Appeal from Wyandotte District Court; DANIEL A. DUNCAN, judge.
BY THE COURT
Under K.S.A. 60-260(b)(1), the district court may grant relief from a final judgment on the basis of a defendant's excusable neglect. But the defendant must present some reason and some evidence in support of the excusable-neglect claim. Accordingly, a district court abuses its discretion by granting relief from a final judgment based on excusable neglect in the absence of an explanation of what constituted excusable neglect and some evidence to support that claim.
John A. Boyd, of Green, Finch & Covington, Chtd., of Ottawa, for appellant.
Bill L. Klapper, of Kansas City, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ. PIERRON, J., dissenting.
George Garcia obtained a default judgment against his former attorney, Charles Ball, when Ball failed to file an answer to Garcia's lawsuit for more than 4 months. Ball then asked the district court to set aside the default judgment, claiming that his failure to answer the suit had been caused by excusable neglect. The district court granted that motion.
Garcia has appealed, contending that the district court abused its discretion because Ball didn't provide any factual basis to support his excusable-neglect claim. We agree that Ball failed to do so, and we conclude that a district court cannot grant relief from judgment based on excusable neglect when the party seeking relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim. We therefore reverse the district court's judgment setting aside the default judgment previously entered against Ball.
Factual and Procedural Background
Ball represented Garcia in a criminal case in which Garcia was on probation. In a September 2008 hearing in that case, Garcia stipulated that he had violated his probation. The district court revoked his probation and ordered Garcia to serve his underlying prison sentence.
The district court then entered a written order--approved by Ball--that indicated that Garcia would be subject to postrelease supervision for 12 months after his release from prison. That appears to have been in error; Garcia shouldn't have been subject to postrelease supervision at all. See K.S.A. 22-3716(e). That's important because a person who is on postrelease supervision who commits a new felony goes back to prison for whatever remains of the postrelease-supervision period. See K.S.A. 75-5217(c).
Within 2 weeks of the probation-revocation hearing, the Kansas Department of Corrections sent a letter to the sentencing judge, with a copy to Ball, stating that it did not appear that a postrelease-supervision period should have been ordered. Nevertheless, the Department said that it would comply with the court's order.
After Garcia's release from prison--and during the postrelease-supervision period--he committed a burglary. Because Garcia committed the crime while on postrelease supervision, he was covered by a special sentencing rule that required that he serve the remaining portion of his postrelease-supervision term in prison. See K.A.R. 44-6-115c(c).
Garcia says that he contacted Ball, who agreed to have the error in the order requiring postrelease supervision corrected, but that Ball never took any action. Garcia filed a motion on his own in May 2010 seeking to correct the error. Several months later, in February 2011, the district court entered a corrected journal entry saying that Garcia shouldn't have been subject to postrelease supervision. According to Garcia, he was released from prison about a week after the court adopted its corrected order.
Garcia alleges that he spent more than 9 months in prison due to Ball's failure to get the order corrected. Based on that allegation, Garcia brought a legal-malpractice claim against Ball. Garcia filed his petition for damages on May 5, 2011. Docket entries in the district court's file show that the summons and petition were served on Ball on May 17, 2011. Under K.S.A. 2013 Supp. 60-212(a), Ball had to file an answer within 21 days, which would have been June 7, 2011. The district court's docket entries show that a clerk's extension of time was entered June 7, 2011 (clerks may grant a 14-day extension), and an additional order extending the answer date was apparently entered June 20, 2011. That document is not in the record on appeal, so we don't know what it said.
Garcia's attorney said he never received copies of any orders extending the time for Ball to answer, and Garcia filed a motion for default judgment on July 18, 2011. ...