Board of Sedgwick County Comm'rs v. City of Park City (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,157

BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, KANSAS,
Appellee,

v.

CITY OF PARK CITY, KANSAS,
Appellant.


SYLLABUS BY THE COURT


1.
The right to appeal is entirely statutory and not a right vested in the United States
Constitution or the Kansas Constitution. Kansas appellate courts have jurisdiction to
entertain an appeal only if the appeal is taken within the time limitations and in the
manner prescribed by the applicable statutes.

2.
If the record shows that an appellate court does not have jurisdiction, it is the duty
of the appellate court to dismiss the appeal.

3.
The appellant's argument that an appellate court may exercise jurisdiction over a
late appeal if the appellant can show unique circumstances, i.e., that the appellant
reasonably relied on some judicial action that purportedly extended the time period for
bringing an appeal, is rejected. An appellate court has no authority to create equitable
exceptions to jurisdictional requirements and, therefore, the use of the unique
circumstances doctrine to save an untimely appeal is illegitimate. Accordingly, Johnson
v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and Schroeder v. Urban,
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242 Kan. 710, 750 P.2d 405 (1988), are overruled to the extent they authorize an
exception to a jurisdictional rule.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 646, 204 P.3d 648 (2009).
Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 9, 2011.
Judgment of the Court of Appeals dismissing in part and affirming in part the district court on the issue
subject to our grant of review is affirmed. Judgment of the district court is affirmed.

Timothy J. Finnerty, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita,
argued the cause, and Ryan D. Weltz, of the same firm, was with him on the briefs for appellant.

Michael L. North, assistant county counselor, argued the cause, and Robert W. Parnacott,
assistant county counselor, was on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: This case involves the determination of whether the unique
circumstances doctrine applies to save the untimely appeal filed by the City of Park City,
Kansas (Park City). The effect of the doctrine's application would be to permit an
appellate court to exercise jurisdiction over a late appeal if the appellant reasonably relied
on some judicial action—an action taking place before the deadline for filing a notice of
appeal—which purportedly extended the time period for bringing an appeal. The Court of
Appeals concluded the doctrine did not save the untimely appeal, and it dismissed the
appeal. Park City filed a petition for review, which this court granted.

The appeal brings into question the continued viability of the unique
circumstances doctrine in situations where it is used to extend a jurisdictional deadline.
This question arises because the United States Supreme Court, in Bowles v. Russell, 551
U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007), rejected the continued use of its own
unique circumstances doctrine when applied to jurisdictional deadlines. Following the
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reasoning of the United States Supreme Court, we conclude the doctrine cannot be used
to extend a statutory deadline that is jurisdictional.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal is from an August 15, 2007, order granting summary judgment to the
Board of Sedgwick County Commissioners (Board) regarding its challenge to the
annexation of certain land by Park City. Five days after the district court filed its journal
entry, Park City requested an extension of time to file a postjudgment motion under two
avenues of relief—K.S.A. 60-259(f) (motion to alter or amend judgment) and K.S.A. 60-
260(b) (relief from judgment). The district court granted Park City's motion and extended
the deadline to August 31, 2007.

On August 30, 2007, Park City asked the district court for another extension. The
court granted the motion and set September 4, 2007, as the new deadline. On that date,
Park City returned to the district court and once again requested additional time in which
to file its postjudgment motion. The district court permitted Park City to have one
additional day for filing. All three motions for extension of time were approved by
counsel for both parties.

Park City filed its motion for postjudgment relief on September 5, 2007. In its
motion, Park City invoked both K.S.A. 60-259(f) and K.S.A. 60-260(b). However, Park
City has not continued to pursue relief under both provisions. Rather, in its petition for
review Park City stated that "an appeal based on K.S.A. 60-260[b], is not a subject of this
petition." Hence, Park City has abandoned all issues related to K.S.A. 60-260(b). See
Supreme Court Rule 8.03(a)(5)(c) (2010 Kan. Ct. R. Annot. 69) ("Issues not presented in
the petition, or fairly included therein, will not be considered by the court.").
Consequently, we will not discuss the parties' arguments or any court rulings relating to
that provision.
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As to the alternative argument, the Board argued to the district court that Park
City's K.S.A. 60-259(f) request for relief was untimely filed because, under the version in
effect at that time, such a motion had to be filed within 10 days after the entry of
judgment and K.S.A. 60-206(b) prohibited the district court from extending this time
period. In reply, Park City argued that the doctrine of unique circumstances should apply
in this case and that the deadline extensions should be honored in light of Park City's
"good faith and reasonable reliance" on the district court's grants of extension.

After conducting hearings on Park City's postjudgment motion, the district court
denied the motion, as memorialized in two written orders, which were filed on February
1, 2008, and February 26, 2008, respectively. With regard to Park City's request to alter
or amend the judgment under K.S.A. 60-259(f), the district court observed that a motion
under K.S.A. 60-259(f) must be filed within 10 days after entry of judgment, and K.S.A.
60-206(b) (regarding enlargement of time) specifically prohibits a district court from
extending this time period. The district court concluded "[t]here is no clear authority from
a Kansas Appellate Court to allow this Court to ignore and find exception to the language
of K.S.A. 60-206(b). To apply the 'unique circumstances doctrine' in this matter is
beyond the authority of the District Court." Thus, despite having granted the extensions
of time, the district court denied Park City's K.S.A. 60-259(f) motion as untimely.

At that point, the 30-day time limitation for filing a notice of appeal had expired.
See K.S.A. 60-2103(a). Nevertheless, Park City filed a notice of appeal and docketing
statement, appealing the summary judgment ruling.

Court of Appeals' Decision

After issuing a series of show cause orders aimed at determining if there was
appellate jurisdiction and considering responses and motions filed by the parties, the
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Court of Appeals issued a decision in which it dismissed the appeal in part for lack of
appellate jurisdiction and affirmed the district court's decision in part. See Board of
Sedgwick County Commr's v. City of Park City, 41 Kan. App. 2d 646, 204 P.3d 648
(2009). As the ruling pertains to Park City's arguments under K.S.A. 60-259(f), the Court
of Appeals dismissed the appeal for lack of jurisdiction.

In doing so, the Court of Appeals discussed the applicable time limitations,
summarized the chronology of procedural events, and concluded it lacked "jurisdiction
over Park City's appeal of the underlying case because it was filed more than 30 days
after the trial court's entry of judgment, which is a jurisdictional requirement that cannot
be waived or forfeited." Board of Sedgwick County Comm'rs, 41 Kan. App. 2d at 650.

The Court of Appeals then considered Park City's argument that the Court of
Appeals should apply the unique circumstances doctrine and find that it had jurisdiction
to determine the merits of the summary judgment order. The Court of Appeals discussed
the history of the unique circumstances doctrine and its subsequent "erosion" that
culminated in Bowles, 551 U.S. 205. The Court of Appeals also questioned the
precedential value of two lead Kansas cases applying the unique circumstances doctrine,
Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and Schroeder
v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), because of their reliance on federal case
law which has since been overruled. Board of Sedgwick County Comm'rs, 41 Kan. App.
2d at 654-58.

However, the Court of Appeals questioned whether this court would reject
application of the unique circumstances doctrine in light of this court's decision in Finley
v. Estate of DeGrazio, 285 Kan. 202, 170 P.3d 407 (2007), where this court discussed
Bowles briefly but still analyzed whether the doctrine applied to the facts of the case. This
led the Court of Appeals to apply the doctrine as stated in Finley. The Court of Appeals
concluded the doctrine did not apply to these facts where "a careful reading of K.S.A.
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2008 Supp. 60-206(b) would have given Park City notice that the trial court lacked
authority to grant an extension of time to file a K.S.A. 60-259(f) motion." Board of
Sedgwick County Comm'rs, 41 Kan. App. 2d at 659.

Park City petitioned this court for review, arguing that the Court of Appeals erred
in dismissing the appeal. Park City contends that the unique circumstances doctrine
should apply to save the appeal. This court granted Park City's petition for review, and
our jurisdiction arises under K.S.A. 20-3018(b).

ANALYSIS

It is this court's longstanding rule that "'the right to appeal is entirely statutory and
not a right vested in the United States or Kansas Constitutions; Kansas appellate courts
have jurisdiction to entertain an appeal only if the appeal is taken within the time
limitations and in the manner prescribed by the applicable statutes.'" Jones v. Continental
Can Co., 260 Kan. 547, 550, 920 P.2d 939 (1996) (quoting Little Balkans Foundation,
Inc. v. Kansas Racing Comm'n, 247 Kan. 180, 188, 795 P.2d 368 [1990]); see Flores
Rentals v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 (2007); Bruch v. Kansas Dept. of
Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 (2006); accord Tobin Constr. Co. v. Kemp,
239 Kan. 430, 437, 721 P.2d 278 (1986). If the record shows that an appellate court does
not have jurisdiction, it is the duty of the appellate court to dismiss the appeal. In re
Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010).

The time for filing a civil appeal is specified in K.S.A. 60-2103(a), which requires
the appeal to be filed 30 days from the entry of judgment. There is one exception to this
requirement that applies "upon a showing of excusable neglect based on a failure of a
party to learn of the entry of judgment." K.S.A. 60-2103(a). Park City does not rely on
this exception. In addition, there is a tolling provision, which states:

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"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] K.S.A. 60-252, . . .
or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter
or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and
amendments thereto." (Emphasis added.) K.S.A. 60-2103(a).

Park City attempted to trigger this tolling provision by filing a motion pursuant to
K.S.A. 60-259(f). To do so in a timely manner, under the version in effect at that time,
the motion had to be "served and filed not later than ten (10) days after entry of the
judgment." K.S.A. 60-259(f). Rather than file the motion in the 10-day time frame, Park
City attempted to extend the time by filing a motion pursuant to K.S.A. 60-206(b), which
grants a judge the discretion to extend any time limitation in the Code of Civil Procedure,
except the court "may not extend the time for taking any action under . . . subsections (b),
(e) and (f) of K.S. A. 60-259 . . . except to the extent and under the conditions stated in
them." There is no provision in K.S.A. 60-259(f) for extensions of time. Consequently,
K.S.A. 60-206(b) did not allow the extension of time on which Park City relied.

Because the extension of time was not statutorily authorized, a domino effect was
triggered: Park City's K.S.A. 60-259(f) motion was not timely, the time for filing an
appeal was not tolled because the tolling was dependent on a "timely" 60-259(f) motion,
and the notice of appeal was untimely because it was not filed within 30 days of
judgment and the running of the 30-day period had not been tolled. At this point, Park
City does not dispute that its notice of appeal was untimely. It relies solely on the unique
circumstances doctrine and asks us to recognize the doctrine's viability and applicability
to this case.


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Unique Circumstances Doctrine—an Exception

Our determination of both the viability and applicability of the unique
circumstances doctrine involves questions of law, over which this court has unlimited
review. See Finley, 285 Kan. at 207; In re Tax Appeal of Sumner County, 261 Kan. 307,
316, 930 P.2d 1385 (1997).

To understand the Court of Appeals' concerns about the continued viability of the
unique circumstances doctrine it is necessary to describe the doctrine's history. The
doctrine was first recognized by the United States Supreme Court in Harris Truck Lines,
Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S. Ct. 283, 9 L. Ed. 2d 261 (1962).
See Bowles, 551 U.S. at 213. In Harris Truck Lines, after the federal district court
dismissed the complaint, the plaintiff asked for and received an extension of time to file a
notice of appeal. The Federal Rules of Civil Procedure, like K.S.A. 60-2103(a), only
allowed an extension of time to file an appeal if the movant could show excusable neglect
based on his or her failure to learn of the entry of the judgment. This exception did not
apply, but Harris Truck Lines (Harris) asked for an extension based on other reasons. The
district court granted an extension, and Harris filed its notice of appeal within the
extended time period.

On appeal, the Seventh Circuit Court of Appeals dismissed the case due to lack of
jurisdiction, concluding the district court did not have the authority to grant the extension
of time. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 303 F.2d 609, 611-12 (7th
Cir. 1962). On review, the United States Supreme Court reversed this holding, despite the
plain language of the federal rule that limited the basis for the extension of time. The
Court stated:

"In view of the obvious great hardship to a party who relies upon the trial judge's finding
of 'excusable neglect' prior to the expiration of the 30-day period and then suffers reversal
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of the finding, it should be given great deference by the reviewing court. Whatever the
proper result as an initial matter on the facts here, the record contains a showing of
unique circumstances sufficient that the Court of Appeals ought not to have disturbed the
motion judge's ruling." (Emphasis added.) Harris, 371 U.S. at 217.

Two years later, the Supreme Court applied the unique circumstances doctrine
again in Thompson v. I.N.S., 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964). In that
case, after the deadline for filing posttrial motions had passed, Thompson served notice
on the government that he would appear before the district court with posttrial motions.
The government made no objection concerning the motions' timeliness, and the district
court ultimately denied Thompson's posttrial motions. On appeal to the Seventh Circuit
Court of Appeals, the government moved to dismiss the appeal because Thompson's
posttrial motions were not timely and, therefore, did not toll the period for filing a notice
of appeal. The Seventh Circuit granted the government's motion to dismiss. Thompson v.
Immigration and Naturalization Service, 318 F.2d 681, 684 (7th Cir. 1963).

The Supreme Court reversed the Seventh Circuit and applied its holding in Harris,
stating:

"The instant cause fits squarely within the letter and spirit of Harris. Here, as
there, petitioner did an act which, if properly done, postponed the deadline for the filing
of his appeal. Here, as there, the District Court concluded that the act had been properly
done. Here, as there, the petitioner relied on the statement of the District Court and filed
the appeal within the assumedly new deadline but beyond the old deadline. And here, as
there, the Court of Appeals concluded that the District Court had erred and dismissed the
appeal. Accordingly, in view of these 'unique circumstances,' [citation omitted,] we grant
the writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals
so that petitioner's appeal may be heard on the merits." Thompson, 375 U.S. at 387.

Following the United States Supreme Court decisions, this court adopted the
unique circumstances doctrine in Schroeder, 242 Kan. 710. There, it was applied to
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permit an untimely appeal in which the delayed filing resulted from (1) the appellant's
good faith and reasonable belief that the judicial action seemingly extending the time for
filing was valid; (2) the perceived extension was for no more than 30 days and was made
and entered prior to the expiration of the official appeal period; and (3) the appellant filed
the appeal within the extension. The Schroeder court held that the reasoning in Harris
and in Stauber v. Kieser, 810 F.2d 1 (10th Cir. 1982) (applying the unique circumstances
doctrine to save an appeal where the district court improperly granted an extension of
time to file a posttrial motion), applied. Schroeder, 242 Kan. at 712-14.

Then, in a case factually similar to Thompson, Stauber, and the present case, this
court again applied the unique circumstances doctrine in Johnson, 243 Kan. 291. There,
the appellant did not timely file its postjudgment motions and therefore the 30-day period
for filing an appeal was not tolled and the notice of appeal was untimely. In applying the
unique circumstances doctrine to save the appeal, the Johnson court quoted extensively
from Schroeder (which included a quotation from Stauber). Johnson, 243 Kan. at 298-
301.

Since the decisions in Schroeder and Johnson, Kansas appellate courts have
sparingly applied the doctrine to provide relief. See, e.g., In re Tax Appeal of Sumner
County, 261 Kan. at 317 (untimely filed petition for reconsideration excused where Board
of Tax Appeals made erroneous statement regarding filing period); Slayden v. Sixta, 250
Kan. 23, 30-31, 825 P.2d 119 (1992) (where 40-day delay in serving summons was
caused by error of clerk of district court); In re Guardianship of Sokol, 40 Kan. App. 2d
57, 61, 189 P.3d 526 (2008) (failure to file the notice of appeal within 30 days of the
journal entry denying motion to alter or amend the judgment was excused); McMillan v.
McKune, 35 Kan. App. 2d 654, 661, 135 P.3d 1258 (2006) (unique circumstances
doctrine applied to render timely inmate's otherwise untimely filing of habeas petition);
In re Marriage of Powell, No. 98,209, 2008 WL 2891080, at *4 (Kan. App. 2008)
(unpublished opinion) (failure to file a timely notice of appeal was excused under the
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unique circumstances doctrine); see also Nguyen v. IBP, Inc., 266 Kan. 580, 587, 972
P.2d 747 (1999) (where filing delay is direct result of an error made in administrative law
judge's office, doctrine "could" be found applicable).

At first glance, the rationale of cases like Harris Truck Lines, Thompson, Stauber,
Schroeder, and Johnson leads to the conclusion that the unique circumstances doctrine
should apply to the facts of this case. In each of these cases, the court clearly focused on
the predicament the appellants found themselves in when they relied on a district court's
action that purportedly tolled or extended the time period for filing a notice of appeal and,
then, based on this reliance, the appellants refrained from filing a notice of appeal until
the correct deadline had passed. This is precisely what happened here. Park City relied on
the district court's action that purportedly extended the time period for filing a post-
judgment motion, and, based on this reliance, Park City waited until the district court
ruled on the postjudgment motion before filing a notice of appeal. By that time, the
statutory deadline for filing a notice of appeal had passed. Yet, our decision is not that
simple because, as aptly noted by the Court of Appeals, "Over time, the legal foundation
upon which Schroeder and Johnson was built has slowly eroded away, making the
precedential value of those two cases questionable at best." Board of Sedgwick County
Commr's, 41 Kan. App. 2d at 656.

Erosion of the Unique Circumstances Doctrine

The erosion began when Stauber, the Tenth Circuit Court of Appeals case that
both the Schroeder and the Johnson courts cited as support for applying the unique
circumstances doctrine, was explicitly overruled by Weitz v. Lovelace Health System,
Inc., 214 F.3d 1175, 1179-80 (10th Cir. 2000). In that case, like this one, the appellant
asked for an extension of time to file a motion pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure. Rule 6 of the Federal Rules of Civil Procedure, like K.S.A. 60-
206, did not allow for this extension and, as a result, the appeal was late.
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In deciding if the unique circumstances doctrine could save the appeal, the Tenth
Circuit overruled Stauber and held the doctrine was limited to situations where it was
reasonable for the appellant to rely on the action taken by the federal district court. Weitz,
214 F.3d at 1178-80. Applying that holding to the facts, the Tenth Circuit concluded: "In
the present case, the rules expressly forbid any extensions for Rule 59(e) motions, and
even a passing reference to the rules will reveal this fact. Consequently, the mere fact that
a court has granted such an extension does not justify reliance that is clearly at odds with
the text of the rules." Weitz, 214 F.3d at 1180.

In this case, the Court of Appeals reached the same conclusion, determining that
Park City could not reasonably rely on the district court's action when the statute
explicitly prohibited the extension. Board of Sedgwick County Commr's, 41 Kan. App. 2d
at 654; cf. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982)
("'Ignorance of the law is no excuse.'"); Flott v. Wenger Mixer Manufacturing Co., 189
Kan. 80, 88, 367 P.2d 44 (1961) (stating that parties in litigation are presumed to know
the law); Miller v. Murdock, 788 P.2d 614, 616 n.2 (Wyo. 1990) ("It is difficult to
understand how a party may reasonably rely on a court's error in applying rules [of civil
procedure] counsel is charged with knowing. . . . [I]gnorance of the rules is neither
reasonable nor excusable . . . .").

Nevertheless, the Court of Appeals also noted that the Tenth Circuit's narrowing of
the doctrine was not the only erosion that occurred. Notably, Harris Truck Lines, the
other case cited by the Kansas cases in Schroeder and Johnson as support for applying
the unique circumstances doctrine, was (along with Thompson) overruled by the United
States Supreme Court in Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d
96 (2007). In Bowles, a federal district judge incorrectly told Bowles that he had more
time to file his notice of appeal than the applicable statute allowed. After Bowles filed an
untimely notice of appeal, the Sixth Circuit Court of Appeals dismissed Bowles' appeal,
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and the Supreme Court affirmed this decision. The Supreme Court reasoned that because
the legislature, within constitutional bounds, limited the jurisdiction of appellate courts to
hear only cases brought within the prescribed statutory period, appellate courts were not
free "to create equitable exceptions to jurisdictional requirements" in order to exercise
jurisdiction over untimely appeals. Bowles, 551 U.S. at 214.

As a result, the Court concluded that the unique circumstances doctrine is no
longer valid and stated: "[G]iven that this Court has applied Harris Truck Lines only once
in the last half century, [citation omitted,] several courts have rightly questioned its
continuing validity. [Citations omitted.] We see no compelling reason to resurrect the
doctrine from its 40-year slumber." Bowles, 551 U.S. at 214. The Court then overruled
Harris Truck Lines and Thompson "to the extent they purport to authorize an exception to
a jurisdictional rule." Bowles, 551 U.S. at 214.

Repercussions in Kansas

How does Bowles impact Kansas cases? As the Court of Appeals pointed out,
numerous pronouncements from this court concerning jurisdiction are consistent with the
view taken by the Bowles Court. See, e.g., Flores Rentals v. Flores, 283 Kan. 476, 481,
153 P.3d 523 (2007) ("Kansas appellate courts may exercise jurisdiction only under
circumstances allowed by statute; the appellate courts do not have discretionary power to
entertain appeals from all district court orders."); Bruch v. Kansas Dept. of Revenue, 282
Kan. 764, Syl. ¶ 1, 148 P.3d 538 (2006) ("Parties cannot confer subject matter
jurisdiction by consent, waiver, or estoppel, nor can parties convey jurisdiction on a court
by failing to object to its lack of jurisdiction.").

Further, the Kansas Legislature clearly provided time limits for the filing of a
notice of appeal, explained a method for tolling that filing period, limited that method to
the filing of a timely motion under certain statutes, such as K.S.A. 60-259(f), and
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removed all discretion from the district court to extend the time in which to file a K.S.A.
60-259(f) motion. See K.S.A. 60-206(b). Hence, there is no basis to distinguish Bowles,
which also dealt with jurisdictional time limits for the filing of a notice of appeal.

Despite that, the Court of Appeals felt there was also some indication that the
doctrine remained viable in Kansas. As previously noted, the Court of Appeals pointed to
this court's decision in Finley, 285 Kan. 202, where this court cited to Bowles but still
considered whether the doctrine applied to the facts of the case. However, the Court of
Appeals failed to recognize the distinction between Bowles, which dealt with a
jurisdictional time limit related to the filing of a notice of appeal, and Finley, which dealt
with a statute of limitations that is a defense related to a nonjurisdictional time limit and
is subject to equitable tolling. See, e.g., Holland v. Florida, 560 U.S. ___, 130 S. Ct.
2549, 2560, 177 L. Ed. 2d 130 (2010) (1-year statute of limitations on petitions for
federal habeas relief by state prisoners is not jurisdictional and is subject to equitable
tolling in appropriate cases); Socha v. Pollard, 621 F.3d 667, 671 (7th Cir. 2010) (order
accepting a habeas filing after the limitations period has run is not beyond the district
court's power; instead, it is effective if it can meet the standards for equitable tolling);
Menominee Indian Tribe of Wisconsin v. U.S., 614 F.3d 519, 523 (D.C. Cir. 2010) (6-
year time limitation in federal Contract Disputes Act of 1978 was not jurisdictional in
nature, as would permit district court to equitably toll limitations period); Diaz v. Kelly,
515 F.3d 149, 153 (2d Cir. 2008) (1-year statute of limitations prescribed by the Anti-
Terrorism and Effective Death Penalty Act of 1996 is a defense, is not jurisdictional, and
is subject to equitable tolling); see also Henderson v. Shinseki, 562 U.S. ___, 131 S. Ct.
1197, 1205-06, 179 L. Ed. 2d 159 (2011) (distinguishing Bowles and concluding that
time limitation for appeal to United States Court of Appeals for Veterans Claims is not
jurisdictional, but not reaching question of whether equitable tolling applies).

In other words, this court's application of the unique circumstances doctrine in
Finley has no application to the consideration of whether the doctrine should or can be
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applied when a time limitation is jurisdictional. Further, we note that the issue of whether
Bowles brought the viability of the doctrine into question in nonjurisdictional settings
was not presented to or decided by the court in Finley.

As previously noted, in contrast to the circumstances in Finley, here we are
dealing with a statute that is jurisdictional and specific in setting the limits of the matters
a Kansas appellate court can hear. As a result, an appellant's failure to file a notice of
appeal in accordance with the time requirements of K.S.A. 60-2103(a) deprives an
appellate court of jurisdiction. We agree with the Bowles analysis that this legislative
limitation is constitutional in the context of civil litigation where application of the
legislatively-imposed deadline does not potentially infringe on another constitutional or
statutory right, such as the right to effective assistance of appointed counsel in a criminal
case. Cf. State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982) (allowing untimely
appeal where ineffective assistance of counsel resulted in lost opportunity for timely
appeal of criminal conviction; remedying loss of constitutional right to effective
assistance of counsel); see also Kargus v. State, 284 Kan. 625, 645-46, 162 P.3d 818
(2007) (allowing untimely appeal where ineffective assistance of counsel resulted in lost
opportunity for filing of timely petition for review in appeal of criminal conviction;
remedying loss of statutory right to effective assistance of counsel).

Consequently, we reject Park City's argument that the unique circumstances
doctrine saves its appeal. As stated in Bowles, "Because this Court has no authority to
create equitable exceptions to jurisdictional requirements, use of the 'unique
circumstances' doctrine is illegitimate." Bowles, 551 U.S. at 214. Accordingly, we
overrule Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and
Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), to the extent they authorize an
exception to a jurisdictional rule.

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As a result, there is no appellate jurisdiction over the merits of Park City's
contention that it was entitled to relief from the district court's summary judgment ruling
under K.S.A. 60-259(f).

Affirmed.

ROBERT J. SCHMISSEUR, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art.
3, § 6(f) of the Kansas Constitution, Judge Schmisseur was appointed to hear case No.
100,157 to fill the vacancy on the court created by the retirement of Chief Justice Robert
E. Davis.