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Cooke v. Gillespie

February 1, 2008

POLLY T. COOKE, TRUSTEE OF THE POLLY G. TOWNSEND REVOCABLE TRUST, APPELLANT,
v.
JAMES P. GILLESPIE, EXECUTOR OF THE WARREN B. GILLESPIE ESTATE, APPELLEE.



Appeal from Sedgwick district court, BENJAMIN L. BURGESS, judge.

SYLLABUS BY THE COURT

1. When there is no disagreement over the material facts, an appellate court may review the district court's denial of summary judgment de novo.

2. Before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, the rulings are not properly before the appellate court and may not be considered.

3. Under the facts of this case, the appellee's failure to cross-appeal the district court's denial of her summary judgment motion based upon the statute of limitations precluded the appellate court from considering the issue.

4. While an appellee must present adverse rulings to the appellate court through a cross-appeal, it may present through its appellee brief any matters for affirming the judgment that were raised before, but unaddressed by, the district court.

5. Under the facts of this case, the appellee's failure to raise in her brief her statute of limitations argument--raised before, but unaddressed by, the district court--as an alternate basis for affirming judgment in her favor, also precluded the appellate court from considering the issue.

6. An issue not briefed is deemed waived or abandoned; similarly, a point raised only incidentally in a brief but not argued there is deemed abandoned.

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

Affirmed.

This appeal is the latest in a dispute which has spawned over 20 years of litigation, five prior trips to this court, three to our Court of Appeals, and 5 years of litigation in the United States Bankruptcy Court. The current disagreement arises out of an interpleader action to determine distribution of funds that had been withheld from these parties' lawsuit settlement proceeds in order to pay litigation expenses. Upon reversal and remand from the Court of Appeals, Cooke v. Gillespie, No. 91,078, unpublished opinion filed December 10, 2004, the district court ultimately ordered an equitable distribution: the Townsend Trust was to be paid approximately $33,000 and the Gillespie Estate just over $223,000. The Townsend Trustee (Cooke) appealed, and the Gillespie Executor (Gillespie) cross-appealed. We transferred the case from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).

Cooke argues that Gillespie's claims to the funds under quantum meruit, unjust enrichment, or a common fund theory are barred by the statute of limitations because the claims were raised for the first time 7 years after the settlement funds were to be disbursed.

Gillespie denies that the statute of limitations bars his recovery but, if so, argues that it similarly bars Cooke's recovery.

Our holding is based upon a related consideration: Cooke's statute of limitations argument was not preserved for appeal. Accordingly, the decision of the district court is affirmed.

FACTS

These factions have been involved in disputes since 1987. See Seymour v. Thornton, 79 F.3d 980 (10th Cir. 1996); Gillespie v. Seymour, 272 Kan. 1387, 39 P.3d 61 (2002); Gillespie v. Seymour, 263 Kan. 650, 952 P.2d 1313 (1998); Gillespie v. Seymour, 255 Kan. 774, 877 P.2d 409 (1994); Gillespie v. Seymour, 253 Kan. 169, 853 P.2d 692 (1993); Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991); Cooke v. Gillespie, No. 91,078, unpublished opinion filed December 10, 2004; Gillespie v. Seymour, 19 Kan. App. 2d 754, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994); Gillespie v. Seymour, 14 Kan. App. 2d 563, 796 P.2d 1060 (1990).

A recapitulation of certain facts is necessary to understand the present controversy. Many of the facts, which are undisputed, are taken from the Court of Appeals' unpublished opinion in Cooke v. Gillespie, and from the district court's decision on remand: the nunc pro tunc journal entry of judgment dated February 28, 2006.

In August 1987, Polly Gillespie Townsend sought an accounting of the family trust when certain suspicions arose as to the trustees' management. Originally, an attorney represented Polly on an hourly basis. Later, the other trust beneficiaries, her brother Warren Gillespie and their mother Pauline Gillespie, joined as additional plaintiffs. Shortly after the filing of the litigation, Pauline died and her estate was substituted.

After Pauline's death, an attorney sent a proposed joint contingency fee agreement to Polly which provided for a sliding scale of rates ranging from 35% to 50% based on the stage of litigation in which the case was won. The proposal stated that if there was no recovery, there would be no compensation for services except for the out-of-pocket expenses incurred. Polly signed the agreement after crossing out the provision concerning payment of out-of-pocket expenses in the event of no recovery. The contract did not address recovery of out-of-pocket expenses in the event the litigation was successful.

Upon receiving this contract, the attorney contacted Warren and his son James Gillespie concerning fees and expenses. This consultation resulted in a separate fee agreement between Warren and the attorney. According to this agreement, Warren would advance payment for litigation expenses as they were incurred. However, if the litigation was ...


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