lease with option to purchase agreement entered into by the appellant as lessee and the appellees as lessors. The subject matter of the agreement was approximately one-half section of farm land in Pawnee County, Kansas.

In 1944, the land in question was conveyed to "Clifford T. Russell and Ellen Russell, husband and wife, or the survivor of them for the period of their natural lives, and at the death of the survivor, their then living children . . . ." On June 27, 1972, Mr. and Mrs. Russell, for themselves and as attorneys in fact for their five children and their spouses, executed a "Farm Lease and Option to Purchase" agreement with the appellant. Under the terms of the agreement, the appellant had four months to exercise her option to purchase.

Within the four-month period, the appellant advised the appellees she wished to exercise her option to purchase the land. However, because of title defects, no lending institution would advance the appellant the required purchase price. Consequently, she suggested to the appellees that the sale be made on an installment contract basis. The parties discussed the terms of an installment contract, but no final agreement was reached.

On June 29, 1973, the appellant filed suit to specifically enforce the option contract and compel the lessors to deliver a warranty deed with marketable title, or in the alternative to proceed according to the terms of an installment contract. The appellees counterclaimed for possession of the land contending the option had not been properly exercised and the lease forfeited for nonpayment of rent.

Trial to the court commenced on October 21, 1975. Judgment was entered December 31, 1975. The district court held, inter alia, that the plaintiff had failed to properly exercise her option, that the lease was not extinguished, and that the parties should assume the same standing in relation to the premises as though there had never been an attempted exercise of the option.

The appellant filed a "motion for rehearing" on January 28, 1976. It was heard on February 26, 1976, and denied on March 5, 1976. On April 2, 1976, the appellant filed her notice of appeal from the district court's order denying her motion for rehearing and relief from judgment under K.S.A. 60-260, and from that portion of the judgment of the district court denying specific performance of the option contract.

Before reaching the merits of the appeal from the district court's judgment denying specific performance of the option contract, we must address a preliminary matter. After the appeal was docketed in the Supreme Court, the appellees filed a motion to dismiss. The motion was denied with leave to renew at the hearing on the merits. Appellees renewed their motion to dismiss in their brief and at oral argument.

The appellees contend the appeal from the district court's judgment denying specific performance should be dismissed because the notice of appeal was not timely filed. We agree.

K.S.A. 60-2103(a ) governs the time within which an appeal may be taken "When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b ) of K.S.A. 60-250; or granting or denying a motion under subsection (b ) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259." (Emphasis added.)

K.S.A. 60-2103(a ) parallels Federal Rule of Appellate Procedure 4(a). In 9 Moore's Federal Practice, par. 204.12(1), page 950 (2d ed. 1975), it is said:

"There are two points of critical importance with respect to the effect of post-decisional motions on the time for appeal: (1) only a motion of the kind enumerated in the second paragraph of Rule 4(a) will terminate the running of the time for appeal; and (2) such a motion will terminate the running of the time for appeal only if it is timely made."

By the express terms of K.S.A. 60-2103(a ), only a timely motion pursuant to K.S.A. 60-250(b ), K.S.A. 60-252(b ) or K.S.A. 60-259 will terminate the running of the time for appeal. To be timely, such motions must be made within ten days after the entry of judgment.

Neither the "motion for rehearing" filed by the appellant nor the district court's order denying the motion indicates under what statute the motion was filed. It was filed twenty-eight days after the entry of judgment. The record on appeal indicates that at the hearing on the motion, the appellant adopted the position that her motion was brought under K.S.A. 60-260. Her notice of appeal so states.

K.S.A. 60-260(b ) was patterned after and is virtually identical to Rule 60(b) of the Federal Rules of Civil Procedure. Neagle v. Brooks, 203 Kan. 323, 454 P.2d 544. Rule 60(b) and K.S.A. 60-260(b ) expressly provide that a motion under subsection (b ) does not affect the finality of a judgment or suspend its operation. The Committee Note that accompanied original Rule 60(b) explained that application to the court under subsection (b ) does not extend the time for taking an appeal, as distinguished from a motion for a new trial. See 9 Moore's Federal Practice, par. 204.12(1), page 953 (2d ed. 1975).

Federal courts are in accord that filing a motion for relief from a judgment pursuant to Civil Rule 60(b) does not terminate the running of the time for appeal. Hodgson v. United Mine Workers of America, 153 U.S.App.D.C. 407, 473 F.2d 118 (1972) is illustrative of the federal cases:

". . . (M)otions filed under Rule 60(b) for relief from a judgment or order do not toll the time for filing a notice of appeal from such judgment or order. Nor can Rule 60(b) be used to circumvent time requirements by the simple expedient of vacating a judgment and reinstating it in order to start anew the running of the appeal period." (p. 124)

The Supreme Court has only such appellate jurisdiction as is conferred by statute. This court has no jurisdiction to hear appeals not filed within the time limits set by K.S.A. 60-2103. Absent compliance with the statutory rule, this court has the duty to dismiss the appeal. Brown v. Brown, 218 Kan. 34, 542 P.2d 332. In the instant case, no timely motion as enumerated in K.S.A. 60-2103(a ) was filed to toll the time for filing a notice of appeal, and the notice of appeal was not filed within thirty days of the entry of judgment. We therefore hold that the appeal from the judgment of the district court denying specific performance of the option contract should be and is dismissed.

The appellant also appealed from the denial of her motion pursuant to K.S.A. 60-260(b ). Appeal from an order denying a motion under K.S.A. 60-260(b ) brings up for review only the order of denial itself and not the underlying judgment. Neagle v. Brooks, supra; see 11 Wright & Miller, Federal Practice and Procedure, Civil § 2871 (1973). A motion for relief from a final judgment under K.S.A. 60-260(b ) is addressed to the sound discretion of the district court. The scope of appellate review of the district court's decision is limited to whether the court abused its discretion. Neagle v. Brooks, supra.

The appellant advances...