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PATTERSON v. BROUHARD

May 25, 1990.

MAYNARD L. PATTERSON, Appellant,
v.
RICHARD W. BROUHARD, Appellee.



The opinion of the court was delivered by

[246 Kan. 701]

     

Maynard Patterson (plaintiff/appellant) appeals the entry of summary judgment for Richard W. Brouhard (defendant/appellee) in a personal injury action. The district court sustained Brouhard's motion for summary judgment on the theory that Patterson's negligence claim should have been brought as a compulsory cross-claim against Brouhard in the case of John Hoffer Chrysler Corporation v. Maynard L. Patterson and Richard W. Brouhard, a limited actions claim filed in Shawnee County. That case had been dismissed with prejudice at the request of plaintiff John Hoffer Chrysler Corporation.

On March 5, 1986, after vehicles driven by Brouhard and Patterson collided in an intersection, one or both of those vehicles collided with a vehicle owned by John Hoffer Chrysler Corporation (Hoffer). On February 5, 1987, Hoffer filed a limited action against Patterson and Brouhard seeking $775.42 for property damage. Both defendants were served, and the action was set on the limited action appearance docket for March 9, 1987. At the docket call, an attorney entered an appearance for defendant Patterson.

Prior to any formal responsive pleading, based on plaintiff Hoffer's motion, the limited action was dismissed by the court with prejudice on April 13, 1987. Judge Thomas Regan signed the journal entry which stated that "no settlement or compromise exists as to any claims the defendants may have against each other or any third party." Prior to the dismissal of the action, no cross-claim had been filed by Patterson in the limited action for damages caused by Brouhard.

  On February 18, 1988, Patterson filed this action against Brouhard under the Code of Civil Procedure, K.S.A. 60-101 et seq. Brouhard filed an answer on July 25, 1988. Approximately one year later, Brouhard was allowed to amend his answer to assert that Patterson had failed to file a compulsory cross-claim in the prior limited action. On April 5, 1989, Brouhard moved for summary judgment, claiming that Patterson's negligence action was barred as a matter of law because it was not asserted as a cross-claim, in the prior limited action. On June 23, 1989, the district judge, relying on Banister v. Carnes, 9 Kan. App. 2d 133, 675 P.2d 906 (1983), granted summary judgment for Brouhard. Patterson appeals.

[246 Kan. 702]

     

  Banister was a small claims action where a dentist sued his patient for professional fees. In Banister, the trial court entered a default judgment against the former patient when she failed to make an appearance. A year later the patient filed a malpractice action against the dentist. Based on the prior default judgment in small claims court, the dentist moved to dismiss under K.S.A. 61-2705, which provides that defendants in small claims actions "shall file" counterclaims against plaintiffs which arise "out of the same transaction or occurrence." Banister, 9 Kan. App. 2d . at 135. The Kansas Court of Appeals affirmed the trial court's entry of summary judgment based on "the language of the statute" which made the counterclaims compulsory. Banister, 9 Kan. App. at 135. To overcome the harshness of the decision in Banister, the 1990 legislature amended 61-2705 by H.B. 2439, so that a counterclaim exceeding the amount allowed in a small claims action may be filed as a counterclaim in the small claims action or brought in a separate action.

  Patterson contends the district court's reliance on Banister in deciding that the failure to file a compulsory cross-claim in a limited action bars a subsequent suit is misplaced. He argues that the holding in Banister is to be narrowly applied only to compulsory counterclaims in small claims actions; therefore, the Banister rationale should not be extended to cross-claims in a limited action. We agree with the district court's reasoning that, even though Banister involved a small claims counterclaim, the Banister rationale also applied to the failure to file a compulsory cross-claim in a limited action; however, we disagree with the district court's grant of summary judgment.

  Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Danes v. St. David's Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988); Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 400, 729 P.2d 1214 (1986). When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Danes

[246 Kan. 703]

      v. St. David's Episcopal Church, 242 Kan. at 830; Hollingsworth v. Fehrs Equip. Co., 240 Kan. at 401.

  The legislature has provided three separate procedures to resolve civil claims, the Small Claims Procedure Act, K.S.A. 61-2701 et seq.; the Code of Civil Procedure for Limited Actions, K.S.A. 61-1601 et seq.; and the Code of Civil Procedure, 60-101 et seq. The Small Claims Procedure Act provides a simple method for recovery of money or personal property where the value does not exceed $1,000. K.S.A. 1989 Supp. 61-2703. The trial of all small claims actions is to the court, and no party to the action is allowed to be represented by an attorney prior to judgment. K.S.A. 1989 Supp. 61-2707. The Code of Civil Procedure for Limited Actions may be used where the amount in controversy or otherwise claimed as damages, excluding cost and interest, does not exceed $5,000 K.S.A. 61-1603. It allows the parties the right to a six-person jury trial, if requested. K.S.A. 61-1716. Certain specific actions are excluded from the jurisdiction of the Code of Civil Procedure for Limited Actions. K.S.A. ...


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