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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,817

GEORGE MICHAEL GARCIA,

Appellant, 

v.

CHARLES BALL,

Appellee.

SYLLABUS BY THE COURT

1.

K.S.A. 60-255(b) provides that a default judgment may be set aside for any of the 

grounds listed in K.S.A. 60-260(b). The six subsections, K.S.A. 60-260(b)(1)-(6), contain 

reasons for which the court may relieve a party of a default judgment, with subsection 

(b)(1) containing "excusable neglect" as a reason and subsection (b)(6) being a catch-all 

provision permitting a court to set aside a default judgment for "any other reason 

justifying relief."

2.

So long as a defaulting party is not attempting to circumvent the 1-year time limit 

applicable to claims for relief based on the reasons in the first three subsections, K.S.A. 

60-260(b)(1)-(3), the defaulting party may specify more than one ground for relief, 

including the catch-all provision of K.S.A. 60-260(b)(6).

3.

The law disfavors default judgments, especially in matters involving large sums of 

money, and a court should resolve any doubt in favor of a motion to set aside a default 

judgment so that cases may be decided on their merits. Specifically, K.S.A. 60-260(b)(6) 
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is to be liberally construed to preserve the delicate balance between the conflicting 

principles that litigation be brought to an end and that justice be done in light of all the 

facts.

4.

The exoneration rule applicable to a criminal defendant's claim that his or her 

attorney's legal malpractice resulted in the defendant serving an illegal sentence requires 

the defendant to obtain post-sentencing relief from the illegal sentence, but the rule does 

not require the defendant to prove that he or she was innocent of the crime for which the 

illegal sentence was imposed.

5.

For a legal malpractice claim based upon an illegal sentence, the cause of action 

accrues, and the statute of limitations begins to run, when the criminal defendant obtains 

court-ordered post-sentencing relief from the illegal sentence.

Review of the judgment of the Court of Appeals in 50 Kan. App. 2d 197, 323 P.3d 872 (2014).

Appeal from Wyandotte District Court; DANIEL A. DUNCAN, judge. Opinion filed December 31, 2015. 

Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is 

affirmed in part, reversed in part, and remanded with directions.

John Arthur Boyd, of Green, Finch & Covington, Chtd., of Ottawa, argued the cause and was on 

the brief for appellant. 

John Ivan, of Shawnee Mission, argued the cause, and Bill L. Klapper, of Kansas City, was on the 

brief for appellee.
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The opinion of the court was delivered by

JOHNSON, J.: George Michael Garcia retained criminal defense attorney, Charles 

Ball, to represent him in a probation revocation proceeding. The district court accepted 

Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to 

the custody of the Kansas Department of Corrections to serve his originally imposed 

prison term. But the journal entry of sentencing erroneously directed that Garcia was 

subject to postrelease supervision following his probation revocation, which error 

ultimately led to Garcia serving more time in prison than his original sentence.

Garcia sued Ball, alleging legal malpractice. When Ball failed to answer the 

petition, Garcia notified Ball of the amount of claimed damages and obtained a default 

judgment. The district court subsequently set aside the default judgment but ultimately 

dismissed the lawsuit because Garcia had not established his innocence under the 

exoneration rule, as set forth in Canaan v. Bartee, 276 Kan. 116, 123, 72 P.3d 911, cert. 

denied 540 U.S. 1090 (2003).

Garcia appealed, and the Court of Appeals reversed, finding that the district court 

had erred in setting aside the default judgment for excusable neglect under K.S.A. 60-

260(b)(1). Garcia v. Ball, 50 Kan. App. 2d 197, 205, 323 P.3d 872 (2014). Ball 

petitioned this court for review, arguing that the district court properly set aside the 

default judgment pursuant to K.S.A. 60-260(b)(6). Garcia filed a cross-petition, asking 

this court to decide whether his legal malpractice claim was barred by either the 

exoneration rule or the statute of limitations.

We reverse the Court of Appeals, finding that the district court did not abuse its 

discretion in setting aside the default judgment pursuant to K.S.A. 60-260(b)(6). But we 

also reverse the district court's dismissal of the lawsuit, based on our recent holding in 
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Mashaney v. Board of Indigents' Defense Services, 302 Kan. ___, 355 P.3d 667 (2015),

with respect to the exoneration rule and the commencement of the statute of limitations.

Accordingly, we remand to the district court to resume the proceedings.

FACTUAL AND PROCEDURAL OVERVIEW

Garcia retained Ball to represent him on a probation revocation matter in Johnson 

County Criminal Case No. 06CR1425. Relying on Ball's advice, Garcia stipulated that he 

had violated the terms of his probation. The district court accepted the stipulation, 

revoked Garcia's probation, and ordered him to serve his originally imposed prison 

sentence of 9 months.

The Journal Entry of Probation Revocation Hearing, which was approved by Ball, 

ordered Garcia to serve 12 months of postrelease supervision, following the 9-month 

original prison term. But pursuant to K.S.A. 22-3716(e), "an offender whose non-prison 

sanction is revoked and a term of imprisonment imposed . . . shall not serve a period of 

postrelease supervision upon the completion of the prison portion of that sentence." 

Within 2 weeks of the probation revocation hearing, the Kansas Department of 

Corrections (KDOC) sent a letter to the district court, with a copy to Ball, pointing out 

that it was error for the court to order postrelease supervision in a probation revocation 

proceeding. Nevertheless, KDOC correctly indicated that it would comply with the 

district court's order, until notified differently. Inexplicably, nothing was done at that time 

to correct the probation revocation journal entry.

After his release from prison and placement on postrelease supervision, Garcia 

was charged with burglary in Johnson County Case No. 09CR1939. Ball represented 

Garcia in the new case and advised him to plead guilty, whereupon the court sentenced 

Garcia to 13 months' imprisonment in the new case. Additionally, because Garcia 
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committed the burglary while on postrelease supervision in the probation revocation case, 

he was subject to a special sentencing rule that required him to serve the remaining 9-

month portion of his postrelease supervision term in prison. See K.A.R. 44-6-115c(c) 

("Offenders whose postrelease supervision is revoked due to commission of a new felony 

shall serve the entire remaining balance of postrelease supervision in prison."). 

Garcia alleged that after learning of the postrelease supervision error, he contacted 

Ball on numerous occasions to inform him of the mistake. After Ball undertook no action 

to correct the error, Garcia filed his own pro se motion to correct an illegal sentence on 

June 7, 2010. A Journal Entry Nunc Pro Tunc, correcting the postrelease supervision 

error in the probation revocation case, was filed on February 4, 2011, prompting Garcia's 

release from prison a few days later.

On May 5, 2011, Garcia filed a petition for legal malpractice against Ball alleging 

that, but for Ball's negligence, he would have been eligible for conditional release in the 

subsequent burglary case as early as June 15, 2010, and would have served his maximum 

sentence in that case by August 31, 2010, i.e., some 5 months earlier than his actual 

release. Garcia alleged that as a consequence of his unlawful imprisonment, he suffered 

damages in excess of $75,000.

Ball was served with the petition on May 17, 2011, and despite receiving two 

extensions of time, Ball failed to file a timely answer. Consequently, on July 7, 2011, 

Garcia filed a demand for judgment of $522,400 in damages, as a prerequisite to seeking 

default judgment pursuant to K.S.A. 60-254(c). Shortly thereafter, Garcia filed a motion 

for default judgment that was granted on October 14, 2011.

On November 14, 2011, Ball filed a motion to set aside the default judgment 

pursuant to K.S.A. 60-260(b)(1) and (b)(6), alleging that (1) he had a meritorious 
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defense; (2) the statute of limitations had run on plaintiff's claims; (3) plaintiff failed to 

state a claim for which relief could be granted; and (4) there was no factual basis for the 

amount of the judgment entered against him. 

At the hearing on the motion to set aside the default judgment, Ball's attorney 

acknowledged that Ball had no "good excuse" for failing to answer, but that Ball "simply 

failed to, neglected to do so." Nevertheless, Ball's attorney argued that the law prefers 

that matters be heard on their merits and that the default judgment should be set aside 

based on the meritorious defenses outlined in the motion to set aside the default 

judgment. Garcia's attorney responded that Ball had completely failed to present any 

evidence establishing excusable neglect and that the motion to set aside the default 

judgment should therefore be denied. In granting Ball's motion to set aside the default 

judgment, the district court explained: "Well, due to the extent that . . . the law dislikes 

defaults, and because Mr. Ball has a meritorious [defense], the fact that I personally don't 

like defaults, and in matters of this nature, I'm going to grant the motion. Default 

judgment is set aside." 

Ball subsequently filed an answer alleging the affirmative defenses of statute of 

limitations, failure to state a claim, and failure to state facts sufficient to constitute a 

cause of action upon which relief may be granted. Ball also filed a motion to dismiss, 

arguing that Garcia's claims were barred by the 2-year statute of limitations for tort 

actions. 

Garcia filed a written response, arguing that pursuant to Canaan, his cause of 

action for legal malpractice did not exist until he obtained postconviction relief, which 

occurred when the Order for Journal Entry Nunc Pro Tunc was filed on February 4, 2011.

The district court agreed that Canaan was controlling but for a different reason. That case 

adopted the exoneration rule, requiring that a legal malpractice "plaintiff must be 
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exonerated in postconviction proceedings before bringing a legal malpractice action 

against his [or her] criminal defense attorney." (Emphasis added.) 276 Kan. at 120. The 

court opined that the nunc pro tunc order corrected a judicial error, but it did not 

exonerate Garcia. 

Garcia filed a timely appeal, raising three issues: (1) The district court abused its 

discretion when it granted the motion to set aside the default judgment because Ball 

"presented no evidence showing his failure to answer was excusable"; (2) the exoneration 

rule does not require a defendant to establish actual innocence, but instead, only requires 

postconviction relief, which he obtained through the nunc pro tunc order that set aside his 

illegal sentence; and (3) the Court of Appeals should decide that the statute of limitations 

on his legal malpractice claim began to run when the nunc pro tunc order was entered.

The Court of Appeals only addressed the first issue, with a majority of the panel 

holding that the district court abused its discretion in granting the motion to set aside the 

default judgment pursuant to K.S.A. 60-260(b)(1) because "Ball provided no reason—let 

alone evidence—to support his claim of excusable neglect, and the existence of such a 

reason and some evidence supporting it is a necessary prerequisite to setting aside a 

judgment based on an excusable-neglect claim." Garcia, 50 Kan. App. 2d at 202. The 

Court of Appeals declined to decide whether Ball was entitled to relief under K.S.A. 60-

260(b)(6), finding that Ball failed to adequately argue the catch-all provision and that the 

subsection does not apply when a party's claim for relief is covered by K.S.A. 60-

260(b)(1). Accordingly, the panel majority reinstated the default judgment against Ball.

50 Kan. App. 2d at 204-05. Judge Pierron's dissent agreed that Ball did not qualify for 

relief under the excusable neglect provision of K.S.A. 60-260(b)(1), but Ball was entitled 

to relief under the catch-all provision of K.S.A. 260(b)(6). 50 Kan. App. 2d at 205-06

(Pierron, J., dissenting). 
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Ball filed a timely petition for review, and Garcia filed a timely cross-petition.

This court granted the petitions pursuant to K.S.A. 20-3018(b), obtaining jurisdiction 

under K.S.A. 60-2101(b).

RELIEF FROM A DEFAULT JUDGMENT

Ball argues that the Court of Appeals erroneously limited its review to a 

determination of excusable neglect under K.S.A. 60-260(b)(1), when his motion alleged 

that relief was appropriate under both subsections (b)(1) and (b)(6), and the district court 

appears to have relied on K.S.A. 60-260(b)(6). Our agreement with that contention 

requires that we analyze the district court's ruling under the law applicable to K.S.A. 60-

260(b)(6). Ultimately, we determine that the district court did not abuse its discretion in 

setting aside the default judgment and reverse the Court of Appeals' holding to the 

contrary.

Standard of Review

The granting of relief from a default judgment rests in the sound discretion of the 

district court and will not be disturbed on appeal absent a showing of an abuse of 

discretion. State ex rel. Stovall v. Alivio, 275 Kan. 169, 172-73, 61 P.3d 687 (2003). But a 

district court's discretion is abused where the judge's action is (1) arbitrary, fanciful, or 

unreasonable, (2) based on an error of law, or (3) based on an error of fact. Northern 

Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 

(2013).

Analysis

K.S.A. 60-255(b) provides that a default judgment may be set aside for any of the 

grounds listed in K.S.A. 60-260(b), which states:
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"On motion and upon such terms as are just, the court may relieve a party or said 

party's legal representative from a final judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 

evidence which by due diligence could not have been discovered in time to move for a 

new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is 

void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment 

upon which it is based has been reversed or otherwise vacated, or it is no longer equitable 

that the judgment should have been prospective application; or (6) any other reason 

justifying relief from the operation of the judgment."

The Court of Appeals majority primarily relied upon a preservation determination 

to limit its review to determining whether the excusable neglect reason listed in K.S.A. 

60-260(b)(1) was applicable to Ball. The panel majority believed that Ball had only 

argued excusable neglect in both the district court and on appeal. Garcia, 50 Kan. App. 

2d at 201. We discern from the record that Ball did not rely exclusively on excusable 

neglect to support his motion to set aside default judgment.

In the first instance, the Motion to Set Aside Default Judgment that Garcia filed in 

the district court specifically stated that it was being brought "pursuant to K.S.A. 60-

260(b)(1) and (b)(6)." Further, the motion set forth allegations that would be applicable to 

a subsection (b)(6) determination, rather than a (b)(1) excusable neglect finding, such as 

the averments that "the defendant has a meritorious defense," and "[t]here is no factual 

basis for the amount of the judgment entered."

Then, the district court did not rely on excusable neglect to grant the motion, but 

rather it held that relief was justified by the existence of a meritorious defense and by the 
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premise that the law disfavors default judgments. Those findings fit within the category 

of "any other reason justifying relief." K.S.A. 60-260(b)(6).

Moreover, even if Ball had not specifically cited to K.S.A. 60-260(b)(6), there is 

precedent that would have permitted the panel majority to consider whether the district 

court's order could have been upheld for any of the reasons set forth in K.S.A. 60-260(b), 

i.e., that the ruling was correct for a different reason. See In re Estate of Hessenflow, 21 

Kan. App. 2d 761, 772-73, 909 P.2d 662 (1995) (order setting aside final judgment 

upheld under K.S.A. 60-260[b][3], even though neither moving party nor court referred 

to that specific provision), rev. denied 259 Kan. 928 (1996); see also Mynatt v. Collis, 

274 Kan. 850, 873, 57 P.3d 513 (2002) (trial court's reason for decision is immaterial if 

ruling correct for any reason). In short, the applicability of K.S.A. 60-260(b)(6) was not 

procedurally foreclosed in this case.

The panel majority also opined that Ball was legally precluded from relying on 

both subsections (b)(1) and (b)(6). The majority cited to In re Marriage of Leedy, 279 

Kan. 311, Syl. ¶ 4, 109 P.3d 1130 (2005), for the proposition that the two grounds for 

relief are always mutually exclusive. Garcia, 50 Kan. App. 2d at 201. Leedy held that the 

general catch-all provision of K.S.A. 60-260(b)(6) cannot be used to circumvent the 1-

year limitation applicable to the specific grounds in the first three subsections, K.S.A. 60-

260(b)(1)-(3). See also Wilson v. Wilson, 16 Kan. App. 2d 651, 658, 827 P.2d 788 (Relief 

cannot be granted under K.S.A. 60-260[b][6] if the real basis for relief is one of the 

reasons listed in 60-260[b][1]-[3] and more than a year has gone by.), rev. denied 250 

Kan. 808 (1992). 

Leedy's prohibition is not applicable here. For one thing, the district court did not 

find that Ball was entitled to relief under both K.S.A. 60-260(b)(1) and (b)(6). Therefore, 

even if the two subsections are mutually exclusive, K.S.A. 60-260(b)(6) could apply 
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where K.S.A. 60-260(b)(1) does not apply. Further, Ball was not attempting to 

circumvent the 1-year time limitation of K.S.A. 60-260(b)(1), as evidenced by the fact 

that he filed his motion within 1 year of the default judgment. If a movant is not 

attempting to use the catch-all provision of K.S.A. 60-260(b)(6) to circumvent the 1-year 

time limitation, he or she is not required to specify only one ground for relief under 

K.S.A. 60-260(b). See In re Marriage of Hunt, 10 Kan. App. 2d 254, 260, 697 P.2d 80 

(1985) (party not required to seek relief under only one of K.S.A. 60-260[b]'s six 

subsections, but party may not use K.S.A. 60-260[b][6] to circumvent 1-year time 

limitation). In sum, there was no legal impediment to Ball seeking relief under K.S.A. 60-

260(b)(6). 

Next, we turn to a consideration of whether, pursuant to K.S.A. 60-260(b)(6), the 

district court abused its discretion in its determination that relief from the default 

judgment was justified for reasons other than excusable neglect. To reiterate, the district 

court relied in part upon the legal premise that the law dislikes default judgments. That 

premise is well established. See, e.g., Reliance Insurance Companies v. ThompsonHayward Chemical Co., 214 Kan. 110, 116, 519 P.2d 730 (1974) (default judgments not 

favored by law).

Likewise, the district court noted the factual circumstance that Ball had a 

meritorious defense. Whether the defaulting party has a meritorious defense is a factor for 

the district court to consider in a motion to set aside a default judgment. See, e.g., Jenkins 

v. Arnold, 223 Kan. 298, 300, 573 P.2d 1013 (1978).

Additionally, the district court announced that it disliked default judgments "in 

matters of this nature." Although the district court did not explicitly describe the nature to 

which it was referring, the matter before the court involved large sums of unliquidated 

damages. There is precedent for the proposition that "'[m]atters involving large sums 
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should not be determined by default judgments if it can reasonably be avoided.'" Montez 

v. Tonkawa Village Apartments, 215 Kan. 59, 63, 523 P.2d 351 (1974) (quoting Tozer v. 

Charles A. Krause Milling Co., 189 F.2d 242, 245 [3d Cir. 1951]).

Finally, "[i]n determining whether to set aside a default judgment, a court should 

resolve any doubt in favor of the motion so that cases may be decided on their merits." 

Jenkins, 223 Kan. at 299. Accordingly, one cannot say that the district court abused its 

discretion in granting relief from its default judgment.

Garcia challenges the district court's finding that Ball had a meritorious defense, 

arguing that Ball did not present any evidence of a defense. That argument is weakened 

considerably by the fact that the district court found Ball's exoneration rule defense—to 

be discussed below—actually required dismissal of the action. The facts necessary for 

that defense, as well as Ball's subsequent stated statute of limitations defense, were 

readily discernible from Garcia's petition. The district court's ruling was factually 

grounded. 

Also, Garcia argues that Ball's failure to establish excusable neglect means that he 

did not establish all of the prerequisites for setting aside a default judgment, originally set 

forth in Montez and, thus, referred to as the Montez factors. Those factors were stated as 

follows:

"A motion to set aside a default may be granted whenever the court finds (1) that 

the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting 

party has a meritorious defense, and (3) that the default was not the result of inexcusable 

neglect or a willful act." 215 Kan. 59, Syl. ¶ 4.
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Montez involved a trial court's refusal to set aside a default judgment "on the 

defendant's plea of inadvertence and excusable neglect." 215 Kan. at 59. In other words, 

Montez reversed the district court's refusal to set aside a default judgment because of the 

evidence in the record supporting the defaulting party's claim of excusable neglect and 

inadvertence. In that instance, it was logical for one of the factors to be that the default 

was not the result of inexcusable neglect or a willful act, i.e., that the movant had 

established excusable neglect.

The same logic does not apply to extending that requirement to a subsection (b)(6) 

claim, because if a movant can show that the default was not the result of inexcusable 

neglect, then the movant has shown that the default was the result of excusable neglect.

In that case, the movant can simply rely on the excusable neglect reason in subsection 

(b)(1), rendering subsection (b)(6) always superfluous. See State v. Frierson, 298 Kan. 

1005, 1013, 319 P.3d 515 (2014) (court presumes legislature does not intend to enact 

useless or meaningless legislation; courts interpret statutes to avoid absurd or 

unreasonable results).

Moreover, the Montez factors are not gleaned from the plain language of K.S.A. 

60-260(b) but instead were adapted from federal caselaw. See Montez, 215 Kan. at 64 

(quoting Schartner v. Copeland, 59 F.R.D. 653, 656 [M.D. Pa. 1973]). And, a review of 

federal caselaw indicates that the factors are based in equity. See Jennings v. Rivers, 394 

F.3d 850, 856-57 (10th Cir. 2005) (Determination of whether neglect is excusable under 

Fed. R. Civ. Proc. 60[b] is an equitable one, taking into consideration, inter alia, 

prejudice to the party, reasons for the delay, and whether the movant has a meritorious 

defense.); Tozer, 189 F.2d at 246 (Because relief from a default judgment is equitable in 

nature, court may consider whether nondefaulting party will be prejudiced if judgment is 

set aside.); Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190, 196 (E.D. Va. 

1963) ("The bare wording of Rule 60[b] does not require the showing of the existence of 
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a meritorious defense but this is judicially established and apparently is left within the 

sound discretion of the trial court." [Emphasis added.]). In that vein, the Montez factors 

should be considered viable benchmarks for judicial discretion in determining whether 

relief from a default judgment is warranted under K.S.A. 60-260(b) but should not be 

rigidly adhered to when determining the existence of "any other reason justifying relief" 

pursuant to K.S.A. 60-260(b)(6). Cf. State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010) 

(harmonizing the court-created Edgar factors with the plain language of K.S.A. 22-

3210[d][1]). 

Ultimately, K.S.A. 60-260(b)(6) "is to be liberally construed 'to preserve the 

delicate balance between the conflicting principles that litigation be brought to an end 

and that justice be done in light of all the facts.'" In re Estate of Newland, 240 Kan. 249, 

260, 730 P.2d 351 (1986); see also Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 

(1983) (holding that K.S.A. 60-260[b][6] should be liberally construed to grant relief 

from default judgment). But see Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S. Ct. 2641, 

162 L. Ed. 2d 480 (2005) (confining Rule 60[b][6] to "extraordinary circumstances" 

warranting relief). As noted, the district court found that movant had meritorious defenses 

and that the law disfavors default judgments. The record discloses no prejudice to Garcia 

by reopening the case. See Montez, 215 Kan. at 65 (plaintiff's burden to prove case is not 

considered prejudice when deciding whether to set aside a default judgment). Garcia does 

not allege that evidence had been destroyed or that he had undertaken any action in 

reliance of the default judgment. The petition was filed in May 2011, the default 

judgment was filed in October 2011, and the motion to set aside the default judgment was 

filed in November 2011. 

In conclusion, using the Montez factors as viable benchmarks, we conclude that 

the district court did not abuse its discretion in granting Ball's motion to set aside the 

default judgment pursuant to K.S.A. 60-260(b)(6).
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EXONERATION RULE/STATUTE OF LIMITATIONS 

Garcia's cross-petition for review requested a determination that Canaan's 

exoneration rule does not require that a court make a finding that a criminal defendant is 

actually innocent before he or she can bring a legal malpractice action against his or her 

criminal defense attorney. In addition, he requests this court to decide when his cause of 

action accrued for purposes of the statute of limitations. Pursuant to our recent holding in 

Mashaney v. Board of Indigents' Defense Services, 302 Kan. ___, 355 P.3d 667 (2015), 

we hold that Garcia was not required to demonstrate actual innocence in order to bring 

his legal malpractice claim against Ball and that his cause of action accrued when the 

district court signed the nunc pro tunc order that acknowledged and corrected his illegal 

sentence. 

Standard of Review

Interpretation and application of the exoneration rule is a question of law over 

which this court's review is unlimited. Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d 911, 

cert. denied 540 U.S. 1090 (2003). Likewise, the "interpretation and application of a 

statute of limitations is a question of law over which an appellate court exercises 

unlimited review." Schoenholz v. Hinzman, 295 Kan. 786, 791, 289 P.3d 1155 (2012).

Analysis

In Canaan, a criminal defendant convicted of first-degree murder and other 

charges brought a legal malpractice action against his defense attorneys and their legal 

investigator, claiming that they were negligent in not proving his innocence. The district 

court granted summary judgment for the defendants, finding that Kansas should require 

that a defendant obtain exoneration by postconviction relief before being permitted to 
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maintain a legal malpractice action against his attorneys. "Various policies or 

justifications have been stated for the exoneration rule." 276 Kan. at 123.

Meanwhile, Canaan had filed a K.S.A. 60-1507 motion for postconviction relief, 

alleging ineffective assistance of counsel. That motion was denied, i.e., Canaan failed to 

obtain any post-condition relief from his conviction.

On appeal of the order granting summary judgment in the malpractice case, 

Canaan argued that the exoneration rule should not be adopted in Kansas. After 

examining caselaw from other jurisdictions and the policy reasons supporting the 

exoneration rule, this court held that before Canaan could sue his attorneys for legal 

malpractice, he was required to obtain postconviction relief from the conviction. 276 

Kan. at 132. But because Canaan had been unsuccessful in obtaining postconviction relief 

under K.S.A. 60-1507, it was unnecessary for this court to answer the further question of 

whether Canaan had been required to prove actual innocence. 276 Kan. at 132.

That further issue was squarely presented in Mashaney, where a criminal 

defendant sued his trial and appellate counsel for legal malpractice. Mashaney 

successfully obtained postconviction relief on the basis of ineffective assistance of 

counsel. But after having his original conviction and sentence set aside, Mashaney 

entered an Alford plea to amended charges in order to obtain a reduced sentence that 

would permit his immediate release from prison for time served. The district court 

granted the defense counsels' motions to dismiss, finding that Mashaney's guilty plea 

foreclosed his legal malpractice claim under the exoneration rule and that his claim was 

time-barred by the statute of limitations. 

A majority of the Mashaney Court of Appeals panel held that a criminal defendant 

must prove actual innocence in order to bring a legal malpractice claim and Mashaney's 
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Alford plea prevented him from establishing the requisite innocence. Mashaney v. Board 

of Indigents' Defense Services, 49 Kan. App. 2d 596, 313 P.3d 64 (2013). One panel 

member dissented, criticizing a rigid actual innocence rule. 49 Kan. App. 2d at 638 

(Atcheson, J., dissenting).

On review, we held that the exoneration rule does not require a criminal defendant 

to prove actual innocence in order to bring a legal malpractice claim against his or her 

criminal defense attorney. 355 P.3d at 687. But the rule does require "the lifting of 

criminal liability by vacation or reversal of a conviction, regardless of whether the 

vacation or reversal is compelled by a successful assertion of actual innocence." 355 P.3d 

at 673-74. Based upon that interpretation of the rule, we concluded that, unlike Canaan, 

Mashaney had obtained postconviction relief sufficient to satisfy the exoneration rule, 

when his conviction was set aside due to ineffective assistance of counsel. 355 P.3d at 

674.

Of note, Garcia's claim of legal malpractice is factually distinguishable from that 

in Mashaney because it relates to an illegal sentence, rather than a wrongful conviction.

Nevertheless, both errors resulted in significant deprivations of liberty, and Mashaney's 

reasoning is equally applicable here. Accordingly, Garcia was not required to prove that 

he was actually innocent of either the crime for which he was illegally sentenced to a 

postrelease supervision term or the new crime that triggered his imprisonment for 

violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to 

obtain post-sentencing relief from the unlawful sentence. That "exoneration" occurred 

when the district court acknowledged that it had imposed an illegal sentence by entering a 

nunc pro tunc order, setting aside the illegal postrelease supervision term. The propriety 

of using a nunc pro tunc order to correct an illegal sentence that has already been served 

is not before us. But the propriety of the district court's dismissal of the legal malpractice 
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action based on the exoneration rule is squarely presented here, and we hold that the 

district court erred in its application of that rule.

Turning to the statute of limitations, Garcia's legal malpractice claim based on 

Ball's breach of a legal duty is governed by K.S.A. 60-513(a)(4), which provides for a 2-

year statute of limitations. See Pancake House, Inc. v. Redmond, 239 Kan. 83, 86-88, 716 

P.2d 575 (1986). In Mashaney, noting that a cause of action accrues when the right to 

maintain a legal action arises, we held that a Kansas criminal defendant's legal 

malpractice claim accrues when he or she is "exonerated," i.e., when the defendant 

obtains postconviction relief. 355 P.3d at 677. Here, Garcia obtained postconviction 

relief, and his legal malpractice claim accrued, on February 4, 2011, when the nunc pro 

tunc order correcting his illegal sentence was filed. Garcia filed his legal malpractice 

action on May 5, 2011, well within the 2-year statute of limitations.

The Court of Appeals panel majority's decision reinstating the default judgment is 

reversed. The district court's order setting aside the default judgment is affirmed. The 

district court's order of dismissal is reversed, and the case is remanded to the district court 

for further proceedings. 

LUCKERT, J., not participating.

ROBERT J. FREDERICK, District Judge, assigned.1

 

1REPORTER'S NOTE: District Judge Frederick was appointed to hear case No. 

108,817 vice Justice Luckert under the authority vested in the Supreme Court by art. 3, 

§ 6(f) of the Kansas Constitution.