Bethany Medical Center v. Niyazi

890 P.2d 349, 20 Kan. App. 2d 464, 1995 Kan. App. LEXIS 17
CourtCourt of Appeals of Kansas
DecidedFebruary 3, 1995
DocketNo. 71,247
StatusPublished
Cited by1 cases

This text of 890 P.2d 349 (Bethany Medical Center v. Niyazi) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethany Medical Center v. Niyazi, 890 P.2d 349, 20 Kan. App. 2d 464, 1995 Kan. App. LEXIS 17 (kanctapp 1995).

Opinion

Brazil, J.:

Samir Niyazi appeals the judgment against him for his wife’s medical treatment. He argues that the trial court abused its discretion in denying his motion for continuance, in denying his motion to file an answer out of time, and in striking his amended answer. He also contends there is not substantial competent evidence to support the judgment. We affirm.

Joyce Niyazi received treatment at Bethany Medical Center on two separate occasions in August and September 1985. The bill for both hospital stays was $45,418.56. The Niyazis made payments totaling $90, reducing the amount due to $45,328.56.

Niyazi argues that the trial court erred in denying his motion for continuance.

“The ruling on a motion for continuance is discretionary with the trial court, and an order denying a motion for continuance will not be disturbed on appeal unless there is a clear showing of an abuse of discretion. An abuse of discretion
[465]*465for failure to grant a continuance exists only when no reasonable man would take the view adopted by the trial court.” Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981).

Niyazi fails to show how the trial court’s decision constituted an abuse of discretion. The January 10, 1994, trial date was set at a discovery conference on October 29, 1993. Niyazi’s attorney was present. On Friday, January 7, 1994, Niyazi moved for a continuance. The motion stated Niyazi’s attorney would be otherwise engaged in state court on January 10 and, in any event, the trial could not begin because Niyazi’s motion for summary judgment had not been noticed for hearing and the trial could not start prior to a decision on the summary judgment motion.

The court spoke with a member of the law firm representing Niyazi on January 7 and told him that the trial would go on as scheduled. Niyazi’s attorney rescheduled the conflicting court date but realized that he had a third conflict in the form of argument scheduled before the Eighth Circuit on the same day. Niyazi’s attorney did not attend the January 10, 1994, trial. The attorney sent another member of his firm in his place, but the substitute attorney was not licensed to practice in this state. Niyazi, though subpoenaed, did not attend the trial.

Niyazi had more than two months between the discovery conference and the trial to resolve scheduling conflicts and instead waited until the last business day prior to trial. The trial court did not abuse its discretion in refusing to grant a continuance.

Niyazi argues on appeal that the trial court erred in denying his motion to file an answer out of time. He was not present to raise this argument at trial. An issue not raised before the trial court may not be considered on appeal. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991).

Even if this court were to reach this issue and conclude that the trial court abused its discretion in denying the motion to file an answer out of time, it would have little bearing on the issues in this case. The trial court addressed the issues of whether Bethany pursued collection of the money from Joyce and whether Joyce had the resources to pay the debt herself. These are Niyazi’s [466]*466only substantive issues on appeal. The balance of the issues raised in Niyazi's answer were effectively abandoned by his absence at trial.

Niyazi does not pursue the issue of the trial court's decision to strike his amended answer. This court will not consider issues not supported by argument or authority. Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991).

Niyazi next argues that the trial court erred in finding that Bethany pursued payment of the hospital bill from Joyce. He argues that under St. Francis Regional Med. Center, Inc. v. Bowles, 251 Kan. 334, 836 P.2d 1123 (1992), Bethany was required to obtain a judgment against Joyce and make an attempt to collect that judgment prior to pursuing collection of the bill from him. This presents a question of law over which this court has unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

In Bowles, the Kansas Supreme Court held that the common-law doctrine of necessaries then recognized in Kansas violated the Equal Protection Clause. The court expanded the doctrine to apply to husbands and wives equally. 251 Kan. at 340-41. The court closed the opinion with the following language:

“However, before a creditor may seek payment from a spouse the creditor must first pursue collection from the person who received the necessary goods or services. Only if the spouse who received the benefits has insufficient resources to satisfy the debt may the other spouse be hable. Such liability is not automatic; the second spouse may raise any defenses available.” 251 Kan. at 341.

Niyazi argues that this language requires the creditor to obtain a judgment against the benefitting spouse and unsuccessfully attempt collection of the judgment prior to pursuing collection from the non-benefitting spouse. There is no indication that the Bowles court intended this meaning.

In Bowles, the court borrowed the requirement that a creditor must pursue collection from the benefitting spouse and find that the spouse has insufficient funds to pay the debt from two out-of-state cases: Jersey Shore, Etc. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980), and Webb v. Hillsborough Cty. Hosp. Auth., 521 So. 2d 199 (Fla. Dist. App. 1988). An examination of theses cases is helpful to our analysis.

[467]*467The court in Jersey Shore held that “a judgment creditor must first seek satisfaction from the income and other property of the spouse who incurred the debt. If those financial resources are insufficient, the creditor may then seek satisfaction from the income and property of the other spouse.” 84 N.J. at 141. A judgment creditor is “[a] person in whose favor a money judgment has been entered by a court of law and who has not yet been paid.” Black’s Law Dictionary 844 (6th ed. rev. 1990). The language in Jersey Shore contemplates that a creditor first obtain a judgment and attempt to collect on it.

In Webb, the Florida court cited Jersey Shore and held that a husband and wife are responsible for necessary goods or services provided to the other. 521 So. 2d at 202. The court also created the requirement that “for purposes of pleading and proof by a creditor, a showing that the spouse to whom necessaries were provided is unable to pay therefor shall be a condition precedent to the liability of the other spouse for the necessaries.” 521 So. 2d at 204.

The Bowles

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Bluebook (online)
890 P.2d 349, 20 Kan. App. 2d 464, 1995 Kan. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethany-medical-center-v-niyazi-kanctapp-1995.