Schroeder v. Urban
750 P.2d 405
Kan.
1988
Check Treatment

*1 60,847 No. al., Appellees, al., et Ap- et

Dan S. Schroeder, Urban, John pellants.

(750 405) P.2d Opinion 19, February filed 1988. McEntire, Sloan, Listrom, Eisenbarth, Glassman, R. Sloan & James Topeka, argued appellants. the cause for the Lewis, Jr., Lewis, Beims, Atwood, argued Robert Lewis & the cause J. appellees. and was on brief for the court was delivered Miller, Do the courts have to hear J.: appeal? juris- dismissed for want of jurisdictional diction and we question review. The is the only issue we will decide in this case. 23, 1987, February

On the district County court of Thomas Urbans, against entered defendants ap- and now pellants. attorney represented the Urbans at trial no- judgment, tified them of the represent also declined to them any appeal. On March days after the judge granted the trial the defendants an additional 30 days appeal. take their ruling during made a confer- ence call between the plaintiffs counsel for both defendants, journalized and was day. on the same At that were home, Urbans snowbound in their rural and had been unable to secure counsel to take their 30-day Within the extension, the Urbans secured new April 22, counsel and on notice, July On their notice after filed *2 appeal jurisdiction. for lack of Appeals Court of dismissed 60-2103(a), by part Appeals governed K.S.A. which reads in are as follows: Appellate procedure, (a) appeal When and how taken. When an is “60-2103.

permitted by a district an within which law from court to the time thirty (30)days entry judgment, appeal may an taken shall be from the of the as be 60-258, showing except neglect by a K.S.A. of excusable party entry judgment a to learn of the district court in based a failure of of exceeding any may appeal thirty (30) days time action extend the for not from the expiration original prescribed. running time the time for of the herein of timely appeal by pursuant any is a motion made to of the rules terminated enumerated, appeal and the time for hereinafter full fixed in this subsection entry any following computed run and is to be from the of the commences to Granting denying a under such rules: a orders made motion or (b) 60-250; judgment granting motion under subsection of K.S.A. or or for denying (b) under of K.S.A. 60-252 make a motion subsection to amend or fact, findings judgment alteration of additional whether or not an would be granted; denying required granting is or under K.S.A. if the motion or a motion judgment; denying a 60-259 to amend the or motion for new trial under alter or K.S.A. 60-259. may by filing party judgment a with “A from the clerk of the district appeal.” a court notice of Here, was no to amend or make there motion additional findings alter or fact or to amend nor was there a trial; thus, running of the time for motion new for a by timely filing terminated of such motion. The Urbans not had been entered. were aware ordinarily governed by time are K.S.A. 60- Extensions of 206(b), as which reads follows: given “(b) by chapter by by Enlargement. a When or notice thereunder or required specified at is to be done within a order of an act or allowed or court judge’s (1) may any in the cause shown at time discretion with for enlarged request is if therefor made or without or notice order the motion period originally prescribed expiration of the or as extended a before the specified (2) upon previous made after the of the or motion order period permit the result of be where the failure to act was the act to done may taking any under neglect; the time for but it not extend excusable (d) (e) 60-260(b) except 60-250(b), 60-252(b), 60-259(b), K.S.A. the conditions stated in them.” extent and under KCC,

In App. Stanton Kan. 2d 577 P.2d rev. (1978), Appeals denied the Court of held that K.S.A. 60-206(b), 60-2103(a), having subsequent to K.S.A. been enacted specifically being appellate pro- statute which deals with cedure, precedence and limits the court takes trial grant except to take extensions of time an there where showing neglect party is a of excusable based on failure of a learn of an dismissed appeal, petition and we denied the review. for distinguishable party from at Stanton the case bar. The seeking request did an Stanton not extension time 30-day period 60-2103(a), within the fixed K.S.A. nor did Thus, Stanton, grant trial court within that time. extension mercy wanted was at of the trial court present case, an extension. In the motion was made for days appeal, within the 30 extension and had the extension denied, been a notice could been have filed within the *3 days. case, statutory present In application 30 the for exten- 30-day period, sion was made within the the was extension granted, appellants ruling judge relied of the trial extension, granting that and notice of was filed within granted. the extension Supreme

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

for the 7th Circuit dismissed the The United States Supreme reversed, stating: Court hardship great judge’s “In view obvious a of the relies the trial finding neglect’ prior expiration 30-day period of ‘excusable finding, great given then it suffers reversal of the should be deference reviewing here, proper court. Whatever the result as an matter initial on the facts showing unique circumstances a sufficient that the Court the record contains judge’s ruling.” Appeals ought not to have disturbed the motion 371 U.S. at 217. unique Wright circumstances doctrine is discussed in 4A § Miller, Civil Federal Practice and Procedure: 2d (1987), as follows: employed untimely appeal, unique “When in the context of an circum- concept theory estoppel. Supreme similar stances is based on Court party ought opportunity have that a not be denied an seems to concluded timely appeal file a because of his failure to when that failure resulted generated reliance on action taken the district court that a reasonable

from 501-02.) (pp. belief that an could be initiated at later date.” Appeals clearly The District Columbia Court of and con- unique cisely explained the circumstances doctrine in Aviation Orr, Enterprises, (D.C. 716 F.2d Inc. 1406 n.25 Cir. 1983): parties untimely appeals long permitted have to maintain otherwise “Courts ‘unique appellant reasonably good in which the and in circumstances’ —those upon judicial seemingly extending appeal period, provided faith relies prior expiration that the court’s action occurs of the official appellant period apparently files a notice of before

judicially extended.” Kemp, In Constr. Co. v. 721 P.2d 278 Tobin considered, (1986), inapplicable we but found under the facts of case, Tobin, unique judg- circumstances doctrine. In plaintiff, plaintiff ment for was entered the district court. The award, prepared with the and served a motion to dissatisfied judge’s The motion was left in the trial alter or amend evening day. The trial late on the of the tenth office *4 actually of town and did not see or know of motion for out timely days thereafter. We held that the motion was not several filed, procedure employed, and thus because of the Tobin’s unique circum- cross-appeal was out of time. We considered Harris, we determined that the doctrine stated in but stances within that facts in did not come doctrine. Tobin Here, requested prior an extension of time the Urbans statutory period. ap- The trial original authority so, knowing granted it without to do parently not good faith time. The Urbans relied an extension of they extending appeal period, filed trial court’s 714 appeal

their notice of within the extension of time by the motion, trial court. Had the trial court denied the counsel for the Urbans could have filed a notice of recognized The 10th applied unique Circuit circum- Kieser, (10th stances doctrine in 1982), Stauber 810 F.2d 1 Cir. plaintiff wherein the had relied the district court’s im- proper granting anof extension of time to file a motion to alter or amend the The 10th Circuit stated: ‘unique circumstances,’ great hardship “In these it would now work a plaintiffs appeal untimely. to dismiss the as . . . The court is of the justice.” to do so would not be in the best interests of 810 F.2d at 1-2. Here, purported extension was for a reasonable days, length 30 the same appeal of time as the time fixed case, statute. Under the facts of this we conclude that we should apply unique the doctrine of circumstances. reversed, of the Court of and the case

is remanded to that court with directions appeal to reinstate the and determine the matter on its merits. J., dissenting: respectfully I disagree with the hold-

Lockett, ing majority. The controlling issue is not whether a right should be denied to an because “unique circumstances,” but rather whether this court has the 60-2103(a) rewrite K.S.A. to allow the district judge upon a timely request appeal?! to extend the time

This appellate jurisdiction court has such as is by law. to entertain an is conferred statute Jurisdiction pursuant 3, § to article Constitution, of the Kansas and when jurisdiction, the record discloses a lack of it is duty of this court to dismiss Moses, State v. 227 Kan. (1980). P.2d 477 Kansas jurisdiction courts have no entertain an unless the is taken within the time prescribed by limitations applicable statutes. Tripp, State v. Syl. (1985). ¶ Kan. 699 P.2d 33 Moses, Miller in State v. reviewed Justice whether the district court had an extension of time file 60-2103(a). notice of under K.S.A. The court portion found that the of that statute granting an extension of apply time to did not to a criminal proceeding. A unani- *5 court, court, present the included five members of which mous filing notice is the of determine did authority express jurisdictional that there no 60-2103(a) grant district court leave to file an for the K.S.A. out time. acknowledge fails to majority of this court its The jurisdiction imposed by the Kan- appellate restraints on our the statutes, major- Constitution, prior case law. The the and our sas adopts ity simply appellate our statutes and the federal reviews interpretation of the Federal Rules of Procedure. Rather courts’ disregarding years rewriting of Kansas law 60- than “unique 2103(a) the circumstances” extension of the to include majority appeal, file the could have stated the time to an 60-260(b)(6), of K.S.A. which allows re- legislature’s enactment any operation granted reason from the the lief for power the the time of district courts extend Appellate jurisdiction cannot be created but can acquired be and exercised where derived from the consti- restrictions, or from statutes. Absent constitutional tution cases, circumstances, in what under what legislature determines may legislature’s It is the appeals from what courts be taken. impose restrictions as time and the manner of right to right usurp legislature no majority has judges right filing the district extend time for period. appeal beyond statutory adoption finality every “unique circumstances” doctrine renders judge suspect, unless district finds that there exists require “unique which the extension of the circumstances” no Every request to a to extend the time time. district itself, appealable issue whether to file an becomes foundation, granite which request is or not. based, replaced by shifting been has “unique circumstances.” sands of