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March 23, 1990.


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. 60-2103?

[246 Kan. 372]

      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, 1988.

  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 In an unpublished opinion filed June 2, 1989, the Court of Appeals found it had no jurisdiction and dismissed the appeal without reaching the merits of the numerous issues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

[246 Kan. 373]

      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 cross-appeal.


  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 in part:
"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 ...

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