Juhnke v. Hess
| Decision Date | 03 March 1973 |
| Docket Number | No. 46609,46609 |
| Citation | 506 P.2d 1142,211 Kan. 438 |
| Parties | Carl JUHNKE, Appellant, v. Herbert R. HESS, Jr., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action for damages against an attorney, plaintiff's petition alleged he contracted with the attorney for his legal services to file an appeal from the appraisers' award in a condemnation proceeding wherein property of plaintiff was taken, and further that the attorney failed to file the appeal within the period of time prescribed by law. The record on appeal from an order summarily dismissing plaintiff's damage action is examined and it is held: The claim for relief was one for breach of an express unwritten contract governed by the statute of limitations provided in K.S.A. 60-512(1); further, the action was timely commenced.
Lyle P. Baker, of Sowers, Sowers, Carson & Johnston, Wichita, argued the cause, and James P. Johnston, Wichita, was with him on the brief for appellant.
Victor D. Goering, Hutchinson, argued the cause, and Robert J. Gilliland and John F. Hayes, Hutchinson, were with him on the brief for appellee.
HARMAN, Commissioner:
This is an action against an attorney for damages for failure to file a timely appeal upon behalf of his client in a condemnation proceeding. At issue is the timeliness of the filing of the damage action against the attorney.
Plaintiff owned certain land adjacent to the Hutchinson municipal airport, which land became the subject of a condemnation proceeding in which air rights over plaintiff's land were taken by the city. It appears that the appraisers' report in the condemnation action was filed in district court on May 26, 1969, and thereafter no appeal from this award was taken on plaintiff's behalf within the authorized thirty-day period which expired June 26, 1969.
Plaintiff commenced this damage action against the defendant attorney on July 1, 1971. His petition contains these allegations:
'III
'The plaintiff states that he contracted for the legal services of the defendant to act as attorney on his behalf, and to file an appeal from the Court appointed Appraiser's Award in the beforementioned condemnation case; that the defendant first notified the plaintiff on December 1, 1969, that he erred in not filing the appeal of the plaintiff within the 30 day time limit as provided by law.
'IV
'Plaintiff states that as a result of the defendant negligently failing to file an appeal within the time provided by law, that plaintiff was compelled to accept the award of the Court appointed Appraiser for the air rights condemned in the amount of $1,250.00, and that had his appeal been timely filed and properly presented he would have received an award in excess of $50,000.00.
'WHEREFORE, plaintiff prays for judgment over and against the defendant in the amount of $48,750.00, plus costs.'
Defendant filed his motion to dismiss which alleged that the petition pled a cause of action sounding in tort; that the negligence complained of-the failure to file an appeal in the condemnation proceeding within thirty days from the date of the filing of the appraisers' report as provided by law-occurred June 26, 1969, and plaintiff's damage action was barred by the two year statute of limitations pursuant to K.S.A.1972 Supp. 60-513.
The trial court sustained the motion to dismiss and this appeal ensued.
Plaintiff-appellant asserts the trial court erred in ordering dismissal for two reasons (1) The two year statute of limitations for his claim for relief based on tort did not commence to run until December 1, 1969, when he first had notice of his tortious damage, as provided under the last unnumbered paragraph of K.S.A.1972 Supp. 60-513; and (2) his petition also stated a claim for relief based on contract, for breach of which the three year statute of limitations provided by K.S.A. 60-512(1) would not have run at the time he commenced this action. We will consider the latter contention first.
At the outset we note that several states have specific statutes prescribing a period of limitation for various types of professional malpractice actions but Kansas is one among the vast majority which has not, with the result the matter is left for determination under statutes deemed by case law to be appropriate to the particular situation. We have no precise precedent of our own involving breach of duty by an attorney under the particular circumstances alleged here.
As indicated, K.S.A. 60-512(1) provides that actions upon contracts expressed or implied but not in writing shall be brought within three years.
Appellant contends he had an option to assert a claim for relief based either on tort or contract and he points to language in his petition referring to a contractual relation between him and appellee with respect to the appeal. Appellee, on the other hand, asserts appellant's claim is essentially one for malpractice and must be so limited and that this court has treated causes of action based on medical malpractice as sounding in tort to which the two year statute of limitations applies. Cases among many where this rule has been followed include Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955; Becker v. Floersch, 153...
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Jeanes v. Bank of America, N.A.
...Kan. at 113-15, 936 P.2d 714. In contrast, an attorney's conduct was determined to constitute a breach of contract in Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). In Juhnke, the client sued his attorney for failing to file a timely notice of appeal. In the petition, the client allege......
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Schoonover v. State
...to have and exercise the learning and skill ordinarily possessed by members of their profession in the community. Cf. Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). Lawyers, like other professionals, do not guarantee success but only that their conduct will conform to prevailing standa......
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Sylvia v. Wisler
...the district court was correct in its holding and that Mr. Sylvia’s claims most closely resemble the kind found in Juhnke v. Hess , 211 Kan. 438, 506 P.2d 1142 (1973), where the Supreme Court of Kansas held that an attorney’s failure to file an appeal where he had been employed for that ver......
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Garrett v. American Family Mut. Ins. Co.
...disregarded and the petition taken as sounding in contract to which the longer limitations period will be applied. Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142, 1145(1) (1973); Dougherty v. Norlin, 147 Kan. 565, 78 P.2d 65, 67(2) (1938). In the case we consider, the agreement was an express ......
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Legal Malpractice in Kansas: Principles and Examples
...Malpractice § 1.1 (5th ed. 2000). 2. Pittman v. McDowell, Rice & Smith Chtd., 12 Kan. App. 2d 603, 752 P.2d 711 (1988); Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). 3. Mo-Kan Teamsters Pension Fund v. Creason, 669 F. Supp. 1532 (D. Kan. 1987); Pancake House v. Redmond, 239 Kan. 83, S......
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Legal Malpractice in Kansas: Principles and Examples
...Malpractice § 1.1 (5th ed. 2000). 2. Pittman v. McDowell, Rice & Smith Chtd., 12 Kan. App. 2d 603, 752 P.2d 711 (1988); Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). 3. Mo-Kan Teamsters Pension Fund v. Creason, 669 F. Supp. 1532 (D. Kan. 1987); Pancake House v. Redmond, 239 Kan. 83, S......