Ternes v. Galichia, 297 Kan. 918

Herman M. Ternes was injured during surgery on March 5, 2004; he retained James A. Cline of Accident Recovery Team (ART) and an initial malpractice suit was filed March 3, 2006, two days before the limitations period expired.
Service on Dr. Joseph P. Galichia was not properly completed; subsequent screening-panel proceedings and dismissal for failure to prosecute followed; Ternes later voluntarily dismissed the first malpractice action without prejudice on January 2, 2008.
Ternes filed a new malpractice suit on May 23, 2008; Galichia moved to dismiss as time-barred on August 13, 2008.
Cline and ART moved to intervene (August 29, 2008) to oppose Galichia’s statute-of-limitations motion, alleging Ternes would not oppose dismissal; the district court allowed intervention and granted Galichia’s motion on September 5, 2008.
Cline and ART appealed; the Kansas Court of Appeals reversed and remanded. The Kansas Supreme Court granted review and held Cline/ART lacked standing to intervene and to appeal, dismissed the appeal, and vacated the Court of Appeals’ decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cline/ART had standing to intervene under K.S.A. 60-224(a)(2)	Cline/ART claimed an interest in the underlying transaction and that disposition would impair their ability to protect that interest	Galichia argued intervenors had no direct, legally protectable interest in the malpractice action and intervention was improper	Held: No standing to intervene; interest was speculative and not legally protectable
Whether intervenors’ alleged injury was concrete and redressable	Intervenors argued dismissal would harm their economic interests in related litigation	Galichia argued any harm was speculative and traceable only to outcomes in separate litigation	Held: Injury was not concrete, particularized, or redressable by relief against Galichia
Whether an intervenor without independent standing may prosecute an appeal when the original plaintiff declines to appeal	Intervenors proceeded to appeal after Ternes did not participate	Galichia argued intervenors lacked independent appellate standing	Held: Intervenors lacked independent standing to appeal; appeal dismissed
Whether the Court of Appeals’ reversal could stand despite intervenor defects	Intervenors urged merits review on statute-of-limitations issue	Galichia urged vacatur due to jurisdictional standing defect	Held: Court of Appeals’ decision vacated because intervention and appellate standing were lacking

Ternes v. Galichia, 43 Kan. App. 2d 857 (Kan. Ct. App. 2010) (Court of Appeals decision reversing dismissal below)
Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258 (Kan. 2012) (federal Rule 24 decisions may guide construction of Kansas intervention statute)
Fairfax Drainage Dist. v. City of Kansas City, 190 Kan. 308 (Kan. 1962) (intervenor must show concrete burden on legal rights to establish interest)
Horne v. Flores, 557 U.S. 433 (U.S. 2009) (standing requires concrete, particularized, actual or imminent injury; redressability)
Bond v. United States, 564 U.S. 211 (U.S. 2011) (adverseness requirement for standing)
United States v. Texas Eastern Transmission Corp., 923 F.2d 410 (5th Cir. 1991) (theoretical impairment is insufficient to warrant intervention)
Southmark Corp. v. Cagan, 950 F.2d 416 (7th Cir. 1991) (potential, unliquidated claims do not justify intervention)
Diamond v. Charles, 476 U.S. 54 (U.S. 1986) (intervenor must show independent standing to continue appeal)
Kowalski v. Tesmer, 543 U.S. 125 (U.S. 2004) (parties generally cannot assert rights of third parties)