Articles Posted in Civil Procedure

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Plaintiff filed an intentional tort lawsuit against Defendants for injuries he allegedly suffered as a result of a battery. The case was dismissed for lack of prosecution. Plaintiff refiled his case using the Kansas savings statute, Kan. Stat. Ann. 60-518. The district court dismissed the case once again for lack of prosecution. Plaintiff then filed this third action, attempting to invoke section 6-518 a second time. The district court dismissed the action with prejudice. The court of appeals affirmed, concluding (1) a party may use section 60-518 only one time to resurrect a case dismissed for a reason other than upon the merits when the statute of limitations for the underlying cause of action has expired; and (2) therefore, this action was barred by the statute of limitations and properly dismissed with prejudice. View "Lozano v. Alvarez" on Justia Law

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A jury found Cecil Emerson was a sexually violent predator, and the district court ordered him committed. In 2001, Emerson filed a notice of appeal. The Court of Appeals ultimately dismissed the appeal in 2002 after Emerson’s counsel failed to file a brief. In 2014, Emerson moved the district court to permit an out-of-time appeal of the underlying ruling that he was a sexually violent predator. The district court ruled that it would give Emerson the right to appeal based upon his previous counsel’s lack of action after the notice of appeal was filed and the appeal was dismissed. In 2015, Emerson filed a notice of appeal. The Court of Appeals concluded that Emerson was entitled to an out-of-time appeal based on principles of fundamental fairness and then rejected Emerson’s arguments. Emerson petitioned for review. The Supreme Court dismissed the appeal, holding that the district court lost jurisdiction to authorize the filing of the out-of-time direct appeal when the initial appeal was docketed in the Court of Appeals, and therefore, the district court could not set aside the order of the Court of Appeals and reinstate the appeal. View "In re Care & Treatment of Emerson" on Justia Law

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Plaintiffs filed a wrongful death lawsuit against Defendants. The district judge issued a memorandum decision addressing various motions for partial and full summary judgment. Plaintiffs subsequently filed a motion seeking the district judge’s certification of the memorandum decision as a final judgment under Kan. Stat. Ann. 60-254(b). The district judge granted the request in a journal entry, determining that “there is no just reason for delay.” Within thirty days of the filing of the court’s journal entry, Plaintiffs then filed their notice of appeal of the adverse rulings. The Court of Appeals dismissed the appeal, ruling that Prime Lending II v. Trolley’s Real Estate Holdings controlled and that the district court had no discretion to retroactively certify the judgment as immediately appealable. The Supreme Court vacated the Court of Appeals’ order dismissing Plaintiff’s appeal, holding (1) a certification of “no just reason for delay” may be made after summary judgment is granted to fewer than all parties or on fewer than all claims; (2) the filing date of the district court order or journal entry memorializing that certification starts the thirty-day appeal clock; and (3) the district judge’s certification of his original decision as an appealable judgment was successful in this case. View "Ullery v. Othick" on Justia Law

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In 2008, Plaintiff settled his negligence case against Defendant. The district court dismissed the litigation for lack of prosecution later that year. More than four years later, Plaintiff filed a motion to set aside the dismissal order, alleging that he never received payment. The district court set aside the dismissal order. Defendant then filed this interlocutory appeal arguing that the district court lacked jurisdiction to set aside the dismissal order because Plaintiff’s motion was untimely under Kan. Stat. Ann. 60-260(c). Defendant did not seek certification for his interlocutory appeal but, instead, argued that a common-law jurisdictional exception permitted an appeal from an order setting aside a final judgment, citing Brown v. Fitzpatrick. The Court of Appeals dismissed the appeal for lack of jurisdiction, concluding that Brown was no longer viable in light of more recent case law from the Supreme Court. The Supreme Court affirmed, holding (1) Brown is overruled to the extent it endorsed a judicially created appeal right in a civil case outside of those created by statute; and (2) Plaintiff’s appeal in this case must be dismissed because it was not brought in accordance with the statute governing interlocutory appeals. View "Wiechman v. Huddleston" on Justia Law

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In the underlying “school finance” case, Shawnee Mission School District No. 512 (U.S.D. 512) filed a motion to intervene. Plaintiffs opposed U.S.D. 512’s entry into that litigation, and the State did not object. The district court panel denied the motion to intervene, concluding that the State adequately represented U.S.D. 512’s interests and that the motion to intervene was untimely. The Supreme Court affirmed, holding that the panel did not abuse its discretion in denying U.S.D. 512’s motion to intervene as a matter of right, as (1) U.S.D. 512’s interests were not adequately represented by the parties in this case; but (2) U.S.D. 512’s motion to intervene was untimely. View "Gannon v. State" on Justia Law

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After a jury trial, Defendant was convicted of premeditated first-degree murder. The Supreme Court affirmed, holding (1) Defendant was not entitled to an instruction on self-defense; (2) the district court did not commit clear error by failing to instruct on second-degree intentional murder; (3) the prosecutor committed misconduct during closing arguments by vouching for the credibility of some witnesses, discussing facts not in evidence, and disparaging the defense, but the statements did not deprive Defendant of a fair trial; (4) the district court did not err in excluding evidence suggesting that a third party might have had a motive to commit the murder; (5) Defendant did not preserve his argument that the district court violated his confrontation rights by limiting cross-examination of a state witness; and (6) the presumed instructional error and the instances of prosecutorial misconduct did not cumulatively deny Defendant a fair trial. View "State v. Knox" on Justia Law

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Plaintiff sued Defendant, seeking determinations related to paternity and custody and an equitable distribution of the parties’ jointly acquired assets. The district court referred the matter to a special master. The court adopted the master’s findings and conclusions and entered judgment on the master’s report without hearing evidence. The judgment included an order that Defendant pay Plaintiff a sum representing the minor child’s unreimbursed medical expenses. The court later entered additional orders, including its decision to make its own determination regarding the unreimbursed medical expenses. Defendant appealed, raising several allegations of error. The court of appeals affirmed and granted Plaintiff’s request for appellate costs and attorney fees. The Supreme Court vacated the judgment of the court of appeals and dismissed the appeal, holding that the district court did not enter a final, appealable order, having left unresolved the unreimbursed medical expenses issue, and therefore, the court of appeals lacked jurisdiction when it affirmed the district court and entered an attorney fees award. View "Kaelter v. Sokol" on Justia Law