Hartman v. Stumbo
| Decision Date | 11 December 1965 |
| Docket Number | No. 44229,44229 |
| Citation | 408 P.2d 693,195 Kan. 634 |
| Parties | Dora M. HARTMAN, Appellant, v. Walter G. STUMBO, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rendition of summary judgment under K.S.A. 60-256(c) is proper if the pleadings, depositions and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
2. Where the defendant pleads a statute of limitation and moves for summary judgment and it appears that the action is barred by the appropriate statute of limitation and there is no genuine issue as to any material fact in connection with such statute, then the motion should be granted.
3. In an action for damages based on fraud, or in the alternative upon unjust enrichment, quantum meruit, or some similar theory, wherein the statute of limitation was pleaded in defense thereto, the record is examined and held, the trial court did not err in ruling that as to said defense there was no genuine issue as to any material fact, and in determining that the alleged claims were barred by the applicable statutes of limitation and in rendering summary judgment for defendant as a matter of law.
Fred W. Phelps, Topeka, argued the cause and was on the brief for appellant.
Charles S. Fisher, Jr., Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, William C. Haynes, Peter F. Caldwell, Roscoe E. Long, R. Austin Nothern, and Brock R. Snyder, Topeka, and Harry W. Colmery, W. Kenneth Wilke, and Myron L. Listrom Topeka, of Counsel, were with him on the brief for appellee.
HARMAN, Commissioner.
This appeal involves the application of statutes of limitation to a damage action brought by appellant against appellee, her former attorney.
Appellant's petition, filed August 12, 1964, alleged in substance that on March 23, 1961, she consulted appellee about preparing her will; that appellee falsely and fraudulently represented to her that because her husband, James C. Hartman, had recently died intestate she could not execute a will until her husband's estate was first probated, although appellee knew her husband had died intestate and that all property owned by him and appellant was held in joint tenancy, and appellee allowed appellant to be in litigation in the Probate Court of Shawnee County, Kansas, in case No. 26,414, entitled In the Matter of the Estate of James C. Hartman, Deceased, in which case appellee received a fee of $3,500.00; appellant further alleged she did not discover the fraud of appellee until the month of September, 1962. She claimed recovery of the $3,500.00 as actual damages, plus punitive damages for wrongful conduct, and she concluded her petition with the allegation 'That in the alternative plaintiff is entitled to recover the said $3,500.00 from defendant upon a theory of unjust enrichment, quantum meruit, or some similar theory. * * *'
An answer to this petition was promptly filed, consisting of a general denial and further the defense that the alleged claim was barred by the statute of limitation. Soon thereafter the deposition of appellant was taken at which time certain exhibits including the files in the Probate Court of Shawnee County, Kansas, concerning the estate of appellant's deceased husband were made a part of the deposition. Appellee filed a motion for summary judgment on the basis of the pleadings, consisting of the petition and the answer, and appellant's deposition. At the hearing of this motion by agreement of the parties as affidavit of the appellant filed with the Grievance Committee of the Shawnee County Bar Association was received in evidence. The trial court sustained appellee's motion for summary judgment stating there was no genuine issue as to any material fact in the case and that the claim was barred by the statutes of limitation, K.S.A. 60-512 and 60-513, which action is assigned as error upon this appeal.
From the record it appears that appellant's husband died March 17, 1961. During his lifetime he and appellant had acquired a considerable amount of property consisting of apartment buildings, mutual fund stock, industrial stock, savings and loan accounts and approximately $125,000.00 in United States savings bonds record title to which was claimed to be in the names of appellant and her deceased husband in joint tenancy. Appellant consulted appellee about drawing a will on March 23, 1961, and thereafter appellee commenced proceedings in the Shawnee County Probate Court on the estate of the deceased husband, appellant being appointed administratrix. Appellee engaged accountants and appraisers to prepare tax returns and did other work in connection with the proceedings. On June 12, 1961, pursuant to petition therefor signed by appellant the probate court made the following finding:
'* * * that the attorneys for the Administratrix have rendered valuable services throughout the course of the administration of said estate to date; that such services have been in the best interests of said estate; and that the Administratrix should be authorized and directed to pay the law firm of Stumbo & Irwin the sum of $3,500.00 as a partial allowance on attorneys' fees, as attorneys for the Administratrix * * *,'
and entered its order authorizing and directing payment accordingly. This order has never been modified or set aside or challenged directly in any way. It appears that in July, 1961, appellant had some disagreement with appellee about a discrepancy in a deposit slip appellee gave to her showing receipt by him of rental income. In her deposition she testified that after a meeting on July 10, 1961, concerning the disagreement: She was dissatisfied with appellee and 'never had anything more to do with him.' Appellant further testified she went to Coffeyville, Kansas, where on July 17, 1961, she consulted an attorney about her business affairs. This attorney advised her at that time that there was no necessity for administering the estate of her husband. The date of this meeting is evidenced by a written receipt for money appellant paid this attorney. Then there began a series of letters between appellant's new attorney at Coffeyville and appellee, as a result of which appellee finally prepared a petition for summary closing of the estate and on February 16, 1962, the estate was summarily closed pursuant to K.S.A. 59-1507, with the Coffeyville attorney appearing as appellant's attorney.
Turning now to the legal questions involved in this appeal, the facts set forth in appellant's petition state a cause of action based on alleged fraud, and she reiterates upon argument here that the gravamen of her action is fraud.
K.S.A. 60-513 provides in part:
'The following actions shall be brought within two (2) years:
* * *
* * *
'(3) An action for relief on the ground of fraud, but the cause of action shall not...
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