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Rector v. Tatham

January 11, 2008

MARY RECTOR, APPELLANT,
v.
CLIFFORD TATHAM, PATRICIA DISQUE, AND RUTH STRICKLAND, APPELLEES.



Appeal from Douglas District Court; JACK A. MURPHY, judge.

SYLLABUS BY THE COURT

1. When a motion to dismiss under K.S.A. 60-212(b)(6) contests the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition.

2. A petition should not be dismissed for failure to state a claim unless, after reviewing the petition in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, that, under plaintiff's pleadings, the plaintiff can prove no set of facts, either under plaintiff's theory or under any other possible theory, in support of plaintiff's claim which would entitle plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

The opinion of the court was delivered by: Green, J.

Reversed and remanded.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

Mary Rector contracted with her siblings that she would receive the remaining funds, if any, used to care for their mother after their mother's death. In consideration of her siblings' promise to turn over these funds to Rector, Rector conveyed her one-half interest in the home she jointly owned with her mother to the conservatorship established for their mother's care. After their mother's death, Rector sued her siblings for breach of contract for failing to turn over the remaining funds. Rector's siblings moved to dismiss Rector's lawsuit, maintaining that her petition failed to state a cause of action against them. The trial court agreed and dismissed the action.

To sustain the trial court's granting of the siblings' motion to dismiss, this court would have to conclude that, under Rector's pleadings, Rector could not produce any evidence justifying some form of relief. We are unable to say with certainty the untenability of Rector's position. As a result, we determine that Rector's petition should not have been dismissed for failure to state a claim. Accordingly, we reverse and remand.

Mary Rector, Clifford Tatham (Tatham), Patricia Disque, and Ruth Strickland are the adult children of Bonnie Tatham (Bonnie). On January 31, 2003, Rector and her attorney attended a mediation session with Tatham, Disque, and Bonnie's attorney, Hatem Chahine. The mediation resulted in an agreement to establish a conservatorship to provide for the care of Bonnie until the end of her life. The relevant portions of the handwritten document dictated during the mediation session stated as follows:

"3. Mary agrees to purchase the home from her mother for $89,000. Mary will assume the existing mortgage and pay her mother $42,900. If Mary cannot raise the $42,900, the home will be placed on the market and sold. The proceeds of sale will be held for [Bonnie].

"6. The parties agree that the conservatorship and its successor arrangement will provide that in the event [Bonnie] dies and funds remain, that the remaining balance will be payable on death to Mary Rector."

The document was signed by all present. Strickland was not present at the mediation and did not sign the document.

On February 18, 2003, Rector, Tatham, Disque, and Chahine appeared before the district court in Douglas County in In the Matter of the Guardianship and Conservatorship of Bonnie L. Tatham (guardianship case). The trial court appointed Tatham as guardian of Bonnie and J. Michael Davies as conservator of her estate. The trial court also referenced the mediated agreement and approved and incorporated it by reference into the court's order.

Following the mediation on January 31, 2003, Rector stated that she performed all of the obligations and duties required by the mediated agreement. The house was sold and the sale proceeds were placed into a conservator's account for the care of Bonnie. After Bonnie's death on August 17, 2003, approximately $50,000 was left in the conservatorship. On November 18, 2003, the trial court in the guardianship case terminated the ...


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