Santee v. North , 223 Kan. 171 ( 1977 )

Miller, J.,

dissenting: I respectfully dissent from the conclusion reached by my distinguished associates. The majority concede that appellee’s claim was adequately supported by substantial evidence. The criteria of Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955, cited in the majority opinion, was met.

The transcript discloses that appellant did not ask leave to recall Mr. Johntz to the witness stand, and did not seek to cross-examine him. He did not propose to offer any expert testimony as to the value of the services rendered. Appellant sought only to review and criticize each pleading filed by Johntz on behalf of the appellee, and to state objections thereto. I do not think that the trial court abused its discretion in proceeding to determine the matter without such a critique. Appellant had ample opportunity to voice his criticism of the services rendered during the hearing (which occupies some 29 pages in the transcript) without going through the pleadings page by page, item by item, and line by line. He did not choose to disclose his objections below, and I see no reason why he should now be given another opportunity to do so. The trial court offered to review the appellee’s file, but that offer was rejected. What appellant sought was extended oral argument, not the introduction of evidence. Under the circumstances, the trial court did not act unreasonably in curtailing further argument.

The trial court was advised of the nature of the proceedings in the federal court, the issues attempted to be raised, the time counsel spent preparing pleadings, the pleadings filed, and the ultimate rulings in the action. As required by Palmer, supra, the evidence established . . the nature of the services . . . performed and the professional time and effort . . . expended . . .”

For the reasons stated, I would affirm.

Holmes and McFarland, JJ., join in the foregoing dissenting opinion.