Estate of Norris ex rel. Norris v. Hastings

141 P.3d 511, 36 Kan. App. 2d 479, 2006 Kan. App. LEXIS 866
CourtCourt of Appeals of Kansas
DecidedSeptember 1, 2006
DocketNo. 93,927
StatusPublished
Cited by5 cases

This text of 141 P.3d 511 (Estate of Norris ex rel. Norris v. Hastings) 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
Estate of Norris ex rel. Norris v. Hastings, 141 P.3d 511, 36 Kan. App. 2d 479, 2006 Kan. App. LEXIS 866 (kanctapp 2006).

Opinions

Rulon, C.J.:

Plaintiff Melvin Norris appeals the district court’s decision granting defendant Mandy Hastings’ summary judgment motion, finding that plaintiff s claim was barred by the statute of limitations because valid service was not timely obtained. We affirm.

Underlying Procedural Facts

The underlying claim involves a personal injuiy suit stemming from an automobile collision on April 27, 2000, between plaintiff and defendant. The accident report indicated that defendant’s address was 1531 Eastland Drive, Hutchinson, Kansas, which was the address listed on defendant’s driver’s license at the time of the incident.

[480]*480On March 22, 2002, plaintiff filed suit against defendant and requested a summons be issued serving defendant at 1531 Eastland Drive, Hutchinson, Kansas. On March 28, 2002, a copy of tire summons and petition was left at the above address by the sheriff s office. Additionally, on April 11, 2002, a notice of service was mailed to the same address stating a copy of the summons and petition had been left at that address.

However, defendant and her family no longer lived at that address on March 22, 2002. The current tenants gave the petition and summons to defendant’s mother. Defendant’s mother called, informed defendant of the lawsuit, and mailed the petition and summons to defendant in Arizona.

On April 17, 2002, defendant filed an answer denying she lived in Reno County, Kansas. Defendant’s answer specifically raised the affirmative defenses of insufficient process and insufficiency of service of process.

On April 11, 2003, defendant moved for summary judgment under K.S.A. 60-203(a) on the grounds plaintiffs suit was barred by the statute of limitations because plaintiff had failed to serve defendant within 90 days of filing the petition. Plaintiff filed a response requesting the district court stay plaintiffs motion and schedule a hearing on the issue of the sufficiency of the service of process.

On November 10, 2003, the district court found plaintiff s initial service on defendant was invalid and defective. Defendant renewed her summary judgment motion.

On November 1, 2004, tire district court filed a memorandum decision adopting defendant’s proposed findings and conclusions in total and granting defendant summary judgment. The court found plaintiff s action did not commence until after the expiration of the statute of limitations because plaintiff failed to properly serve defendant within 90 days of filing tíre petition. The court further found K.S.A. 60-203(b) did not apply to correct the deficiency of service.

Application of K.S.A. 60-203(b)

On appeal, plaintiff challenges the district court’s decision to grant defendant’s summary judgment motion. The parties agree [481]*481there is no dispute over the material facts in this case. The parties agree the district court’s decision was based on its interpretation and application of K.S.A. 60-203(b). Consequently, this court exercises de novo review. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (where there is no factual dispute, appellate review of an order regarding summaxy judgment is de novo).

This case involves a personal injury claim against the defendant. The statute of limitations on such a claim is 2 years. K.S.A. 60-513. Because the incident on which the claim is based occurred on April 27, 2000, plaintiff s civil action must have “commenced” prior to April 27, 2002, or somehow x'elate back to a date prior to April 27, 2002, in order to have been timely filed. See K.S.A. 60-203(a); K.S.A. 60-513; Grimmett v. Burke, 21 Kan. App. 2d 638, 641, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996).

A civil action commences on the date a petition is filed with the clerk of the court, so long as there is a valid service of process within 90 days of the filing. K.S.A. 60-203(a)(l). Otherwise, the action commences upon the date of a valid service of process unless K.S.A. 60-203(b) applies, allowing the action to relate back to the date the petition was originally filed. K.S.A. 60-203(a)(2).

K.S.A. 60-203(b) provides:

“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”

In Grimmett, this court recognized that K.S.A. 60-203(b) should be liberally construed. 21 Kan. App. 2d at 647. It also held:

“[Bjefore it can be said that service has ‘purported to have been made,’ it must be shown that a defendant was given actual notice of having been sued. We also conclude that the following factors should exist: (1) The original service must have ‘appeared’ to be valid and the returns by the sheriff s office or other process servers must indicate that the service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe tire defendant was contesting service until after the statute of limitations had run, but [482]*482had no opportunity to take steps to correct the defective service.” 21 Kan. App. 2d at 647-48.

In Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 101, 106 P.3d 492 (2005), die Kansas Supreme Court recognized that the Grimmett factors “limit the application of K.S.A. 60-203

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Bluebook (online)
141 P.3d 511, 36 Kan. App. 2d 479, 2006 Kan. App. LEXIS 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-norris-ex-rel-norris-v-hastings-kanctapp-2006.