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Eferakeya v. Twin City State Bank

Supreme Court of Kansas · Civil Procedure

Civil ProcedureDepositionsPersonal JurisdictionK.S.A. 60-232deposition use at trialabsent witnessprocured absencevoluntary absence

Facts

Eferakeya, a Nigerian citizen and resident, sued Twin City alleging wrongful payment of a check from his Kansas bank account. Twin City filed a third-party claim against Manufacturers Hanover Trust Company (MHT), a New York collecting bank, seeking recovery on Uniform Commercial Code warranties if Twin City were held liable. Eferakeya's deposition was taken after repeated travel difficulties, but he did not appear for the rescheduled bench trial and moved to use his deposition in lieu of live testimony under K.S.A. 60-232(a)(3)(B) and (E). The trial court denied use of the deposition on the grounds that it was taken for discovery rather than evidentiary purposes and because Eferakeya failed to appear, and the court also denied MHT's jurisdictional challenge.

Issue

Whether a party who is more than 100 miles from the place of trial or outside Kansas may use his own deposition at trial under K.S.A. 60-232(a)(3)(B), and specifically whether a party's voluntary or unexplained absence counts as absence procured by the offering party. Whether Kansas courts could exercise personal jurisdiction over MHT on the record presented was also before the court.

Rule

Under K.S.A. 60-232(a)(3)(B), a party who resides more than 100 miles from the place of trial or outside Kansas may not use his or her own deposition in lieu of live testimony unless it appears that the party could not be present at trial and that the absence is not due merely to a preference to use the deposition. 'Absence' refers to absence from trial, and absence is 'procured' when it results from an act of will, a voluntary absence, or an unexplained absence. Whether a party procured his or her own absence is a factual determination committed to the trial court's discretion after considering all the circumstances. K.S.A. 60-232 also creates its own hearsay exception for deposition testimony admissible under the statute.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Okafor, who lives in Toronto, sues Prairie Ledger Bank in Wichita. Before trial, Nina tells her lawyer that flying to Kansas would be expensive and inconvenient, so she asks to present only her deposition even though nothing prevents her from attending.

Under the governing rule, should the trial court allow Nina to use her own deposition at trial under the out-of-state/100-mile provision?

Explanation. The majority held that 'absence' means absence from trial, not merely residence outside the state or beyond 100 miles. A party may not use his or her own deposition in lieu of live testimony unless it appears the party could not be present at trial and the absence is not due merely to a preference to use the deposition. Here, Nina's reason is convenience, so the absence is voluntary and effectively 'procured' by her. (Derived from Eferakeya v. Twin City State Bank (n.d.).)