*1 96,250 No. Polly Polly Cooke, of G. Townsend T. Trustee Gillespie, Trust, P. Appellant, Revocable James Estate, Appellee. of the Warren B. Executor (176 144) P.3d Opinion filed 2008. February Carmichael, Morris, Evans, Chartered, L. Brock & Jeffery Laing, Kennedy, Wichita, the cause and was on the briefs for argued appellant. Berwick, LLP, Wichita, cause, M. of Foulston Siefkin Stephen argued Gillen, Mclnteer, Wichita, L.C., and Dennis L. Gillen Rathbun & Depew was with him on the brief for appellee. was delivered of the court *2 opinion Nuss, latest in which has This is the a dispute spawned appeal J.: court, three our five to this to over 20 of litigation, prior years trips 5 in the United States Court of years litigation Appeals, of an in- Court. The current arises out Bankruptcy disagreement determine distribution of funds that had been action to terpleader lawsuit settlement in order withheld from these parties’ proceeds reversal and remand from the to litigation expenses. Upon pay 91,078, No. Court of Cooke v. Gillespie, unpublished Appeals, 2004, 10, filed the district court or- December ultimately opinion Trust to dered an distribution: the Townsend was be equitable paid $33,000 $223,000. and the Estate over approximately Gillespie just (Cooke) Townsend Trustee and the Ex- appealed, Gillespie ecutor from the We transferred case (Gillespie) cross-appealed. on our to K.S.A. 20- Court own motion pursuant 3018(c).
Cooke claims under to funds argues Gillespie’s quantum meruit, enrichment, or barred a common fund are unjust theory limitations raised for the statute of because claims were first time 7 after the settlement funds were be disbursed. years denies that the statute of limitations bars his recovery
Gillespie but, so, if that it bars Cooke’s argues similarly recovery.
Our is based a related consideration: stat- Cooke’s holding ute limitations was not Accord- preserved appeal. the decision of the district court is affirmed. ingly,
FACTS
These factions have been involved in
1987. See
since
disputes
Thornton,
(10th
1996);
v.
980
v.
79 F.3d
Cir.
Seymour
Gillespie
1387,
(2002);
272
39
61
v.
Kan.
P.3d
Seymour,
Gillespie Seymour,
650,
(1998);
952
255
P.2d 1313
v. Seymour,
Gillespie
169,
774, 877
(1994);
Kan.
P.2d 409
v.
Gillespie Seymour,
123,
(1993);
v.
Kan.
823 P.2d
250
Gillespie Seymour,
(1991);
91,078,
782
v.
Cooke
No.
Gillespie,
unpublished opinion
10, 2004;
2d
filed December
v.
19 Kan. App.
Gillespie Seymour,
754,
193,
(1994);
v.
876 P.2d
rev. denied
A of certain facts is to understand the recapitulation necessaiy facts, of the which are are present controversy. Many undisputed, taken from the Court of Appeals’ unpublished opinion and from the district court’s decision on remand: the Gillespie, nunc tunc dated 2006. pro journal entry judgment February Townsend an August Polly Gillespie sought accounting of the trust when certain arose as to the trustees’ family suspicions an on an management. Originally, attorney represented Polly Later, beneficiaries, basis. the other trust her brother War- hourly ren and their mother Pauline as addi- Gillespie, joined tional after the Pauline plaintiffs. Shortly filing litigation, died and her estate was substituted. death,
After Pauline’s sent a contin- attorney proposed joint *3 fee to which for a scale of gency agreement Polly provided sliding rates from 35% to 50% based on the in ranging stage litigation which the case was won. The stated that if there was no proposal there would be no for services recoveiy, compensation except the incurred. the out-of-pocket expenses Polly signed agreement after out the of out-of- crossing provision concerning payment in the event of no The contract did not pocket expenses recovery. address in the event the liti- recovery out-of-pocket expenses was successful. gation contract, this the contacted Warren and
Upon receiving attorney his son fees and This con- Gillespie concerning expenses. James sultation in resulted a fee between Warren and separate agreement to this Warren would advance attorney. According agreement, However, were incurred. if payment litigation expenses they successful, was Warren would receive a 5% reduction litigation on his fee. portion contingency after numerous trials and the case was re-
Ultimately, appeals, solved in favor of the the Townsends and the plaintiffs: Gillespies. Then one of the defendants filed for at which time bankruptcy, Warren and met with the and to attorneys agreed pay James work on the case on an basis. was not bankruptcy hourly Polly involved in these discussions and did not further sign any agree- ments. case,
Prior to the resolution of the both and Polly bankruptcy children, Warren died. Their and Town- (Gillespie) Polly James (Cooke), became, send were substituted and later in their to this representative capacities, present parties appeal. the case settled Cooke were awarded Gillespie $2,250,000, which was in half between them. approximately split had 45% out his half to and Cooke Gillespie pay attorney had to 50% her share to the Later that a pay attorney. year arose between and Cooke over the dispute Gillespie responsibility $167,000 for the A little over of Cooke’s settle- litigation expenses. ment was set aside in a trust fund resolution of these pending issues. This concerned in- not dispute only out-of-pocket expenses but also fees curred incurred due to the liti- attorney bankruptcy gation. filed a motion the court to resolve the
Gillespie
asking
dispute
(2007
under Kansas
Rules Professional Conduct 1.5
Kan. Ct. R.
428).
Annot.
District Court
Paul Buchanan ruled
favor of
Judge
i.e.,
Cooke,
should be
After
Gillespie,
expenses
split.
appeal by
reversed and
we
remanded on
v.
jurisdictional grounds. Gillespie
remand,
After another
this court
on
appeal by
February
1.5(e)
“had
no
under KRPC
standing
ap-
either to test the reasonableness of
[Cooke’s]
plication
Polly
sep-
contract,
arate fee
or to seek a resolution of his oral contract dispute
with
Within weeks after our the Wichita law firm of McCausland, Clark, P.A., Wells & Young, Bogle, (Young, Bogle) for both Cooke and in the under- original attorneys Gillespie filed a the court to lying litigation, petition interpleader, asking “issue an order which of the herein is entitled determining parties to said trust monies. . . .” Cooke, and,
On the motion of these funds were into court paid could be dismissed. subsequently, parties agreed Young, Bogle theories, claim to the funds under a number of in- Gillespie lay contract, contract, an oral of the written cluding interpretation meruit, enrichment, and the common fund quantum unjust theory. trial brief identified one of the issues as follows: Are Gillespie’s either or both sides of the claims the other side family’s against barred statutes of limitations? by applicable a
Cooke then filed motion for summary judgment, contending claim that have to the funds was barred any Gillespie might cross-motion, the statute of Hmitations. filed arguing barred, that if his claims were Cooke’s claims would be barred by tire statute of limitations as well. Both of these motions dispositive were heard and denied a third district court eventually judge, David on 2003. Kennedy, January Consistent with District procedures Sedgwick County Court, the then to another Re- interpleader assigned judge, Pilshaw, trial, 18,2003, becca for trial. After a bench on Judge June Pilshaw claims based a verbal directly rejected Gillespie’s meruit. Cooke had raised the agreement quantum Although statute of Hmitations her motion for before summary judgment Pilshaw, at trial before the latter Judge Kennedy, again Judge did not rule on that issue. She stated: “I do not need under judge Hmitations, to reach the issues the statutes of ruHng regarding and I’m not to rule on those matters.” going to the Court of other
Gillespie appealed Appeals. Among he asserted in his brief that Pilshaw erred “in grounds, fading to address common fund con- GiHespie’s theory recovery.” By trast, Pilshaw’s similar failure to address several of despite Judge defenses, Hmitations, Cooke’s statute of Cooke failed to including Moreover, file a Cooke not failed to raise the cross-appeal. only statute of Hmitations defense in her brief but also response argued that the issue was not one before the Court of Appeals, stating: issues, because the case was resolved on other the trial court did not “Finally, Therefore, reach the statute of hmitations the issues [Citation omitted.] argument. from the conference order and trial brief are remaining pretrial Appellant’s eq- uitable claims based on the doctrines of common fund and meruit.” quantum On December found that under the common fund as well as under meruit or an theory, quantum enrichment Cooke should be unjust analysis, responsible pay- *5 of an share of the Cooke v. ment equitable litigation expenses. “the at 6. It reversed and remanded for deter- Gillespie, slip op. mination of an division the and expenses litigation equitable the of the court.” a distribution of the funds held clerk by Slip op. admits, the makes no mention of a statute at 6. As Cooke opinion issue. of limitations then filed a for review of the Court of petition Appeals’ with this court. In it she other
decision argued, among things, the statute of limitations claims against Gillespie’s application meruit, the common fund and based theory, quantum unjust that enrichment. he noted Pilshaw Gillespie’s response, issue, not reach the statute of limitations that no did cross-appeal action, taken her from Court “naturally, did not address that nonissue.” that Accordingly, Gillespie argued the statute of limitations issue was for review the inappropriate by Court. Supreme
This court denied Cooke’s for review on petition May and the mandate was issued on 9.May remand,
On the case was assigned Judge Benjamin Burgess. Cooke resurrected her statute of limitations filed theory again a motion for that summary judgment, again claiming Gillespie’s claims were time-barred. filed a cross-motion for Gillespie again that if his claims were barred summary judgment, contending limitations, statute of Cooke’s were likewise barred. meruit, found Judge Burgess Gillespie’s quantum unjust enrichment, and common fund claims were a continuation of the claims made in the actions. He held since equitable previous action was dismissed Court on previous juris- Supreme dictional these claims were “saved” under the grounds statute, 60-518. K.S.A. he provisions saving Accordingly, found that as a matter of because shared equity, parties equally claim, in the initial were entitled to an share of the they equal settlement, from its division of proceeds e.g., equitable litigation expenses. decision, Cooke’s we transferred
Upon appeal Judge Burgess’ to this court.
ANALYSIS Issue: Cooke’s statute limitations was not preserved appeal. for in that erred her motion
Cooke argues Judge Burgess denying claims because are barred summary Gillespie’s by judgment that the the statute of limitations. statute Specifically, argues of limitations in 1995 when knew that began running there was a over who would the dispute pay litigation expenses. that the
Cooke’s brief issue not addressed the by alleges district court in 2003 or in by reviewing 2004, decision in but that it is now for determination the ripe by Court: Supreme had raised and the issue of the [Cooke] “Appellant previously properly preserved However, statute limitations the the issue of the stat- throughout proceedings. ute of limitations had not been addressed because directly previously Appellant had in the trial that led to that The statute [Cooke] prevailed appeal. oflimitations
was never addressed
the district court in this
and
it was
by
proceeding,
therefore
also not addressed
court in the decision issued December
by
2004. .. .
Therefore,
“. . .
tire issue of the statute of hmitations is now
before
squarely
added.)
the court and is
ripe
(Emphasis
determination.”
that the district court
his
Gillespie responds
correctly granted
motion
He
that the
summary judgment.
argues
interpleader
action is a derivative of the
action and that we should look
original
to the district court’s
over the
of the
ongoing jurisdiction
proceeds
settlement. He also
that his claims are
original
argues
preserved
statute,
K.S.A. 60-518.
saving
There is no
over the material facts.
disagreement
Accordingly,
we
review the district court’s denial of Cooke’s motion for
may
Bank,
de novo. See Botkin v.
State
Security
summary judgment
(2006).
281 Kan.
have decisions rulings appellee complains, shall, after within the notice has been served days appellee appeal court, with the clerk trial such and filed of such notice appellee give ap- added). cross-appeal.” (Emphasis pellee’s of such to conserve is time purpose provision expense abstracts, briefs, and eliminate Fields duplication opinions. Co., Inc., Anderson Kan. Cattle the Fields court affirmed that a second and Accordingly, direct be used as a sub- appeal—by original appellee—cannot for a stitute directed statute. at cross-appeal 570.
We have
held that
an
before
ad-
clearly
appellee may present
verse
to the
it must
court
file a
If
rulings
cross-appeal.
not,
the
does
we have held that the
not
issue is
appellee
properly
See,
before the court and
not be considered.
Butler Co.
may
e.g.,
Yates,
291, 299,
No. 8
275
(2003);
R.W.D.
v.
Kan.
64
357
P.3d
Industries,
Inland
Inc. v.
Union,
Teamsters and
Local
Chauffeurs
(1972);
209 Kan.
As noted to Cooke’s previously, Gillespie’s response petition review of the of Court December 2004 decision Appeals’ briefly that Cooke’s statute of limitations was argued argument inappro- for review because Cooke had not from priate cross-appealed it, Pilshaw’s failure to reach and the Court of con- Judge Appeals did address not this “nonissue.” More we ob- sequently basically, that earlier, serve Cooke failed to an ad- cross-appeal clearly verse, denial of her ruling: Kennedy’s summary judgment motion that was based the statute limitations. We therefore with Cooke’s the assertion that issue had been not disagree directly addressed and that she the issue previously properly preserved the Because Cooke’s failure to cross- throughout proceedings. under 60-2103(h), this court’s of K.S.A. appeal, past interpretations been, the statute of limitations issue not could have and indeed not, the considered Court of in its December by opinion. contention that with Cooke’s also must
We therefore disagree before this is now limitations the statute of the issue of squarely the is The issue determination. and is court long past point ripe of our consideration. Kan. is on Pittsburg, City of The case point. James the owners of
There, were individual majority plaintiffs annexed to be within an area land by city. tracts of sought lying After annexation ordinance. the validity challenged They defendants in favor of the trial, trial court entered judgment and its commissioners. city matter that as a threshold
On city argued appeal, plaintiffs’ that the We observed not the were city parties. proper plaintiffs the trial to dismiss before in a motion raised this first denied, renewed motion was court; the motion. court city’s evidence; denied the trial court at the conclusion again plaintiffs’ had filed no the motion. We observed cross-appeal city from either ruling. 60-2103(h), noted that a similar this court K.S.A.
After quoting
1949, 60-3314,
statute,
had been construed
G.S.
predecessor
before that
to file a
this court as
cross-appeal
requiring
appellee
“Inas-
review. We held:
can
adverse rulings
present
appellee
no notice of
much as the
provided
cross-appeal,
city gave
stated,
contention,
is not
statute,
have hereinbefore
as we
its
prop-
The case of
Chavez
2d
875 P.2d
App.
(1994),
(1995),
tations because of her failure to formally cross-appeal from adverse we further hold that the issue Judge Kennedy’s ruling, is barred because of Cooke’s later failure to otherwise bring issue from Pilshaw to the Court of for consideration. Appeals her brief failed to raise statute of limitations Specifically, appellee unaddressed, alternate—and not for af- rejected—rationale Pilshaw’s such firming Judge holding, although practice appar- was in Ellis v. Co., State Farm Mut. Auto. Ins. ently approved Kan. Ellis, this court State Farm did acknowledged appellee
not raise the issue of res
in a
to the Court of
judicata
cross-appeal
but rather raised it in its
brief. It also acknowl-
Appeals
appellee
that State Farm asserted that “the issue of res
edged
judicata
before the Court of
because an
properly
appellee may urge
matter for affirmance of a
even
tire
any
judgment,
though
argu-
ment
involve an attack on the
die
may
reasoning employed by
court,
lower
or add new reasons that the lower court
ignored
precise path affirmed the Court of claim and res barred appellant’s judicata Kan. at 604-05. 249 res judicata disposition. Appeals’ than the in a less Cooke is certainly sympathetic party appellees in the workers claimant these cases. The city James, compensation Chavez, Scammahom, in albeit without cross- in plaintiff at least to raise their adverse to rulings appeals, attempted Likewise, State court so the issues could be addressed. appellate issue—unaddressed, Farm in Ellis at least not raised necessarily ruled the district court—so it could adversely upon, potentially Here, made no be addressed court. attempt to raise her statute of limitations to the Court of argument Appeals in 2004 for consideration. We have held that an issue not briefed abandoned; is deemed waived or raised in- similarly, only point in a there is deemed abandoned. brief but not cidentally argued Trust, 3, Park v. Roeland City Syl. ¶ Jasan America, (2006); N.A., P.3d 943 v. Bank McGinley law, Consistent with this case Syl. ¶ we must consider Cooke’s statute of limitations to have been waived and abandoned at the Court of level. Appeals short, failure her statute of limitations ar- Cooke’s to raise to the Court of in 2004 has resulted in these recent gument Appeals issue, a in on this frowned Kansas. piecemeal appeals practice Moreover, once the Court of issued its dis- opinion—to tribute the funds once we denied Cooke’s equitably—and petition review, mandate was issued and Appeals’ Judge it, do, followed as he was to Burgess ultimately required pursuant (mandate 60-2106(c) in to K.S.A. “shall be the conduct controlling court.”). in further the district any proceedings necessary statute of limitations ceased an issue in the case well before being from which Cooke now decision Judge Burgess’ appeals. Affirmed. I with the well-reasoned
Johnson, J., agree majority concurring: view, that, I write only clarify my opinion. separately should have dismissed Cooke’s motion for summary Burgess simply *10 the district court’s re- being beyond judgment authority upon mand. notes, 60-2106(c)
As the K.S.A. codifies the majority principle that an court’s and “mandate . . . be shall con- opinion in the conduct of further in the any trolling necessary proceedings Here, district court.” at 12. Slip op. Appeals gave district court clear and directions when it stated: “This mat- explicit ter is and reversed remanded to the district court for the deter- mination of an division equitable expenses litigation a of the funds held the clerk distribution of the court.” Slip op. 91,078, at Cooke v. No. filed De- Gillespie, unpublished opinion cember 2004. That directive did not authorize the district court to revisit the merits of the case for sum- motion by entertaining consideration of the statute mary judgment clearly precluded of limitations remand. in the J., joins
Beier, foregoing concurring opinion.