Henderson v. Hassur, 48357

CourtCourt of Appeals of Kansas
Citation562 P.2d 108,1 Kan.App.2d 103
Docket NumberNo. 48357,48357
PartiesJames D. HENDERSON et al., Appellants, v. Richard M. HASSUR, Appellee.
Decision Date11 March 1977

Syllabus by the Court

1. Appellate jurisdiction is a matter of statute. It is the duty of an appellate court on its own motion to raise the question of its jurisdiction, and when the record discloses a lack of jurisdiction it must dismiss the appeal.

2. A 'final decision,' as that term is used in K.S.A. 60-2102(a)(4) authorizing appeals as of right, is one which determines all the issues in the case and not just part of the issues.

3. In an action involving multiple claims, under K.S.A.60-254(b), an appealable final judgment may be entered upon fewer than all the claims but 'only upon express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'

4. In the absence of the express determination and direction required by K.S.A. 60-254(b), commonly called a 54(b) certificate, a judgment dealing with fewer than all the claims or all the parties in a case remains interlocutory and not appealable as of right.

5. A trial court cannot, by issuing a 54(b) certificate, make an order final and therefore appealable which is not in fact final.

6. A claim asserting only one legal right, even if seeking multiple remedies for that right, states a single claim.

7. An order determining liability and actual damages on a claim, but reserving the question of punitive damages, does not finally dispose of the claim.

8. A claim and a counterclaim may be separate and distinct causes of action so that a 54(b) certificate would be proper upon the disposition of either one. However, where the same operative facts control both the claim and the counterclaim, so that a decision on one necessarily involves a decision on the other, they constitute but a single claim for the purposes of K.S.A. 60-254(b) and an order which does not fully dispose of both is interlocutory.

9. Plaintiffs sued for an accounting under a contract; defendant answered alleging a breach and also counterclaimed for actual and punitive damages based on the same breach. The trial court rendered summary judgment for defendant on plaintiffs' claim, awarded actual damages on defendant's counterclaim, but reserved the issue of punitive damages for future trial. Held: Plaintiffs' and defendant's claims are so interwoven as to constitute but a single claim so that the order which only partially disposed of the claim is interlocutory and not appealable as of right.

Appeal from Shawnee district court, division No. 3; E. NEWTON VICKERS, judge. Opinion filed March 11, 1977. Appeal dismissed.

James L. Grimes, Jr., of Cosgrove, Webb & Oman, Topeka, for appellant, James D. Henderson.

Robert D. Ochs and Charles S. Fisher, Jr., of Fisher, Ralston & Ochs, Topeka, for appellee, Richard M. Hassur.

En Banc.

FOTH, Judge:

This is an appeal from an order granting partial summary judgment. Questioning whether the order was appealable, we requested the parties to brief the issue of our jurisdiction. Briefs were filed and we heard argument on that issue along with argument on the merits. Despite the fact that both parties urge the appealability of the trial court's order, we have concluded we have no jurisdiction and therefore dismiss the appeal.

The action was brought by the appellant, James D. Henderson (a real estate broker), and his joint venturer, Kenneth L. Perry, for an accounting under a contract dated April 4, 1969, with the appellee, Richard M. Hassur. The contract provided that Henderson and Perry would locate potential sites in Mexico for Pizza Hut restaurants to be built, leased and operated under Hassur's franchise. For each site accepted by Hassur they were to be paid $4,000, plus 1% of the gross revenue from the restaurant for the lease term. By January 1, 1970, four sites had been acquired by Hassur, one by purchase and three by lease, for which he paid the plaintiffs the agreed $4,000 commission per site. Plaintiffs sued for an accounting of the restaurants' revenues and the 1% claimed to be due them.

In his amended answer Hassur alleged that, by reason of their breach of contract and their breach of the fiduciary duties owed him, plaintiffs had forfeited all commissions which they otherwise would have earned under the contract. This defense was based on the fact that Henderson had a secret agreement with a Mexican builder and real estate man to share in a $32,000 profit on the one site purchased by Hassur, and to share in the profits from constructing the buildings at all four sites. Hassur also counterclaimed for the $32,000 profit shared by Henderson and his Mexican coventurer, for return of the $16,000 previously paid to Henderson and Perry, and for punitive damages. The counterclaim was based on the same secret agreement that constituted the defense.

Perry filed a cross-claim for indemnity against his coplaintiff Henderson, alleging he had no knowledge of and was not privy to Henderson's dealings with the Mexican entrepreneur.

In ruling on Hassur's and Perry's motions for summary judgment the trial court found no material facts in dispute. It found from Henderson's own testimony that he did have a secret agreement to profit at Hassur's expense; that the agreement covered dealings at all four sites and therefore permeated their entire relationship; and that Perry had no prior knowledge of it. It also found that Henderson and Perry owed a fiduciary duty to their principal, Hassur, which was breached by the secret profit arrangement. It therefore, by Journal Entry filed July 16, 1975, rendered summary judgment as follows:

(a) For the defendant Hassur on the question of liability.

(b) For Hassur against Henderson and Perry for the $32,000 profit realized by Henderson and his Mexican coventurer on the land sale, plus interest.

(c) For Hassur against Henderson and Perry for return of the $16,000 in commissions already paid, plus interest.

(d) For Perry against Henderson for indemnity on both those judgments.

The court expressly reserved for future trial the issue of punitive damages, and all further claims of Perry against Henderson. (These would include not only indemnity for any punitive damages due Hassur, but also a claim for Perry's share of the 1% of gross revenues, apparently lost through Henderson's actions.)

Henderson thereupon took this appeal. It was originally docketed in the Supreme Court, and was transferred to this court pursuant to K.S.A. 1976 Supp. 20-3018(a). Our jurisdiction depends on whether the Supreme Court had jurisdiction in the first instance.

Appellate jurisdiction is a matter of statute. In civil cases, at the time this appeal was taken, the applicable statutes were KLSLAL 60-2101 and 60-2102 (Corrick 1964). The former defined the powers of the Supreme Court when its appellate jurisdiction was properly invoked, the latter prescribed the instances in which that jurisdiction could be invoked. Appeals as of right were covered by 60-2102(a); as applied to this case the only relevant provision was subsection (4), covering a 'final decision in any action.'

That language was considered by our Supreme Court soon after its adoption in Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637, where it was said:

'No attempt was made to define the word 'final' and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. The last sentence of the paragraph quoted above (60-2102(a)(4)) protects the right to have a review of interlocutory or intermediate orders on appeal from the final determination of the case.' (p. 374, 388 P.2d p. 641.)

The order in this case was not 'final' under the Connell definition since the trial court retained jurisdiction of several issues. It was not an order by which 'all the issues in the case are determined.'

It is suggested, however, that the order is 'final' because where multiple claims are involved a final judgment as to less than all such claims was authorized under some circumstances by K.S.A. (then 1974 Supp.) 60-254(b). That section provided:

'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, 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 of 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 form 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.' (Emphasis added.)

Construing this section, in Stock v. Nordhus, 216 Kan. 779, 533 P.2d 1324, the court held that an order under 60-254(b) which dismissed a compulsory counterclaim was not appealable but was interlocutory in nature. Since it arose out of the same transaction as the main claim it could not be finally adjudicated separately from the main claim. And see, Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 548 P.2d 476, where the appeal was dismissed on the court's own motion because summary judgments on liability and indemnity did not dispose of the lawsuit and were therefore interlocutory.

In those cases, as in the case at bar, there was no 'express determination that there is no just reason for delay' nor any 'express direction for the entry of judgment' as authorized by the statute....

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