Skahan v. Powell

• Court: Kansas Court of Appeals
• Writing for the Court: Before FOTH; SPENCER
• Citation: Skahan v. Powell, 8 Kan.App.2d 204, 653 P.2d 1192 (Kan. App. 1982)
• Decision Date: 24 November 1982
• Docket Number: No. 53669,53669
• Parties: Daniel P. SKAHAN, Appellant, v. M.C. POWELL, et al., Appellees.

Page 1192

653 P.2d 1192

8 Kan.App.2d 204

Daniel P. SKAHAN, Appellant, v. M.C. POWELL, et al., Appellees.

No. 53669.

Court of Appeals of Kansas.

Nov. 24, 1982.

Syllabus by the Court

In an appeal from an order disqualifying admission of an out-of-state attorney pro hac vice pursuant to K.S.A.1981 Supp. 7-104 and Supreme Court Rule 116, and from an order imposing monetary sanctions during pretrial discovery procedures as provided by K.S.A. 60-237, it is held:

(a) An order of disqualification of a party's attorney is one which disposes of an important right, separate from and unrelated to the merits of the main action, which as a practical matter will be lost unless immediate review is permitted. As such, it is a final decision from which an appeal to this court may be perfected under the provisions of 60-2102(a )(4).

(b) An order imposing monetary sanctions during pretrial discovery procedures as provided by 60-237 is interlocutory in nature and may be appealed to this court before final judgment, only when properly certified and the appeal accepted as provided by 60-2102(b ). Accordingly, the appeal from that order is dismissed.

(c) The admission of an out-of-state attorney pro hac vice under our statute and the supporting Supreme Court rule is a matter to be resolved by the trial judge, exercising sound judicial discretion and on a case-by-case basis.

(d) The order of disqualification under the facts of this case was not an abuse of discretion.

Rita M. Abernethy, Overland Park, for appellant.

Marvin E. Rainey of Rainey & Wiglesworth, Overland Park, for appellees.

Before FOTH, C.J., and SPENCER and SWINEHART, JJ.

SPENCER, Judge:

On motion of defendants, the district court entered an order disqualifying one Paul L. Skahan, licensed to practice law in the state of Missouri and associated with local counsel, from appearing as counsel for plaintiff in this action as may be permitted by K.S.A.1981 Supp. 7-104 and Supreme Court Rule 116.

Prior to the disqualification, defendants served notice on Paul L. Skahan and Rita M. Abernethy, local counsel, of their intention to depose one Mike Buser. On the date of the deposition only Skahan appeared. Defense counsel refused to proceed with the deposition if Skahan insisted on being present without local counsel. Skahan stated he intended to remain because local counsel was not required, but offered to reschedule the deposition. Defense counsel refused to proceed at that time and subsequently moved for the imposition of sanctions. This motion was sustained by the court and plaintiff was ordered to pay the fees for the court reporter's appearance for the deposition, witness fees, and the sum of $150 as defendant's attorney's fee.

Plaintiff appealed from both orders. The appeal was initially dismissed by this court for lack of jurisdiction, but was subsequently reinstated with directions to the parties to include the issue of jurisdiction in their briefs on the merits.

It has repeatedly been held that the right to appeal is neither a vested nor a constitutional right, but is strictly statutory in nature. State v. Fisher, 2 Kan.App.2d 353, Syl. p 1, 579 P.2d 167, rev. denied 225 Kan. 846 (1978). K.S.A.1981 Supp. 60-2101(a) provides in part:

"[A]ppeals from the district court to the court of appeals in civil actions shall be subject to the provisions of K.S.A. 60-2102, and any amendments thereto."

K.S.A. 60-2102(a ) provides in part:

"[T]he appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:

* * *

"(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable."

Plaintiff contends the orders granting the motions to disqualify counsel and to impose discovery sanctions are appealable because this court has discretion to hear the appeal under 60-2101 and/or the orders are "final decisions" under 60-2102(a )(4). Clearly, the first of those contentions is not correct. K.S.A.1981 Supp. 60-2101 is expressly made subject to and is limited by 60-2102. Jurisdiction of this court may be invoked either as a matter of right or through a properly certified interlocutory order. The appellate courts do not have discretionary power to entertain appeals from all orders of the district courts. See Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P.2d 476 (1976); Henderson v. Hassur, 1 Kan.App.2d 103, 105-06, 562 P.2d 108 (1977).

The term "final decision" has been construed to mean " 'one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.' " Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975). Whatever issues may exist in the cause now before us have not been finally determined in the trial court, and we believe it obvious that the order imposing discovery sanctions, being one on which the trial court may take further action, was not a "final decision" as contemplated by the statute. In any event, there is no reason why that order may not be reviewed and corrected, if need be, on appeal after the entire merits of the controversy have been resolved. We hold that an order imposing monetary sanctions during pretrial discovery procedures as provided by 60-237 is interlocutory in nature and may be appealed only when properly certified and the appeal accepted as provided by 60-2102(b ). Accordingly, the appeal from that order must be dismissed for want of jurisdiction.

The question of whether an appeal will lie from an order disqualifying plaintiff's out-of-state attorney in this cause is of greater concern.

We have found no Kansas authority directly on point; however, it is to be noted that subsection (a )(4) of 60-2102 is virtually identical to the federal statute (28 U.S.C. 1291) in that it allows appeals to the court of appeals from a "final decision." In holding that an order disqualifying an attorney from representing a litigant is appealable, the federal courts have relied on the "collateral order" doctrine originally announced in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify for this exception to the federal act, the order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); In re Coordinated Pretrial Proceedings, Etc., 658 F.2d 1355 (9th Cir.1981), cert. denied 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020 (5th Cir.), cert. denied 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981).

The order of disqualification in this case conclusively determines the question of whether plaintiff is to have counsel of his choice or be forced to retain another. It resolves an important issue completely separate and apart from the merits of the action, and does not advance a determination on the merits. Finally, the order of disqualification will be effectively unreviewable if an appeal is delayed until final judgment is entered. If plaintiff is denied counsel of his choice at this stage, a situation is created which cannot be completely rectified. If plaintiff should lose on the merits, he would have an almost insurmountable burden to show his loss was due to the change of counsel. If he should prevail on the merits, the disqualified attorney has no remedy for his loss of reputation and fees.

In the K.B.A. Appellate Practice Manual, Section IV, page 14 (1978) we find:

"Certain orders which do not dispose of any claim for relief and which appear to be purely interlocutory in character nevertheless have been deemed final decisions under the federal counterpart of K.S.A. 60-2102(a )(4). the most important category of such orders are called 'collateral orders.' [Citation omitted.] If the order disposes of an important claim of right, separable from and unrelated to the merits of the main action, which will be lost, as a practical matter unless immediate review is permitted, that 'collateral order' may be sufficiently 'final' to permit appeal."

Defendants nevertheless contend the collateral order doctrine is not applicable under Kansas law because such orders may be effectively reviewed as mandamus actions pursuant to K.S.A. 60-801 et seq. In Nunn v. Morrison, 227 Kan. 730, Syl. p 1, 608 P.2d 1359 (1980), it was stated:

"Mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal."

In addition, our court has consistently held:

" '[M]andamus cannot be used to control discretion, correct errors, or revise judicial action. Mandamus cannot be used as a substitute for appeal and it will not lie even though the party has no right of appeal or other remedy to review the action of a court, as the want of such remedy does not of itself entitle the party aggrieved to the extraordinary remedy of mandamus.' " Martin Marietta Aggregates v. Board of Leavenworth County Comm'rs, 5 Kan.App.2d 774, 779, 625 P.2d 516, rev. denied 229 Kan. 670 (1981).

See also Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980); Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972); Gray v. Jenkins, 183 Kan. 251, 326 P.2d 319

(1958). Under the circumstances here presented, disqualification of an out-of-state attorney is a matter to be resolved within the sound discretion of the trial judge, and mandamus is not an appropriate remedy. If this court withholds review at this time, the order of disqualification will be effectively unreviewable on...