Blissfully Unaware

The Kansas Court of Appeals relieved a party of a dismissal imposed after their attorney had been suspended shortly before a scheduled hearing.

The underlying dispute involved defendant’s failure to repair a skid steer.

Practically speaking, the disciplinary suspension of a lawyer operates to protect the public and the lawyer’s clients. But the unintended consequence or result of that suspension here is that the Stouts were adversely impacted—left suddenly and involuntarily pro se and unaware of an upcoming court hearing. Under all the circumstances, we conclude that justice here is best served by granting relief from the judgment, and we find K.S.A. 2023 Supp. 60-260(b)(6) applies as well. Justice is not served by saddling the Stouts, who were unrepresented and unaware of the motion or the hearing, with the most extreme sanction available—dismissal of their claims with prejudice. Boydston v. Kansas Board of Regents, 242 Kan. 94, 101, 744 P.2d 806 (1987) (“Dismissal with prejudice is a drastic and final action.”). By not considering Malone’s suspension to be material—despite unrefuted evidence that the Stouts had no actual notice of the hearing—we find the district court abused its discretion in denying the Stouts’ motion to set aside the judgment.

Dissent of Judge Green

One of the basic flaws in the majority analysis is that it has fallen prey to the logical fallacy of drawing an affirmative conclusion from a negative premise. Indeed, Aldisert writes that “[b]ecause it is so obvious in the law we seldom encounter the Fallacy of Drawing an Affirmative Conclusion from a Negative Premise.” Aldisert, Logic for Lawyers, pp. 73-74 (3d ed. 1997). For example, the crux of the majority’s holding relies on the affidavits of Joseph Stout and Katelyn Stout d/b/a Stout Construction Co. (the Stouts) where each of them claim: “I was unaware that my case was set for a motions hearing on November 8, 2022.” For example, out of each of their 11-sentence affidavits, the Stouts both used the word “unaware” three times and used the words, “Had I been aware,” twice in each of their affidavits. The majority simply parrots the negative unawareness language of the Stouts’ two affidavits to draw an inference that the Stouts were unaware that the district court was having a hearing on November 8, 2022. The majority’s argument forms the following categorical syllogism:

Major premise: The right to adequate notice in judicial proceedings is a fundamental one, and without such notice, any judgment rendered by the court is void.

Minor premise: The Stouts did not have notice that the district court was having a hearing on November 8, 2022.

Conclusion: Thus, the district court abused its discretion in denying the Stouts’ motion to set aside the judgment.

Statements of successor counsel

I note that Peter Antosh’s email communications with KanEquip’s attorney show that the district court did not err. Antosh responded to KanEquip’s attorney’s email by telling her that he had not worked on the Stouts’ case because he hoped that Malone’s suspension would be over by the time he had to do anything related to their case. An attorney’s admission that he did not work on a client’s case because he had hoped that the client’s former attorney who had been suspended would return from his suspension before he had to work on that client’s case is not excusable neglect. Indeed, why would Antosh believe that the Stouts would have wanted Malone to return as their attorney when they had implicitly accused him in their affidavits that he failed to tell them about the negative things that were occurring in their case? In short, Antosh’s hope runs counter to all reason because it is based on an illusory hope. Thus, it cannot be counted as some other reason justifying the district court to alter its decision. Rather, it is inexcusable behavior and definitive proof that the Stouts’ motion to set aside the district court’s dismissal of their case against KanEquip under K.S.A. 2022 Supp. 60-260(b) was not filed within a reasonable time because of Antosh’s tardiness.

Pro se no excuse

To find comfort in the majority’s pro se litigant holding would eclipse the requirements for a pro se litigants under Kansas Law. The majority’s pro se litigant holding is a result completely at variance with Kansas law. For example, under the majority’s holding, pro se litigants would no longer be required to be aware of or follow the rules of procedure that apply to all civil litigants—pro se or represented by counsel. Because this would be out of step with the current Kansas law standards for pro se litigants, the Stouts should have no other alternative but to have their conduct ranged under the previously cited Kansas law standards for pro se litigants. So, I refuse to water down the present Kansas law standards for pro se litigants to the majority’s ambiguous and arbitrary constructions of those standards.

(Mike Frisch)