Roy v. Young, No. 91,189.

Decision Date25 June 2004
Docket NumberNo. 91,189.
Citation278 Kan. 244,93 P.3d 712
PartiesCORWIN T. ROY, Appellant, v. CANDIS L. YOUNG and KATZ & YOUNG, L.C., Appellees.
CourtKansas Supreme Court

David M. Bryan, of Kansas City, Missouri, argued the cause, and was on the briefs for appellant.

Daniel F. Church, of McAnany, Van Cleave & Phillips, P.A., of Roeland Park, argued the cause, and G. Stuart Englebert, of the same firm, was with him on the brief for appellees.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Corwin Roy sued Candis L. Young and her law firm, Katz & Young, L.C. (collectively Young), alleging legal malpractice and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The district court granted summary judgment in favor of Young on the ground that the legal malpractice and KCPA claims were time barred and denied Roy's motion for partial summary judgment on the question whether Young breached a duty of care. Roy appealed. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c). Roy raises two issues on appeal: (1) Is his legal malpractice claim time barred and (2) did the district court err in denying Roy's motion for partial summary judgment on the issue of Young's duty and breach of duty?

There is no dispute as to the material facts.

In March 1996, Corinthian Mortgage Corporation (Corinthian) filed a petition for foreclosure against Roy in Johnson County District Court. In the mortgage action against Roy, Candis Young filed a timely answer and counterclaim on behalf of Roy. The counterclaim alleged breach of contract and misrepresentation.

On March 10, 1997, Corinthian filed a motion for summary judgment. It was set for hearing on April 10, 1997. Supreme Court Rule 141(b) (2003 Kan. Ct. R. Annot. 191) provides that opposition to a motion for summary judgment is to be filed and served within 21 days from the filing of the motion unless the time is extended by court order. During the 21-day period, Young failed either to file a response or request an extension of time in which to respond. Without requesting leave to file a response out of time, Young sent a letter and a response to Corinthian's motion to the district court chambers on April 9, 1997. In addition to being untimely, the response did not comply with Rule 141(b) in several ways. It did not set forth in separately numbered paragraphs a statement whether each factual contention of movant was controverted or, if controverted, a summary of conflicting testimony or evidence. Nor did it include any references to anything in the record before the court.

On May 8, 1997, a Journal Entry of Judgment and Mortgage Foreclosure was filed against Roy. It stated in part:

"On March 10, 1997, Corinthian filed its Motion for Summary Judgment on its foreclosure claim and against Roy's counterclaims (`Motion'). Roy filed no opposition or request for an extension of time during the twenty-one day period following service of the Motion. On the day before the hearing on Corinthian's Motion, Roy submitted an opposition to the Motion which did not conform with the requirements of Supreme Court Rule 141(b). Therefore, Roy is deemed to have admitted the uncontroverted facts as set forth in Corinthian's Memorandum in Support of Summary Judgment. Corinthian's uncontroverted facts are incorporated by reference.

"It is undisputed that: 1) Roy had no agreement for Corinthian to provide him a loan until he received a written notice of the loan approval; 2) prior to December 1, 1994, Roy never received any loan commitment from Corinthian; and 3) finally, and most importantly, Corinthian loaned Roy all the money which he requested. Corinthian is granted Summary Judgment on the counterclaims because Roy failed to comply with the requirements of Supreme Court Rule 141(b) and controvert the facts set forth by Corinthian.

"It is also uncontroverted that: 1) Roy executed a note and mortgage to Corinthian; 2) Roy failed to make payments on the note; 3) Roy is in default; and 4) Roy's mortgage is subject to foreclosure. Because of Roy's defaults on the note, there is due from Roy, and Corinthian should have judgment as of April 10, 1997, of the following:

Principal Amount: $75,980.69 Interest Accrued Amount: 8,348.21 Charges: 6,076.23 __________ Judgment $90,405.13

The Judgment continues to accrue interest at a rate of $17.17 per diem after April 10, 1997.

"By reason of Roy's default, Corinthian is entitled to foreclose the Mortgage. Because Roy has paid less than one-third of the original debt, Roy's redemption period is three months pursuant to K.S.A. 60-2414."

In an affidavit, Albert Kuhl, an attorney licensed to practice in Kansas, averred that he met with Roy sometime after June 16, 1997. Roy expressed a belief that Young had filed a motion to reconsider Corinthian's judgment against him. Kuhl, however, was unable to find a motion to reconsider or similar written request in the court file. Kuhl so advised Roy.

On May 7, 1999, Roy filed a pro se petition alleging negligence, breach of fiduciary duty, and fraud against the defendants, Candis Young and Katz & Young, Case No. 99C5886. In June 1999, Roy, through counsel, filed a written request for a malpractice screening panel. See K.S.A. 2003 Supp. 60-3502. An order convening a screening panel was filed in July 1999.

In August 2000, Case No. 99C5886 was dismissed without prejudice for lack of prosecution. The order stated:

"The Court has received the information from David Bryan (Roy's counsel) that plaintiff is not prepared to go forward at this time due to the fact the Statute of Limitations has not run on KCPA claims. Plaintiff does not object to a dismissal without prejudice.

"IT IS THEREFORE BY THE COURT ORDERED that the above captioned case is hereby dismissed for lack of prosecution." In September 2000, Bryan filed on Roy's behalf a petition alleging violations of the KCPA against Corinthian. In November 2000, Corinthian's motion to dismiss was granted on the ground that the KCPA claims were untimely.

On June 20, 2001, the malpractice screening panel filed its opinion, which concluded:

"Base[d] upon the materials furnished and submitted to the panel, the panel voted unanimously that it was unable to determine that Mr. Roy's defenses and counterclaims would have resulted in either a defense to the foreclosure action or a collectable judgment in his favor. Based upon these inabilities, the panel is unable to conclude that a causal relationship exists between the deviations from the standard of care by Ms. Young and any ultimate claimed damage.

"The panel therefore finds unanimously in favor of Defendant Candis L. Young."

On July 19, 2001, this action was filed. The district court granted summary judgment in favor of Young on the ground that the legal malpractice and KCPA claims were time barred. The district court also denied Roy's motion for partial summary judgment on the question whether Young breached a duty of care.

We first consider if Roy's legal malpractice claim was time barred.

Where facts are not in dispute, appellate review of an order regarding summary judgment is de novo. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, Syl. ¶ 1, 78 P.3d 428 (2003).

Roy's July 2001 petition in the present case contained two counts—negligence and violations of the KCPA. The district court concluded that both causes of action were time barred. The district court determined that the present case "is essentially the same case as the action filed pro se on May 7, 1999" and reasoned, summarized as follows:

• Actions for negligence are governed by K.S.A. 60-513, the 2-year statute of limitations. Corinthian's motion for summary judgment was granted on May 8, 1997. Thus, a legal malpractice action based on Young's failure to file a timely and appropriate response to the motion for summary judgment had to be filed no later than May 8, 1999.
• On May 7, 1999, Roy filed his pro se petition against Young, but it was dismissed for lack of prosecution on August 30, 2000. K.S.A. 60-518 provides that a plaintiff may commence a new action within 6 months of a failure of a timely petition for reasons other than on the merits. The present action was not filed within 6 months of the dismissal of Roy's pro se petition for lack of prosecution. Thus, K.S.A. 60-518 did not apply.
K.S.A. 60-3509 provides:
"In those cases before a screening panel which have not been formalized by filing a petition in a court of law, the filing of a memorandum requesting the convening of a screening panel shall toll any applicable statute of limitations and such statute of limitations shall remain tolled until 30 days after the screening panel has issued its written recommendations." Roy's case before a screening panel had been formalized by his filing the pro se petition. Thus, K.S.A. 60-3509 did not apply.
• Actions for violations of the KCPA are governed by K.S.A. 60-512(2), the 3-year statute of limitations. Roy "learned of the alleged misconduct on or about June 16, 1997," when Kuhl advised him that no motion to reconsider the entry of summary judgment in favor of Corinthian had been filed, contrary to what Roy had been told by Young. Thus, an action based on Young's failure to file a timely and appropriate response to the motion for summary judgment had to be filed on or about June 16, 2000. The petition in this case was filed on July 19, 2001.

On appeal, Roy makes no argument with regard to the district court's decision that the KCPA count was time barred. An issue not briefed by an appellant is deemed waived or abandoned. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 884, 9 P.3d 1251 (2000).

Roy argues with regard to his negligence count that K.S.A. 60-3509, which tolls any applicable statute of limitations, applied to toll K.S.A. 60-518 so that he had 30 days after the malpractice screening panel opinion was issued to file the present action. In other...

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