Thomas v. Davis-Moore Datsun, Inc.

Meyer, J.: On September 21,. 1982, David Thomas filed suit against Davis-Moore Datsun, Inc., (Davis-Moore) and Nissan Motor Corporation (Nissan), alleging violations of the Kansas Consumer Protection Act, breach of the implied warranty of merchantability, and fraud in connection with Thomas’ purchase of an automobile from Davis-Moore. The district court awarded plaintiff damagés and attorney fees and ruled that the award “be borne equally by the defendants.” Nissan appealed the judgment, and a panel of this court reversed the trial judge’s determination that Nissan was liable to Thomas under the KCPA. The mandate was filed with the Cleric of the Sedgwick County District Court on April 30, 1985. On December 21, 1983, while Nissan’s appeal was pending, Thomas filed a Partial Satisfaction of Judgment with the Clerk of the Sedgwick County District Court. According to the document, Davis-Moore had partially satisfied its obligation to Thomas. The document stated, “The only obligation that remains unsatisfied at this time is for further damages that may become the obligation of Davis-Moore due to the appeal of a portion of the judgment by the defendant Nissan Motor Corporation.” On May 9, 1985, Thomas filed a motion for an order nunc pro tunc, attempting to correct the July 19, 1983, journal entry to reflect the defendants’ joint and several liability for the judg [623] ment. In reply, Davis-Moore alleged that it withdrew from the Nissan appeal because it believed that its liability was limited to the amount reflected in the July 19, 1983, journal entry. The district court denied Thomas’ motion by letter decision July 25, 1985, and Thomas appeals. Before we reach the merits of Thomas’ appeal, we must first determine if this court has jurisdiction to hear it. On some unspecified day within ten days following the filing of the July 25, 1985, journal entry, Thomas made an oral motion for reconsideration. Thomas contends, and Davis-Moore apparently agrees, that this oral motion for reconsideration was made. Thomas further contends that, since the motion for reconsideration was denied December 17,1985, and the notice of appeal was filed January 3, 1986, this court has jurisdiction over the instant appeal. We disagree. K.S.A. 60-2103(a) provides in part: “When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment .... The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.” This court has ruled that, “A motion to reconsider is in substance, if not form, a motion to alter or amend under K.S.A. 60-259(f) and stays the time for appeal until ruled on by the court.” Caplinger v. Carter, 9 Kan. App. 2d 287, Syl. ¶ 1, 676 P.2d 1300, rev. denied 235 Kan. 1041 (1984). K.S.A. 60-2103(a) does not specifically state that a post-trial motion which tolls the time for appeal must be in writing; rather, the statute refers to a “timely motion made pursuant to any of the rules hereinafter enumerated.” However, a review of the statutory provisions, set out above indicates that, as a general rule, written post-trial motions are [624] contemplated. Briefly, K.S.A. 60-250(b) and K.S.A. 60-252(b) require that a party merely make amotion. In turn, K.S.A. 60-207 requires written motions unless the motion is made during a hearing or trial. K.S.A. 60-259(b) and (f) require that the respective motions be served. In addition, a motion pursuant to K.S.A. 60-259(f) must be filed. The language in K.S.A. 60-205 discussing “service” and “filing” implies a written motion. For instance, it seems improbable that one could serve an oral motion by hand delivery, mail, or depositing the motion with the clerk of the court unless perhaps the oral motion was tape recorded. Finally, the statutory provisions concerning “filing” specifically refer to papers. K.S.A. 60-205(d) and (e). See also City of Overland Park v. Nikias, 209 Kan. 643, 647, 498 P.2d 56 (1972) (“The word Tile’ contemplates the deposit of a writing with the proper official.”). Statutory construction aside, there are other reasons for requiring that a post-trial motion be in writing. The absence of a written motion filed pursuant to either K.S.A. 60-205(d) or (e) leaves this court without the ability to make an independent determination when the motion for reconsideration was made. Rather, this court is forced to rely on the trial court’s finding that the oral motion was timely. Since the timeliness of the motion for reconsideration is pivotal to the timeliness of the instant appeal, mere acceptance of the trial court’s finding is questionable in light of this court’s duty to raise the question of jurisdiction on its own motion. Dinkel v. Graves Truck Line, Inc., 10 Kan. App. 2d 604, Syl. ¶ 1, 706 P.2d 470 (1985). We hold that a post-trial motion to alter or amend a judgment must be in writing. If the motion is not written, it is not effective to toll the time for appeal pursuant to K.S.A. 60-2103(a). Accordingly, Thomas’ oral motion for reconsideration was ineffective to toll the time for appeal. The record indicates that the journal entry denying the motion for an order nunc pro tunc was filed July 25, 1985, and that the notice of appeal was filed on January 3, 1986. As a result, this court is without jurisdiction to hear an appeal from the July 25, 1985, order. See generally Kittle v. Owen, 1 Kan. App. 2d 748, 573 P.2d 1115 (1977). Appeal dismissed.