Rafferty v. Land O'Lakes, Inc.
| Decision Date | 30 October 1998 |
| Docket Number | No. 79944,79944 |
| Citation | 266 Kan. 64,965 P.2d 825 |
| Parties | James D. RAFFERTY and Linda F. Rafferty, Appellants, v. LAND O'LAKES, INC., and Terry L. Dossett, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A party's failure to comply with K.S.A. 7-104 does not deprive the court of jurisdiction. The court is prohibited from entertaining any action or proceeding where a party fails or refuses to comply with the statute after notice.
2. Where a party knows or with reasonable diligence could have discovered the violation of K.S.A. 7-104, failure to timely notify the court constitutes a waiver and precludes the party from raising the issue on appeal. 3. In a personal injury action where the defendants failed to comply with K.S.A. 7-104, the record is examined, and it is held the district court did not err in (1) denying plaintiffs' motion to vacate the verdict and judgment; (2) granting defendants' motion for admission pro hac vice; and (3) allowing the defendants' witness to testify concerning his observation at the scene of the accident.
Kenneth M. Carpenter, of Carpenter, Chartered, Topeka, argued the cause, and Richard Showalter, of the same firm, was with him on the brief for Appellants.
Stephen S. Brown, of Niewald, Waldeck & Brown, Kansas City, MO, argued the cause, and Victoria M. Schroeder, of the same firm, was on the brief for Appellees.
This is a personal injury action that arose from an intersection collision between a vehicle driven by James Rafferty and a truck belonging to Land O'Lakes, Inc. (Land O'Lakes). The case was tried to a jury, which attributed 50% fault to James Rafferty. The Raffertys appealed. This appeal was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
On February 3, 1994, at approximately 6 a.m., two vehicles collided at the intersection of 4th and Monroe Streets in Topeka. The intersection is controlled by traffic signals located on the corners and overhead. It was dark at the time of the accident.
One vehicle, a semi-trailer truck, was driven by Terry Dossett for Land O'Lakes. He exited Interstate 70 at the 4th Street exit. He was going to deliver his load of dairy products to a distributor that was located less than a mile away.
The other vehicle was a pickup truck, which was driven by James Rafferty. He was on his way to work at Santa Fe Railroad, which is on Quincy Street. His shift began at 7 a.m.
In a statement given to the police officer at the scene of the accident, Dossett said:
At trial, Dossett testified that he did not know what color the light was when he entered the intersection of 4th and Monroe. He stopped at the bottom of the exit ramp from Interstate 70, then turned left onto 4th Street, entered the intersection of 4th and Monroe at approximately 15 miles per hour, and collided with Rafferty's truck without ever seeing it. He heard no horn or brakes.
Rafferty testified that the traffic light changed from red to green as he approached the intersection; he "proceeded forward and the next thing [he] knew someone was shaking [him]." He remembered nothing about the collision.
There were two witnesses to the accident. Gary Gorden testified that he was driving behind Rafferty, whose "pickup appeared to have been stopped and then the light had changed and it took off." He estimated Rafferty's speed at 5 to 10 miles per hour and Dossett's speed at "probably forty miles an hour." Leonard Tyler testified that his office was in the building at 4th and Monroe. He was walking toward the intersection at the time of the accident. He saw the semi-trailer truck enter the intersection on a green light. On cross-examination, Raffertys' counsel showed Tyler a photograph of the intersection that had been taken during daylight from where Tyler was walking at the time of the accident. Tyler was asked to observe that the traffic signal had "shields" and "cones" on it. Raffertys' counsel asked, "And you are telling us from your vantage point three feet beyond what's viewed in that photograph that you were able to see that the light was green?" Tyler answered, "Sure; because it reflects, it glows." On redirect examination, he further explained that in the dark he could see the green glow of the traffic signal, even if he would not have been able to tell the color of the light from the same spot during daylight hours.
The Raffertys first argue that the verdict should have been vacated by the district court on the ground that a lawyer not admitted to practice in Kansas represented Land O'Lakes at trial. Interpretation of statutes and rules is a question of law. On appeal, this court's review of a question of law is unlimited. See Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997); Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The Raffertys' petition was filed in Shawnee County District Court on September 13, 1995. The answer was filed on behalf of Land O'Lakes by a Topeka attorney. A letter contained in the record on appeal shows that by February 1996, plaintiffs' attorney was corresponding about discovery matters with Stephen S. Brown of the Kansas City, Missouri, office of the firm Niewald, Waldeck & Brown. The first filing contained in the record on appeal that bears Brown's signature is an entry of appearance, with the file-stamped date of February 7, 1996. Brown signed the entry of appearance, listing a Kansas City, Missouri, address for the firm and a Missouri Bar number for himself. The filing is co-signed by another member of the firm, Michael Sears, who lists a Kansas Supreme Court registration number. In December 1996, a notice was filed substituting Victoria M. Schroeder for Sears as counsel of record for Land O'Lakes. Schroeder has a Kansas Supreme Court registration number. Examination of the record on appeal reveals a number of filings served and letters exchanged between counsel for the Raffertys and counsel for Land O'Lakes from which Brown's status as an attorney admitted to practice in Missouri and not in Kansas was obvious.
Trial was held in April 1997. On May 8, 1997, counsel for the Raffertys filed a motion to vacate the verdict and judgment on the ground that Stephen Brown, who actively participated in the trial, was not admitted to practice law in Kansas and had "never moved the Court, in writing or orally, for admission for the purposes of this case."
In response, Victoria Schroeder filed a "Motion for Admission Pro Hac Vice" for the admission of Stephen S. Brown as the attorney of record for Land O'Lakes. Attached to the motion is the affidavit of Brown, in which he states the following:
"I am a shareholder at Niewald, Waldeck & Brown, P.C., a Missouri Professional Corporation, with its primary office located at 1200 Main, Suite 4100, Kansas City, Missouri 64105 and which is authorized to do business in the State of Kansas with a Kansas business address of 51 Corporate Woods, 9393 W 110th Street, Suite 500, Overland Park, Kansas, 66210."
On July 9, 1997, the district court granted the motion and admitted Brown "to practice before this Court in this particular civil action as long as he has associated himself with members in good standing of the bar of this Court." The district court also denied the Raffertys' motion to vacate the verdict.
K.S.A. 7-104 provides:
Supreme Court Rule 116 (1997 Kan. Ct. R. Annot. 152) provides, in part:
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