The opinion of the court was delivered by
This case concerns "jurisdiction." We address the issue by
inquiring: Does a K.S.A. 1989 Supp. 60-2102(a)(4) "final
decision" on the merits require resolution of a request or motion
for attorney fees before filing a timely notice of appeal
pursuant to K.S.A. 1989 Supp. 60-2102 and K.S.A. 1989 Supp.
We conclude that, by answering "no" to this question, the
appellate courts> have jurisdiction to hear this appeal.
Therefore, we reverse the decision of the Court of Appeals.
State Farm Mutual Automobile Insurance Company (State Farm)
appealed from a jury verdict finding that it had wrongfully
denied insurance coverage to Brian Owen, who had been involved in
an automobile accident with Billy Snodgrass. Snodgrass and his
insurer, Automobile Insurance Company of Hartford, Connecticut,
(Hartford) brought this action as assignees and garnishers of
Owen. The trial court entered judgment in favor of Snodgrass and
Hartford and against State Farm in the amount of the $300,000
(the judgment originally obtained by Snodgrass against Owen).
Interest was added resulting in a total judgment of $574,762.30
plus costs. A journal entry of judgment was filed on April 18,
State Farm filed a notice of appeal on April 28, 1988, stating
that it appealed "from the journal entry and order of the court
entered April 18, 1988, to the Court of Appeals of the State of
Kansas." Snodgrass and Hartford filed a notice of cross-appeal on
May 17, 1988, regarding "the trial court's final judgment entered
on the jury's verdict to the extent the trial court refused to
give plaintiffs' requested jury instructions." Snodgrass and
Hartford alleged in their petition that they were entitled to
recover reasonable attorney fees "to be taxed as costs pursuant
to K.S.A. 40-256." They moved the trial court "to tax attorney
fees pursuant to K.S.A. 40-256." The trial court, on May 2, 1988,
awarded attorney fees pursuant to K.S.A. 40-256 in the amount of
$144,000. There was no appeal from the order of attorney fees.
The Court of Appeals issued an order to show cause why this
appeal should not be dismissed for lack of jurisdiction because
the notice of appeal was filed prior to the decision and entry of
judgment on attorney fees. The parties responded with briefs and
argument. In an unpublished opinion filed June 2, 1989, the Court
of Appeals found it had no jurisdiction and dismissed the appeal
without reaching the merits of the numerous issues raised by the
appeal and cross-appeal. The Court of Appeals reasoned that,
because the amount of attorney fees to be awarded had not yet
been determined when the notice of appeal was filed, there
was no final appealable judgment and, consequently, no
jurisdiction. We granted State Farm's petition for review. The
judgment of the Court of Appeals is reversed. We remand to the
Court of Appeals with directions to reinstate both the appeal and
The Court of Appeals concluded that State Farm did not file a
timely notice of appeal because none was filed after the ruling
on the motion for attorney fees. Although neither party raised
the issue, the Court of Appeals had a duty to consider
jurisdiction on its own motion and, if the record disclosed a
lack of jurisdiction, to dismiss the appeal. McArthur v. Glass
King Mfg., Inc., 11 Kan. App. 2d 35, 36, 711 P.2d 774 (1986).
The manner in which the jurisdiction of the Court of Appeals is
invoked is set out at K.S.A. 1989 Supp. 60-2102, which provides
"Invoking jurisdiction of court of appeals. (a) As of
right. Except for any order or final decision of a
district magistrate judge, the appellate jurisdiction
of the court of appeals may be invoked by appeal as a
matter of right from:
. . . .
"(4) A final decision in any action, except in an
action where a direct appeal to the supreme court is
required by law. In any appeal or cross appeal from a
final decision, any act or ruling from the beginning
of the proceedings shall be reviewable.
"(b) Other appeals. When a district judge, in
making in a civil action an order not otherwise
appealable under this section, is of the opinion that
such order involves a controlling question of law as
to which there is substantial ground for difference
of opinion and that an immediate appeal from the
order may materially advance the ultimate termination
of the litigation, the judge shall so state in
writing in such order." (Emphasis added.)
In discussing K.S.A. 1989 Supp. 60-2102(a)(4), Judge Spencer A.
Gard in his text on civil procedure noted that the term "final
decision" is not defined but "is really self-defining. Obviously
it is an order which definitely terminates a right or liability
involved in the action, or which grants or refuses a remedy as a
terminal act in the case." Comments, 2 Gard's Kansas C. Civ.
Proc.2d Annot. § 60-2102 (1979).
In resolving the issue of jurisdiction, we are called upon to
determine whether a K.S.A. 40-256 motion or request for attorney
fees alleged in the petition ...