Thomas v. Davis-Moore Datsun, Inc.

Rees, J.,

concurring: While I agree with the majority’s decision to dismiss this appeal, I choose to separately state my view.

*625This case originated against Davis-Moore Datsun, Inc., a new car dealer in Wichita, and Nissan Motor Corporation, a new car distributor. Nissan had sold a new Datsun 280ZX to Davis-Moore who, in turn, sold it to Thomas. Shortly after taking delivery, Thomas discovered previously undisclosed damage to the car sustained while in transit from Nissan to Davis-Moore and related repair work performed by Davis-Moore. Thomas brought suit.

According to the journal entry of judgment filed July 19, 1983, following a nonjury trial, Thomas was granted judgment for him “to receive as damages the sum of $2,000.00 from the defendants as provided under the Kansas Consumer Protection Act [KCPA],” “reasonable attorney’s fees of $3,500.00 and costs of $64.55 from defendants, due to successful outcome of plaintiff s claim under the [KCPA],” and “$2,260.00 from defendants for their breach of the implied warranty of merchantability.” The journal entry of judgment further recites that “all damages, attorney’s fees and expenses awarded to plaintiff are to be borne equally by the defendants.”

This case has been before us previously. A panel held on appeal by Nissan that Nissan did not violate the KCPA. (Thomas v. Davis-Moore Datsun, Inc., No. 56,284, unpublished opinion filed March 21, 1985, mandate filed April 30, 1985.) Thus, it has been determined that Nissan has no liability to satisfy any part of either of the two judgments in favor of Thomas that were entered under the KCPA.

Davis-Moore paid one-half of each of the three judgments. We were told at oral argument that Nissan paid one-half of the implied warranty judgment. Since resolution of Nissan’s appeal, the practical question confronting Thomas has been whether payment of the unsatisfied half of the two KCPA judgments can be obtained from Davis-Moore.

On May 9, 1985, nine days after the Nissan appeal mandate was filed, Thomas filed a motion for an order nunc pro tunc to correct the July 19,1983, journal entry of judgment to recite joint and several liability of Davis-Moore and Nissan for satisfaction of the three judgments. By letter decision dated July 24, 1985, and written order filed July 25, 1985, the trial court denied the nunc pro tunc motion. Thomas has appealed.

*626Thomas asserts, and Davis-Moore agrees, that on some unspecified day within ten days following the denial of his nunc pro tunc motion, he made an oral motion to the trial court to reconsider. On December 17, 1985, the motion to reconsider was heard and a written order denying it was filed. This last order of the trial court recites that Thomas’ motion to reconsider was made “in a timely manner.”

Thomas’ notice of appeal was filed January 3, 1986, some five months after denial of his nunc pro tunc motion and seventeen days after his motion to reconsider was denied.

The majority has not addressed the merits of Thomas’ nunc pro tunc motion. I agree that that need not be done. (The record before us reveals some basis for the relief Thomas sought by his motion. For example, the trial court’s July 24, 1985, letter decision says in part that “[i]f the requested order had been properly entered in the first instance, defendant could have made it the subject of a cross-appeal.”) Dispositive of this appeal is the conclusion of the majority and myself that we must dismiss for lack of jurisdiction. Appellate jurisdiction is not affirmatively shown by the record on appeal.

K.S.A. 60-2103(a) pronounces the general rule that “the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment.” The statute then sets forth an exception to the general rule by designating circumstances under which an appeal may be perfected by filing a notice of appeal more than thirty days “from the entry of the judgment.” The exception to the general rule applicable to the case at hand is stated in this language:

“The running of the [thirty-day] time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full [thirty-day] time for appeal . . . commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: . . . granting or denying amotion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact . . .; or granting or denying a motion under K.S.A. 60-259[f] to alter or amend the judgment . . . .”

Accepting the July 25, 1985, denial of Thomas’ nunc pro tunc motion as a judgment from which an appeal may be taken pursuant to K.S.A. 60-2103(a), it is clear that Thomas’ notice of appeal filed more than five months later was tardy unless the *627filing of the motion to reconsider brought this appeal within the statutory exception.

The exception language of K.S.A. 60-2103(a) does not toll the time for taking an appeal. It provides that a timely filed motion for post-trial relief under one of the enumerated statutory sections or subsections operates to terminate the running of the thirty-day time and the running of the thirty-day time commences to run and is to be computed from entry of the trial court’s order granting or denying the motion.

Purportedly, Thomas, “in a timely manner, made an oral motion for reconsideration.” That is what the trial court found according to its December 17, 1985, order. Whether that is true and upon what that finding by the trial court was based is nowhere to be found in the record on appeal.

A motion to reconsider is not one of the motions enumerated in K.S.A. 60-2103(a). I know of no reference in Chapter 60 to a motion to reconsider. By reliance upon the principle that substance should prevail over form, there are instances in our case law where motions to reconsider have been deemed to be motions to alter or amend under K.S.A. 60-252(b) or K.S.A. 60-259(f). See, e.g., Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922 (1966). Despite what is said in Caplinger v. Carter, 9 Kan. App. 2d 287, Syl. ¶ 1, 676 P.2d 1300, rev. denied 235 Kan. 1041 (1984), I do not find that our case law has gone so far as to judicially amend K.S.A. 60-2103(a) to include all motions to reconsider within its exceptions. See 9 Kan. App. 2d at 290.

K.S.A. 60-207(b)(l) states:

“An application to the court or judge for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.”

The record on appeal and the brief conclusively establish that Thomas’ motion to reconsider was neither made in writing nor during a hearing or trial. The result is that there is nothing of record showing compliance with K.S.A. 60-207(b)(1). More importantly, the result is that there is nothing of record to support the trial court’s finding that Thomas timely moved for reconsideration.

“[T]he right to an appeal ... is neither a vested nor constitutional right, but is *628strictly statutory in nature. It may be limited by the legislature ... in any manner, or it may be withdrawn completely.” Szoboszlay v. Glessner, 233 Kan. 475, 477, 664 P.2d 1327 (1983).
“Parties may not by mutual consent, or by failure to object, confer jurisdiction on an appellate court which it cannot under admitted facts and circumstances, legally acquire.” Western Light & Telephone Co. v. Toland, 177 Kan. 194, 196, 277 P.2d 584 (1954).

For there to be jurisdiction for appellate review of the denial of Thomas’ nunc pro tunc motion, compliance with the K.S.A. 60-2103(a) time requirements was essential. That compliance is not shown by the record.

Thomas’ notice of appeal was not filed within thirty days from the filing of the order of denial on July 25, 1985. Necessary to application of the exception to the thirty-day limitation of K.S.A. 60-2103(a) is a timely post-trial motion which complies with the K.S.A. 60-207(b)(1) requirement that the post-trial motion be asserted either in writing or on the record in open court. (K.S.A. 60-207[b][1] says “unless made during a hearing or trial, [a motion] shall be made in writing”). It is not shown by the record that within ten days from July 25, 1985, a motion was made in writing or on the record in open court and as otherwise prescribed by K.S.A. 60-252(b), or that a motion was served and filed and as otherwise prescribed by K.S.A. 60-259(f).

Had Thomas’ motion to reconsider been made in writing or on the record in open court, the fact that that action was taken, and the date thereof, would be of record; there would exist a showing of record to support the trial court’s finding that such a motion was timely filed. With Thomas’ motion to reconsider appearing neither in writing nor of record in open court, the record does not show compliance with K.S.A. 60-207(b)(l) and either K.S.A. 60-252(b) or K.S.A. 60-259(f). Thomas’ entitlement to appellate review is not shown. The appeal must be dismissed.