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Hollister v. Heathman

Court of Appeals of Kansas

March 6, 2015

ROGER HOLLISTER (REBECCA HOLLISTER), Appellant,
v.
JAMES HEATHMAN, Appellee

Appeal from Shawnee District Court; LARRY HENDRICKS, judge.

Reversed and remanded.

SYLLABUS

BY THE COURT

1. The reasonable time period for filing a motion for substitution under K.S.A. 2013 Supp. 60-225(a)(1) starts when a party or a decedent's successor or representative properly serves a suggestion of death on the record.

2. The relevant time period for determining the reasonableness of a delay in substituting a party under K.S.A. 2013 Supp. 60-225(a)(1) commences with the proper service of the statement noting death and ends with the filing of the motion for substitution.

3. A trial court abuses its discretion when it incorrectly calculates the relevant time period for determining the reasonableness of a delay in substituting a party under K.S.A. 2013 Supp. 60-225(a)(1).

Rebecca Hollister, appellant, Pro se.

Brian A. Tillema, of Lee's Summit, Missouri, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

OPINION

Page 391

GREEN, J.

Roger Hollister sued his former attorney, James Heathman, for legal malpractice under the Kansas Consumer Protection Act. Following Roger's death, Heathman filed a suggestion of death with the trial court. Shortly afterward, Heathman moved to dismiss for failure of Roger's successor or representative to substitute a party within a reasonable time after the service of the statement noting Roger's death. The trial court ultimately granted Heathman's motion to dismiss for failure to substitute a party within a reasonable time. In her pro se brief, Rebecca Hollister, Roger's wife, argues that because she was not properly served with [51 Kan.App.2d 235] the notice of suggestion of death, the trial court abused its discretion when it granted Heathman's motion to dismiss for failure to substitute a party within a reasonable time. Finding merit in Rebecca's argument, we reverse and remand this matter for further proceedings.

Roger Hollister brought a pro se legal malpractice action under the Kansas Consumer Protection Act against his former attorney, James Heathman. On March 20, 2013, while his action was still pending, Roger died. Heathman's attorney filed a suggestion of death in the trial court on March 27, 2013. Heathman's attorney also served the suggestion of death on the former attorney of Rebecca Hollister, Roger's wife, on March 27, 2013. On April 21, 2013, Heathman moved to dismiss the malpractice action, without prejudice, because Rebecca had failed to substitute a party after the death of her husband. Similar to the suggestion of death pleading, Heathman's attorney also served the motion to dismiss on Rebecca's former attorney. On May 1, 2013, Rebecca wrote the trial judge a letter. This letter is not included in the record. The trial judge's response to Rebecca's letter, however, is included ...


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