Marinhagen v. Boster, Inc.

• Decision Date: 30 October 1992
• Docket Number: No. 66718,66718
• Citation: 840 P.2d 534,17 Kan.App.2d 532
• Parties: Everett MARINHAGEN and Shirley Marinhagen, Appellants, v. BOSTER, INC., Charles D. Boster, and Nita Boster, Appellees.
• Court: Kansas Court of Appeals

Page 534

840 P.2d 534

17 Kan.App.2d 532

Everett MARINHAGEN and Shirley Marinhagen, Appellants, v. BOSTER, INC., Charles D. Boster, and Nita Boster, Appellees.

No. 66718.

Court of Appeals of Kansas.

Oct. 30, 1992.

Review Denied Feb. 4, 1993.

Syllabus by the Court

1. When a trial court mails an entry of judgment to the parties, in compliance with K.S.A. 60-258 and Rule 134 (1991 Kan.Ct.R.Annot. 112), the time for filing post-judgment motions under K.S.A. 60-259(f) or an appeal of the judgment is extended three days as provided in K.S.A. 1991 Supp. 60-206(e).

2. When both the three-day mail rule in K.S.A. 1991 Supp. 60-206(e) and the rule in K.S.A. 1991 Supp. 60-206(a) excluding Saturdays, Sundays, and legal holidays for time periods less than 10 days apply, the court must count the days applying K.S.A. 1991 Supp. 60-206(a), then add three additional calendar days to accommodate K.S.A. 1991 Supp. 60-206(e).

3. In ruling on a summary judgment motion, the trial court must resolve all facts and inferences from the evidence in favor of the party against whom the motion is filed. On appeal, an appellate court must apply the same rule and if it finds that reasonable minds could differ as to the findings of fact, then summary judgment must be denied.

4. Kansas recognizes that an employee injured on the job has a right of action in tort for retaliatory discharge if he or she is discharged in retaliation for exercising of rights and remedies granted under the workers compensation laws.

5. When a married couple both work for the same employer, and one exercises his or her rights under the Workers Compensation Act following an on-the-job injury, the employer may not retaliate against the non-injured spouse by terminating him or her from employment any more than the employer can retaliate against the injured spouse. To allow such would frustrate the purpose of our opinion in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), to protect employees by allowing them to freely exercise their rights under the Act.

David O. Alegria, of McCullough, Wareheim & LaBunker, P.A., Topeka, for appellants.

Justice B. King, of Fisher, Patterson, Sayler & Smith, Topeka, for appellees.

Before REES, P.J., BRAZIL, J., and JOHN J. BUKATY, Jr., District Judge, assigned.

JOHN J. BUKATY, Jr., District Judge, assigned:

Plaintiffs Everett Marinhagen and Shirley Marinhagen appeal from the summary judgment entered against them and in favor of defendants Boster, Inc., Charles D. Boster, and Nita Boster.

We first consider the issue of whether plaintiffs filed the appeal out of time, thus depriving us of jurisdiction.

On March 12, 1991, the summary judgment order from which this appeal is taken was entered and served on counsel by mail in compliance with K.S.A. 60-258 and Rule 134 (1991 Kan.Ct.R.Annot. 112). The Marinhagens' notice of appeal was filed more than 30 calendar days thereafter, on May 30, 1991.

Although K.S.A. 1991 Supp. 60-2103(a) provides that the time within which an appeal may be taken shall be 30 days from the entry of judgment, it also provides that the running of the time for appeal is terminated by a timely K.S.A. 60-259(f) motion to alter or amend the judgment and that where the post-judgment motion to alter or amend has been timely filed, the time for appeal commences to run and is to be computed from the entry of the order granting or denying the motion to alter or amend.

On March 27, 1991, following the entry and service of the summary judgment order on March 12, the Marinhagens mailed to defense counsel a motion for reconsideration (motion to alter or amend). The motion was filed the next day, March 28. It was denied May 6.

Even though the Marinhagens' notice of appeal was filed more than 30 days after the entry of judgment, it was filed less than 30 days after the May 6 denial of the Marinhagens' motion.

This takes us to the pivotal question whether the motion to alter or amend was timely filed.

K.S.A. 60-259(f) requires that a motion to alter or amend be served and filed not later than 10 days after entry of the judgment. At first blush, it would seem that the Marinhagens' motion to alter or amend was not timely filed inasmuch as its filing on March 28 was more than 10 days after the March 12 entry of judgment. However, the question is not so easily answered.

The statutory requirements and directions appear in these texts:

K.S.A. 1991 Supp. 60-2103:

"(a) ... [T]he time within which an appeal may be taken shall be 30 days from the entry of the judgment.... The running of the time for appeal is terminated by a timely motion made pursuant to [K.S.A. 60-259] ... and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of [an order] made upon a timely motion ... [g]ranting or denying a motion under ... K.S.A. 60-259 ... to alter or amend the judgment...."

K.S.A. 60-259:

"(f) ... A motion to alter or amend the judgment shall be served and filed not later than ten (10) days after entry of the judgment." K.S.A. 1991 Supp. 60-206(a):

"In computing any period of time prescribed or allowed by this chapter, ... the day of the act [or] event ... from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation."

K.S.A. 1991 Supp. 60-206(e):

"Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period."

The entry of the summary judgment and the service of the summary judgment order both occurred on March 12. In this case, therefore, the time of the triggering events under the foregoing statutes, namely, the entry of judgment (under K.S.A. 1991 Supp. 60-2103[a] and K.S.A. 60-259[f] ) and service of the notice (under K.S.A. 1991 Supp. 60-206[e], were the same.

Our Supreme Court has held:

"[W]here notice of the entry of judgment is mailed in compliance with K.S.A. 60-258 and Rule 134, the time for filing post-judgment motions or taking an appeal starts to run when the notice is mailed, and the three-day extension as provided in K.S.A. 60-206(e) applies. Since plaintiff's post-judgment motion was filed within 13 days [13 calendar days from September 2, 1986, to September 15, 1986] of the trial court's decision, the post-judgment motion effectively terminated the running of the time of the plaintiff to file an appeal. This court therefore has jurisdiction to address the present appeal...." Danes v. St. David's Episcopal Church, 242 Kan. 822, 827, 752 P.2d 653 (1988).

Having held as it did in regard to the time within which a post-judgment motion to alter or amend must be filed, on the facts before it there was no need for the Danes court to further consider how, if at all, the less-than-11 day rule of K.S.A. 1991 Supp. 60-206(a) and the 3-day rule of K.S.A. 1991 Supp. 60-206(e) would interact and operate.

K.S.A. 1991 Supp. 60-206(a) and K.S.A. 1991 Supp. 60-206(e) are mirror images of Fed.R.Civ.Proc. 6(a) and 6(e). Accordingly, federal case authority concerning the interplay and operative effect of these sections is uniquely persuasive and recapitulated in National Sav. Bank of Albany v. Jefferson Bank, 127 F.R.D. 218, 220-22 (S.D.Fla.1989), where the court said:

"National's second argument is that ... Jefferson has failed to satisfy the 10-day requirement.... Specifically, National argues that Jefferson had only 13 calendar days in which to respond (10 days plus 3 mailing days), reasoning that, '[b]ecause Jefferson had more than 11 days, the intervening weekends and holidays were not excludable.' ... Unfortunately, this misconception--that 3 mailing days are added to an originally prescribed period of less than 11 days for computation purposes--is a recurring one....

"Rule 6(a) provides that '[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.' Rule 6(e) provides that 3 days shall be added to the prescribed period whenever a party is served by mail. Further, if the last day of the time period, as computed, falls on a weekend or legal holiday, a party has until the next non-holiday weekday to act under Rule (6)(a).

"National relies primarily on Pagan v. Bowen, 113 F.R.D. 667 (S.D.Fla.1987), for the proposition that Rule 6(e)'s 3 mailing days should be added to the 10-day prescribed period resulting in a total of 13 days, which would then remove the total period from the operation of Rule 6(a)'s less-than-eleven day provision. This Court disagrees with Pagan's interpretation of the interaction between Rule 6(a) and Rule 6(e).

"... Rule 6(e)'s 3-day period should not be added to an original period of less than 11 days for computation purposes.

"Professors Wright and Miller now endorse computing the time periods of 6(a) and 6(e) separately. In the 1987 edition of their treatise, the authors note three possible alternatives with respect to integrating Rules 6(a) and 6(e). First, the 3 days can be added to the original period.... Second, one can compute two separate time spans of 10 and 3 days excluding weekends and holidays from both.... Finally, one may compute the 10-day period, excluding weekends and holidays, and add separately 3 days for mailing. The authors find this alternative most preferable, 'because of its fidelity to the purposes of Rule 6(a) and 6(e), and because it avoids creating undesirable incentives for parties to...