Morris by Rector v. Peterson

• Decision Date: 17 April 1985
• Docket Number: No. 83-2427,83-2427
• Citation: 759 F.2d 809
• Parties: Summer MORRIS, a minor, by her guardian, Leo W. RECTOR, Plaintiff-Appellee, v. Ken M. PETERSON, individually, Morris, Laing, Evans, Brock and Kennedy, Defendants-Appellants. Robert Dunlap, Attorney for Leo W. Rector, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 809

759 F.2d 809

Summer MORRIS, a minor, by her guardian, Leo W. RECTOR, Plaintiff-Appellee, v. Ken M. PETERSON, individually, Morris, Laing, Evans, Brock and Kennedy, Defendants-Appellants.

Robert Dunlap, Attorney for Leo W. Rector, Appellee.

No. 83-2427.

United States Court of Appeals, Tenth Circuit.

April 17, 1985.

Joseph W. Kennedy, Wichita, Kan. (Joseph J. Hlavacek, Wichita, Kan., with him on brief), of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, Kan., for pro se defendants-appellants.

Robert Dunlap, Colorado Springs, Colo., pro se.

Robert Dunlap, Colorado Springs, Colo., for appellee Rector.

Before LOGAN, BREITENSTEIN and SETH, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is an appeal from an order of the District Court for the District of Colorado, 573 F.Supp. 341, granting the motion of the appellees, Rector and Dunlap, to vacate a judgment for lack of jurisdiction entered against them by the District Court for the District of Kansas for attorneys' fees and expenses. We reverse.

In 1979 Margo Whitaker brought suit on behalf of her minor daughter, Summer Morris, in the United States District Court for the District of Kansas for medical malpractice against a Kansas physician alleging that his negligence had caused Summer to be permanently deaf. Plaintiff's attorneys were Ken Peterson and his law firm, Morris, Laing, Evans, Brock & Kennedy of Wichita, Kansas. After discovery and negotiations a settlement was proposed. By its terms Summer would be paid $700.00 a month until she reached the age of 18 and $3,000.00 a month thereafter for the rest of her life. In addition, a $10,000.00 fund would be established for her necessary expenses. Attorneys' fees of $155,000.00 were provided. Whitaker appeared pleased with the settlement but wanted the approval of Bill Morris, Summer's father. Peterson talked with Morris who said that he wanted $48,000.00 to purchase a house. Peterson replied that under no circumstances could the settlement money be used for his personal benefit. On May 22, 1980, Morris telephoned and told Peterson that he wanted $155,000.00 "up front" and that the attorneys' fees of $155,000.00 were not acceptable. Whitaker then talked with Peterson and made the same request. She subsequently withdrew her approval of the settlement.

Fearing that a conflict of interest existed between Summer and her mother, who was living with Morris, the attorneys for the plaintiff, moved the court for the appointment of a guardian ad litem. The court granted the motion and on June 11, 1980 appointed Ralph Baehr, an experienced trial attorney, as Summer's guardian ad litem. On June 26, 1980, the appellee, Rector, was appointed by a Colorado court as conservator of Summer's estate.

Summer, who was then four years of age, was attending a Colorado school for the deaf. The costs were borne by the state and she could remain there until she turned 18.

Rector appeared at a settlement hearing on June 30, 1980, as conservator of the estate of Summer and as attorney for Margo Whitaker, and protested the settlement. He contended that the settlement could not be made over the objections of the parents and Summer's conservator. Baehr also appeared as guardian ad litem and approved the settlement as "fair and reasonable." Testimony was presented by both sides. On July 28, 1980, the court approved the settlement. R.Vol. II, pp. 75-85. On November 10, 1980, the court denied a motion of Whitaker and Rector for reconsideration of the order approving the settlement and approved the award of $155,000.00 of attorneys' fees and expenses. R.Vol. II, pp. 91-92. No appeal was taken from either order.

On June 2, 1981, appellee Dunlap as attorney for appellee Rector filed a suit in the El Paso County Colorado district court against Peterson and his law firm charging legal malpractice in their handling of the Kansas suit brought by Whitaker. Service was obtained in Colorado on appellant Peterson. R.Vol. II, p. 133. The defendants removed the case to the federal district court for the District of Colorado on diversity grounds. R.Vol. II, pp. 124 et seq. The attorneys for the defendants then moved for a change of venue to the United States District Court for the District of Kansas under 28 U.S.C. Sec. 1404(a) on the grounds that the underlying medical malpractice suit was determined by the federal court in Kansas and that the convenience of the witnesses required the transfer. The plaintiff opposed the transfer and a hearing was held by the district court for Colorado on October 23, 1981. App. J-1 to J-31. The court ordered the transfer. No appeal was taken from the order of transfer.

After the transfer, the defendants filed a motion for summary judgment. They based their motion on collateral estoppel by reason of the action of the Kansas court in approving the settlement. Rector did not respond to the motion. The motion was granted on July 21, 1982, and Rector and his attorney were ordered to appear on August 10, 1982 and show cause why attorneys' fees should not be assessed against them. R.Vol. II, pp. 32-38. Rector and Dunlap did not respond nor did they appear for the hearing on August 10, 1982.

On December 20, 1982, the court ordered that attorneys' fees and expenses be assessed against appellee Rector in his individual capacity and against his attorney Dunlap in the amount of $12,709.19. The court found that Rector must have known of the "utter frivolousness" in filing the legal malpractice action against defendants since defendants by requesting a guardian ad litem and presenting the proposed settlement to the court fulfilled their legal duty to Summer. The court also found that any competent counsel would have known of the frivolousness of the suit and declined to bring it. The court found that Rector and Dunlap had acted in bad faith with the motive of harassing the defendants. Id. at 9-12.

On March 28, 1983, defendants filed the certified judgment awarding them fees and costs in the United States District Court for the District of Colorado for enforcement under 28 U.S.C. Sec. 1963. Rector and Dunlap moved to vacate the judgment claiming that under Fed.R.Civ.P. 60(b), the Kansas judgment was void for lack of personal jurisdiction over them. They supported their motion by showing by affidavit that Rector had been in Kansas only in connection with the proposal for settlement of the claim of Summer Morris and that Dunlap had only been in Kansas on unrelated matters.

The Colorado district court sustained the motion, holding that under the Kansas long arm statute, K.S.A. Sec. 60-308(b)(1), the Kansas court did not have jurisdiction over Rector and Dunlap. R.Vol. I, p. 45. Peterson and his firm have appealed from this judgment.

We agree with the trial court that it, as the court in which the judgment is registered, may grant relief under Rule 60(b). Winfield Associates v. Stonecipher, 10 Cir., 429 F.2d 1087, is not in point. There, after a default judgment entered in Illinois had been registered in Kansas, the plaintiff brought an independent action in Kansas attacking the default judgment.

We are convinced that the trial court erred in...