Schroeder v. Urban

• Decision Date: 19 February 1988
• Docket Number: No. 60847,60847
• Citation: 750 P.2d 405,242 Kan. 710
• Parties: Dan S. SCHROEDER, et al., Appellees, v. John URBAN, et al., Appellants.
• Court: Kansas Supreme Court

Page 405

750 P.2d 405

242 Kan. 710

Dan S. SCHROEDER, et al., Appellees, v. John URBAN, et al., Appellants.

No. 60847.

Supreme Court of Kansas.

Feb. 19, 1988.

Syllabus by the Court

In the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant files a notice of appeal within the period apparently judicially extended.

James R. McEntire, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, argued the cause for appellants.

Robert J. Lewis, Jr., of Lewis, Lewis & Beims, Atwood, argued the cause and was on the brief, for appellees.

MILLER, Justice:

Do the appellate courts have jurisdiction to hear this appeal? The Court of Appeals dismissed for want of jurisdiction and we granted review. The jurisdictional question is the only issue we will decide in this case.

On February 23, 1987, the district court of Thomas County entered judgment against the Urbans, defendants and now appellants. The attorney who represented the Urbans at trial notified them of the judgment, and also declined to represent them on any appeal. On March 23, 1987, 28 days after the entry of judgment, the trial judge granted the defendants an additional 30 days to take their appeal. The ruling was made during a conference call between the judge and counsel for both plaintiffs and defendants, and was journalized on the same day. At that time, the Urbans were snowbound in their rural home, and had been unable to secure counsel to take their appeal. Within the 30-day extension, the Urbans secured new counsel and on April 22, 1987, filed their notice of appeal. On July 16, after notice, the Court of Appeals dismissed the appeal for lack of jurisdiction.

Appeals are governed by K.S.A. 60-2103(a), which reads in part as follows:

"60-2103. Appellate procedure. (a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.

"A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal."

Here, there was no motion to amend or make additional findings of fact or to alter or amend the judgment, nor was there a motion for new trial; thus, the running of the time for appeal was not terminated by the timely filing of such a motion. The Urbans were aware that judgment had been entered.

Extensions of time are ordinarily governed by K.S.A. 60-206(b), which reads as follows:

"(b) Enlargement. When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge's discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under K.S.A. 60-250(b), 60-252(b), 60-259(b), (d) and (e) and 60-260(b) except to the extent and under the conditions stated in them."

In Stanton v. KCC, 2 Kan.App.2d 228, 577 P.2d 367 rev. denied 225 Kan. 845 (1978), the Court of Appeals held that K.S.A. 60-2103(a), having been enacted subsequent to K.S.A. 60-206(b), and being a statute which deals specifically with appellate procedure, takes precedence and limits the power of the trial court to grant extensions of time to take an appeal except where there is a showing of excusable neglect based on a failure of a party to learn of an entry of judgment. The Court of Appeals dismissed the appeal, and we denied the petition for review.

Stanton is distinguishable from the case at bar. The party seeking to appeal in Stanton did not request an extension of time within the 30-day period fixed by K.S.A. 60-2103(a), nor did the trial court grant an extension within that time. Thus, in Stanton, the party who wanted to appeal was at the mercy of the trial court to grant an extension. In the present case, motion was made for an extension within the 30 days for appeal, and had the extension been denied, a notice of appeal could have been filed within the statutory 30 days. In the present case, application for an extension was made within the 30-day period, the extension was granted, the appellants relied upon the ruling of the trial judge granting that extension, and the notice of appeal was filed within the extension granted.

At the time the United States Supreme Court decided the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962), Fed.R.Civ.Proc. 73(a) was in effect. See 12 Wright & Miller, Federal Practice and Procedure: Civil 2d § 3072 n. 1 (1973). That rule permitted an extension of time for taking an appeal only "upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment," language identical to that of our K.S.A. 60-2103(a). The facts in Harris were that within the 30-day time for taking an appeal counsel moved for an additional fourteen days, the extension was granted by the trial court, and the notice of appeal was filed on the fourteenth day but after the expiration of the 30-day statutory period. The Court of Appeals for the 7th Circuit dismissed the appeal. The United States Supreme Court reversed, stating:

"In view of the obvious great hardship to a party who relies upon the trial judge's finding of 'excusable neglect' prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge's ruling." 371 U.S. at 217, 83 S.Ct. at 285.

The unique circumstances doctrine is discussed in 4A Wright and Miller, Federal Practice and Procedure: Civil 2d § 1168 (1987), as follows:

"When employed in the context of an untimely appeal, the unique circumstances concept is based on a theory similar to estoppel. The Supreme Court seems to have concluded that a party ought not be denied an opportunity to appeal because of his failure to file a timely appeal when that failure resulted from reliance on action taken by the district court that generated a reasonable belief that an appeal could be initiated at a later date." (pp. 501-02.)

The District of Columbia Court of Appeals clearly and concisely explained the unique...