To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived [In re Marriage of Williams, 417 P.3d 1033 (Kan. 2018).]
Benjamin S. Bigham | February 24, 2021 | PDF Version (169 KB)
Summary: In In re Marriage of Williams, the court found an implied waiver of the right to object to personal jurisdiction through a general appearance but failed to articulate any definition for it. The court concluded that a physical appearance by a defendant may constitute a general appearance, but it offered little precedential value for practitioners trying to establish or defend the occurrence of a general appearance that waived a defendant’s right to object to personal jurisdiction. This Comment clarifies what actions by a defendant will constitute a general appearance, thereby waiving the right to object to personal jurisdiction, by consolidating all available Kansas caselaw to create a workable definition for Kansas practitioners moving forward.
Preferred Citation: Benjamin S. Bigham, To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived, 60 Washburn L.J. Online 35 (2021), https://washburnlaw.edu/wljonline/bigham-general-appearance.
I. Introduction
Under section 60-212(b) of the Kansas Statutes Annotated, seven defenses are available to a defendant against whom a complaint is filed.[1] One of those seven defenses is an objection that the court where the complaint was filed lacks personal jurisdiction over the defendant.[2] For any defense raised under section 60-212(b)—including the lack of personal jurisdiction—an assortment of waivers, either express or implied, may take effect as a result of a defendant’s actions.[3] The Kansas Supreme Court, for the first time, explicitly recognized and established that a defendant can impliedly waive the right to object to lack of personal jurisdiction through a general appearance in In re Marriage of Williams.[4] However, the court failed to articulate a specific definition for general appearance to enable other Kansas courts to apply the Williams decision.[5] This Comment will identify how other jurisdictions define general appearance and will provide a clearer definition, based on previous rulings within Kansas, that Kansas courts should use moving forward. By clearly defining general appearance, practitioners will be able to easily identify what actions taken by a defendant constitute a waiver of the right to object to personal jurisdiction in Kansas courts.
II. Background
To explain the significance of the Williams opinion and its effect on potential waivers of the right to a personal jurisdiction objection, the facts of Williams and the importance of the ability to object to the lack of personal jurisdiction are described in Section A. This is followed in Section B by a brief history of what acts generally qualify as a waiver to personal jurisdiction in Kansas and other jurisdictions throughout the United States. Lastly, Section C gives background analysis of the Kansas case law that defines general appearance.
A. In re Marriage of Williams and the Importance of Personal Jurisdiction Objections
In Williams, a man contested the validity of a divorce decree entered against him nearly twenty years prior, which awarded his wife a share of his military benefits.[6] The man, who had not been represented by counsel during the original divorce proceedings, arrived in person with a senior noncommissioned officer to argue his claim.[7] In these proceedings, the man did not raise an objection to personal jurisdiction, either in his answer or in any other court filings, before the court entered its final decree.[8]
When the man’s ex-wife filed a pro se motion nineteen years after the original divorce decree to garnish the retirement funds he had started receiving, the man responded by filing a motion to set aside the award of retirement funds given to his ex-wife.[9] He argued that the court where the original decree was entered years earlier did not have personal jurisdiction over him.[10] Therefore, the very first time he raised an objection to personal jurisdiction occurred nearly twenty years after the original divorce proceeding was resolved.[11] The objection forced the court to decide if the man, through his actions, had impliedly waived his right to object to personal jurisdiction in the original divorce proceedings nearly twenty years earlier.[12]
Any finding of an implied waiver of the right to object to personal jurisdiction through the defendant’s actions expands the potential for future defendants to inadvertently waive this right.[13] For a court to properly obtain personal jurisdiction over a defendant absent a waiver, typically the defendant must either (1) have “minimum contacts” with the state where the court resides[14] or (2) be properly served by the plaintiff while in the state where the court sits.[15] By expanding the waivers to personal jurisdiction requirements, defendants have less of an opportunity to defend themselves, because once a waiver occurs, the defendant is subject to the court’s jurisdiction—regardless of whether the defendant has “minimum contacts” or whether the defendant has been properly served while in the state.[16] This expansion of waivers completely circumvents the protections normally afforded to defendants through this defense and exposes defendants to a higher risk of a court adjudicating their claim, which the court would not have been able to adjudicate without the defendant’s inadvertent waiver of the defense through a general appearance.
B. Waivers to the Right to Object to Personal Jurisdiction
In Kansas, generally, a person impliedly waives the right to object to personal jurisdiction in three different ways: “[1] making a general appearance, [2] by filing a responsive pleading without raising personal jurisdiction as a defense, or [3] by not filing a motion raising the defense.”[17]
However, other jurisdictions differ in how they define the specific actions that constitute a general appearance and, therefore, cause the party to waive the lack of personal jurisdiction objection.[18] For example, consider a former Louisiana statutory definition, provided by the Louisiana Code of Civil Procedure:
[A] party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than: (1) Entry or removal of the name of an attorney as counsel of record; (2) Extension of time within which to plead; (3) Security for costs; (4) Dissolution of an attachment issued on the grounds of the nonresidence of the defendant; or (5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.[19]
Although this statutory definition of a general appearance has been repealed, Louisiana courts continue to recognize the acts enumerated in the repealed statute as a general appearance by a defendant.[20] Louisiana courts also still regularly cite to the repealed statute when evaluating potential implied waivers to the defense of lack of personal jurisdiction resulting from a general appearance.[21]
C. Kansas Case Law
Unlike the former Louisiana statute, Kansas has not statutorily enumerated the meaning of general appearance.[22] The Kansas Supreme Court in Cox v. Pabst Brewing Co. provides one of the only definitions of general appearance hinted at in Kansas, describing a general appearance very broadly and as any of multiple “affirmative action[s],” including a motion to amend summons, the filing of notice for depositions, and even giving bail.[23]
Ultimately, like the court in Cox, Kansas courts have failed to provide a definition of a general appearance that can be applied universally.[24] Creating additional confusion regarding general appearances, some Kansas courts have even used different definitions than the one described in Cox, leaving practitioners with further uncertainty of how to litigate general appearance issues.[25] To alleviate this confusion, a Kansas court could simply enumerate a consolidated definition created from previous Kansas court opinions[26]; doing so would help provide a reliable binding authority for defendants in understanding how they can potentially waive their right to object to personal jurisdiction through a general appearance.
III. Court’s Decision
Of the three implied waivers to the personal jurisdiction objection—making a general appearance, filing a responsive pleading without raising personal jurisdiction as a defense, and not filing a motion raising the defense—the Williams court did not provide a thorough analysis on the second and third implied waivers. In its analysis, the court proceeds to correctly identify that a waiver occurred in the earlier divorce proceedings.[27] The court simply states that, because the man failed to include the defense to personal jurisdiction through any of these mechanisms (i.e., failed to raise it in his responsive pleadings or in any other motion before the court), the right to object to the lack of personal jurisdiction in the present proceeding was impliedly waived through both the second and third of the recognized implied waivers of this defense.[28]
Further, the court looked to Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee to resolve whether a defendant’s physical appearance at a proceeding waives the right to object to personal jurisdiction.[29] Insurance Corporation explained that a defendant’s physical appearance at a court proceeding subjects the defendant to the court’s jurisdiction, impliedly waiving the right to object to personal jurisdiction in the immediate dispute under federal law.[30] The court in Williams then applied the same reasoning and conclusively established that a defendant in Kansas who physically appears at a proceeding impliedly waives the right to object to personal jurisdiction in subsequent proceedings.[31]
The court then analyzed two additional cases, Wagner v. Wagner[32] and Flora v. Flora,[33] to further determine the primary factual issue in Williams, which was whether defendants—who physically appear at an earlier proceeding, fail to raise the defense throughout the proceeding, have a final judgment entered against them, but then raise the defense at a separate and later proceeding enforcing the final decision rendered earlier—have already impliedly waived their right to object to personal jurisdiction in the later proceeding due to their actions in the original proceeding.[34]
Both in Wagner and in Flora, the courts held that a defendant’s physical appearance at an earlier proceeding did not act as a waiver to the right to object to personal jurisdiction in a later proceeding.[35] However, the only reason the physical appearance of the defendants at the earlier proceeding did not constitute a general appearance (and a subsequent waiver of the right to object to personal jurisdiction) was that the issues raised in the new proceeding were not at issue in the earlier proceedings.[36] In other words, although physical appearance by both parties impliedly waived the parties’ rights to object to personal jurisdiction in any proceedings related to the issues resolved in the first proceeding, the defense was not waived in any subsequent proceeding where new issues needed to be resolved.[37] So long as the merits of the later proceeding differ from the earlier proceeding, an independent action by the defendant is necessary to waive the right to object to personal jurisdiction in a later proceeding.[38]
In Williams, the court followed the same logic to conclude the man’s physical appearance at the earlier proceeding (the first proceeding) waived his right to object to personal jurisdiction in the later proceeding (the second proceeding).[39] Because the man arrived physically at the first proceeding against his ex-wife and failed to raise the objection, the court held he had made a general appearance and waived the right to object to personal jurisdiction in the first proceeding.[40] Because the subject matter in the second proceeding involved a dispute over the decree’s award of military benefits to the ex-wife, an issue resolved in the first proceeding, the man had also waived his right to object to personal jurisdiction in the second proceeding through his general appearance in the first proceeding.[41]
Although the court identified that a physical appearance in court is a general appearance and will constitute a waiver of a defendant’s right to object to personal jurisdiction, the court failed to cite or create a Kansas-specific definition for a general appearance for Kansas courts to use in the future.[42]
IV. Commentary
A. General Appearances in Kansas
Although the holding of the court in Williams was likely correct, it offers no help in creating an actual definition for other courts to look to when determining if the defendant made a general appearance.[43] As a result, it is in Kansas’s best interests to adopt the following definition similar to Louisiana’s for what constitutes a general appearance in Kansas:
[A] party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than: (1) Entry or removal of the name of an attorney as counsel of record; (2) Extension of time within which to plead;…[3] Dissolution of an attachment issued on the grounds of the nonresidence of the defendant; or [4] Dismissal of the action on the ground that the court has no jurisdiction over the defendant.[44]
This modified definition incorporates all the same actions that were identified in the original Louisiana definition as not constituting a general appearance, with some exceptions.[45] The modified definition instead includes an act by a defendant for security for costs as one that is a general appearance.[46] Kansas courts should reference this modified Louisiana definition for general appearances for two reasons: the new definition is consistent with Kansas case law for what is considered general appearance, and it promotes judicial efficiency and reliability in resolving issues surrounding whether a defendant made a general appearance.
1. Kansas Case Law Compared to the Modified Definition
To begin, Kansas courts have held that the following actions constitute a general appearance: (1) physical appearance at an earlier proceeding resolving the same issues decided in a present case being litigated,[47] (2) filing a general denial to a complaint,[48] (3) filing an answer to a cross-petition,[49] and (4) filing a motion requiring the plaintiff to clarify their complaint.[50] Further, Kansas courts have held that the following actions do not constitute a general appearance: (1) a motion to dismiss raising objections to personal jurisdiction,[51] (2) a motion for an extension of time to answer,[52] and (3) the entry of general appearance by the defendant’s attorney.[53]
The proposed definition, as applied to any previous Kansas decision, is consistent with Kansas rulings on the same actions qualifying as general appearances. For example, the definition does not constitute the entry of a general appearance by a defendant’s attorney as a general appearance, mirroring Kansas precedent exactly.[54] The modified definition, differing from the Louisiana statute, does not include as an exception for general appearance a defendant seeking security for costs. Other jurisdictions that have resolved this issue without a relevant statute have held that a defendant seeking security for costs constitutes a general appearance.[55] Similarly, Kansas does not have such a statute, so it would be consistent to consider a defendant seeking security for costs as a general appearance.[56] As a result, seeking security for costs would constitute a general appearance under this modified definition, and in Kansas, this would impliedly waive the right to object to personal jurisdiction.
However, the proposed definition identifies an action that has not yet been recognized as an exception to a general appearance in any Kansas precedent.[57] The definition excludes as a general appearance seeking the “[d]issolution of an attachment issued on the grounds of the nonresidence of the defendant.”[58] Jurisdictions that have considered whether to include this in the definition of general appearance have consistently held that it does not constitute a general appearance.[59] Including this as an exception in the definition prevents costly future litigation to reach the same result consistently found in other jurisdictions.[60]
The modified definition does not enumerate a catch-all provision to allow Kansas courts to find more exceptions to general appearance, which is also consistent with precedent.[61] The proposed definition includes broad language analogous to the other definitions used, while still enumerating specific actions that will not constitute a general appearance already recognized in Kansas caselaw.[62]
Therefore, because the modified definition both enumerates all of the actions recognized by Kansas courts that do not constitute general appearance and predicts an additional action that will not constitute a general appearance in Kansas, Kansas courts should adopt it.
2. Efficiency and Predictability
Adopting this proposed definition for a general appearance will promote judicial efficiency and reliability when litigating issues related to general appearances. By providing specific actions that do and do not constitute a general appearance, resolving general appearance issues will be much simpler for Kansas courts.[63] When a defendant files or performs any other judicial action, either by themselves or through their attorney, the court will simply look to the modified definition and make one of two conclusions: first, the action performed by the defendant is not listed in the definition, or second, the action by the defendant is included in the definition as an exception. If the first conclusion is reached, because the definition does not explicitly exempt the action from a general appearance, the court can conclude the defendant has made a general appearance and thus waived the right to object to personal jurisdiction. Alternatively, if the second conclusion is reached, because the action is enumerated in the definition, the defendant did not make a general appearance and has not waived the right to object to personal jurisdiction.
Essentially, adoption of the proposed definition will put defendants on notice of what they can and cannot do to avoid waiving their right to object to personal jurisdiction through a general appearance.[64] Practitioners can advise their clients more effectively and efficiently, and less litigation will occur because the boundaries of the waiver will be express.[65] Ultimately, the more predictable the law is related to general appearances, the less likely defendants will unintentionally waive this right to object to personal jurisdiction and be harmed by mistakes made by either themselves or their attorney.[66]
As a result, because the definition for a general appearance proposed is more predictable, Kansas courts can more effectively and efficiently resolve issues related to waivers of the right to object to personal jurisdiction through general appearances.
V. Conclusion
With a workable definition in place, there will be less confusion and uncertainty related to when a defendant has impliedly waived his right to raise the defense of lack of personal jurisdiction. Because the modified definition of a general appearance is consistent with Kansas case law and would promote judicial efficiency and reliability, Kansas courts should adopt a definition similar to that enumerated in Louisiana. With this definition, Kansas practitioners can better serve their clients and work to ensure that defendants throughout the state do not inadvertently waive this valuable objection when a complaint is filed against them.
1. Kan. Stat. Ann. § 60-212(b) (West, Westlaw through 2020 Reg. and Spec. Sess.). [Return to Text]
2. Id. [Return to Text]
3. See § 60-212; see also In re Marriage of Williams, 417 P.3d 1033, 1036 (Kan. 2018). [Return to Text]
4. Williams, 417 P.3d at 1045. [Return to Text]
5. See generally id. [Return to Text]
6. Williams, 417 P.3d at 1036. [Return to Text]
7. Id. [Return to Text]
8. Id. at 1036–37. Ultimately, the final divorce decree awarded his ex-wife 20 percent of the retirement funds from his military benefits. Id. [Return to Text]
9. Id. at 1037. [Return to Text]
10. Id. [Return to Text]
11. Id. [Return to Text]
12. See id. [Return to Text]
13. See id. [Return to Text]
14. Hanson v. Denckla, 357 U.S. 235, 253 (1958) (“Minimum contacts” may be a single act or multiple “by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”). [Return to Text]
15. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). [Return to Text]
16. See id. [Return to Text]
17. Williams, 417 P.3d at 1046; see Kan. Stat. Ann. § 60-212(b)(2), (h) (West, Westlaw through 2020 Reg. and Spec. Sess.). [Return to Text]
18. Compare Air Mach. Com SRL v. Super. Ct., 112 Cal. Rptr. 3d 482, 487 (Cal. Ct. App. 2010), with Turner v. Leslie, 684 So. 2d 395, 396 (La. 1996), and Gilmore v. Wise Co., 72 Va. Cir. 353 (2006). [Return to Text]
19. Turner, 684 So. 2d at 396 (alteration in original) (quoting La. Code Civ. Proc. Ann. art. 7. (repealed 1997)). [Return to Text]
20. Short v. Short, 912 So. 2d 82, 86 (La. Ct. App. 2005), cert. denied, 925 So. 2d 519 (La. 2006); Ross v. Oak Manor Farms, 769 So. 2d 766, 768 (La. Ct. App. 2000). [Return to Text]
21. See sources cited supra note 20. [Return to Text]
22. No similar statute exists in Kansas law. [Return to Text]
23. Cox v. Pabst Brewing Co., 103 P.2d 871, 873 (Kan. 1940). [Return to Text]
24. Id. [Return to Text]
25. See, e.g., Sharp v. Sharp, 409 P.2d 1019, 1021 (Kan. 1966) (“Broadly speaking, an appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction and is his first act therein.”). [Return to Text]
26. See, e.g., Blue v. Tos, 102 P.3d 1190, 1193 (Kan. Ct. App. 2004); Haley v. Hershberger, 485 P.2d 1321, 1326 (Kan. 1971). In 1971, the Kansas Supreme Court eradicated the need to distinguish between a special appearance and general appearance as the attorney of record when making objections, which renders any definitions used before this year useless. Haley, 485 P.2d at 1326. [Return to Text]
27. In re Marriage of Williams, 417 P.3d 1033, 1045 (Kan. 2018). [Return to Text]
28. Id. [Return to Text]
29. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982). [Return to Text]
30. Id. at 703–04. [Return to Text]
31. Williams, 417 P.3d at 1045. [Return to Text]
32. Wagner v. Wagner, 768 A.2d 1112 (Pa. 2001). [Return to Text]
33. Flora v. Flora, 603 A.2d 723 (R.I. 1992). [Return to Text]
34. Williams, 417 P.3d at 1046. [Return to Text]
35. Id. [Return to Text]
36. Id. [Return to Text]
37. Id. [Return to Text]
38. Id. [Return to Text]
39. See id. at 1047. [Return to Text]
40. See id. at 1046–47. [Return to Text]
41. See id. [Return to Text]
42. See id. [Return to Text]
43. See id. [Return to Text]
44. See La. Code Civ. Proc. Ann. art. 7 (repealed 1997). [Return to Text]
45. Id. [Return to Text]
46. Id. [Return to Text]
47. Williams, 417 P.3d at 1045. [Return to Text]
48. In re Marriage of Powell, 766 P.2d 827, 830 (Kan. Ct. App. 1988). [Return to Text]
49. Id. [Return to Text]
50. Id. [Return to Text]
51. Blue v. Tos, 102 P.3d 1190, 1193 (Kan. Ct. App. 2004). [Return to Text]
52. Lindenman v. Umscheid, 875 P.2d 964, 978 (Kan. 1994). [Return to Text]
53. Williams v. Williams, 367 P.3d 1267, 1274 (Kan. Ct. App. 2016), aff'd sub nom. In re Marriage of Williams, 417 P.3d 1033 (Kan. 2018). [Return to Text]
54. Id. [Return to Text]
55. Id. [Return to Text]
56. See, e.g., Warnock v. Seattle Times Co., 294 P.2d 646, 647 (Wash. 1956) (en banc); see also Short v. Short, 912 So. 2d 82, 86 (La. Ct. App. 2005), cert. denied, 925 So. 2d 519 (La. 2006); see also Bruno v. CDC Auto Transp., Inc., 302 So. 3d 8, 13 (La. Ct. App. 2020). [Return to Text]
57. See, e.g., Williams, 417 P.3d at 1045; In re Marriage of Powell, 766 P.2d 827, 830 (Kan. Ct. App. 1988); Blue v. Tos, 102 P.3d 1190, 1193 (Kan. Ct. App. 2004); Lindenman, 875 P.2d at 978; Williams, 367 P.3d at 1274. [Return to Text]
58. La. Code Civ. Proc. Ann. art. 7 (repealed 1997). [Return to Text]
59. See, e.g., Belknap v. Charlton, 34 P. 758, 759 (Or. 1893); see also Glidden v. Packard, 28 Cal. 649, 651 (1865). [Return to Text]
60. See Williams, 417 P.3d at 1047 (analyzing cases from other jurisdictions). [Return to Text]
61. See Cox v. Pabst Brewing Co., 103 P.2d 871, 873 (Kan. 1940); Sharp v. Sharp, 409 P.2d 1019, 1021 (Kan. 1966). [Return to Text]
62. Compare La. Code Civ. Proc. Ann. art. 7, with Cox, 103 P.2d at 873, and Sharp, 196 Kan. at 40. [Return to Text]
63. See Williams, 417 P.3d at 1047. [Return to Text]
64. See La. Code Civ. Proc. Ann. art. 7. [Return to Text]
65. See Williams, 417 P.3d at 1045; see also In re Marriage of Powell, 766 P.2d 827, 830 (Kan. Ct. App. 1988); Blue v. Tos, 102 P.3d 1190, 1193 (Kan. Ct. App. 2004). [Return to Text]
66. See Jenkins v. City of Topeka, 136 F.3d 1274, 1276 (10th Cir. 1998). [Return to Text]
