Porter v. Stormont-Vail Hospital

621 P.2d 411, 228 Kan. 641, 1980 Kan. LEXIS 366

• Court: Supreme Court of Kansas
• Decided: December 6, 1980
• Docket: 51,136
• Status: Published

Opinions

The opinion of the court was delivered by

Holmes, J.:

Plaintiff-appellant, Danny R. Porter, appeals from an order of the district court granting summary judgment to the defendant-appellee, Stormont-Vail Hospital. This case grows out of an action originally filed by Stormont-Vail against Porter in the magistrate court of Shawnee County to collect a hospital bill for services rendered to Porter. Stormont-Vail recovered a default judgment against Porter for the sum of $478.18. The judgment remains unpaid. Post-judgment collection procedures were instituted in the magistrate court and on three occasions between April, 1974, and January, 1977, Porter was arrested on bench warrants issued by the judge of the magistrate court upon Porter’s failure to appear in response to court orders directing him to appear. Porter was incarcerated briefly on the first two bench warrants and posted a bond at the time of his arrest on the third. He then filed this action in the district court seeking actual and punitive damages based upon allegations of malicious prosecution, false arrest, false imprisonment and abuse of process. Following discovery both parties filed motions for summary judgment and the motion of the defendant was sustained.

K.S.A. 60-256(c) provides in part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is' entitled to a judgment as a matter of law.”

We do not deem it necessary to once again set forth the basic principles which apply when a motion for summary judgment is before the court. They were recently set forth at length in Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979).

The learned trial judge filed an extensive memorandum decision and order as follows:

“MEMORANDUM OF DECISION AND ORDER

“The Motion for Summary Judgment of defendant was heard by the Court and taken under advisement. The matter comes on now for decision.

“The Court finds the facts, for the purposes of this motion, to be as follows:

“In the early part of 1973, plaintiff entered Stormont-Vail Hospital and received medical services with respect to a knee operation, and these services had the fair and reasonable value of $478.18.

“Plaintiff subsequently prosecuted a workmen’s compensation claim with respect to the knee operation and recovered a sum of $2,600.00.

“Neither plaintiff nor the workmen’s compensation insurance carrier ever paid the aforementioned amount of $478.18 owing to Stormont-Vail Hospital as a result of services rendered to plaintiff with respect to his knee operation.

“Upon plaintiff’s failure to pay the amount of $478.18 upon demand, the defendant Stormont-Vail Hospital filed suit in the Magistrate Court of Shawnee County, Kansas, against plaintiff Porter seeking recovery of the amount of $478.18 with interest at the rate of eight percent (8%) per annum, and for costs.

“On the 30th day of March, 1974, Richard Tucker, Sheriff of Rice County, Kansas, received a Summons and copy of Petition from the Magistrate Court of Shawnee County, Kansas, involving the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, for the purpose of serving Danny R. Porter, defendant in that action.

“On the 1st day of April, 1974, Sheriff Richard Tucker personally served Danny R. Porter with the Summons and copy of Petition in Stormont-Vail Hospital v. Porter at 9:00 a.m.

“On April 1, 1974, Sheriff Richard Tucker made return of Summons to the Magistrate Court of Shawnee County, Kansas, and caused the same to be mailed to such Court.

“By inadvertence, Sheriff Tucker failed to sign his name to the Sheriff”s Return of Summons mentioned above, but nevertheless states that he personally served Danny R. Porter at the date and time mentioned.

“Pursuant to the Summons personally served upon plaintiff Porter on April 1, 1974, plaintiff Porter was ordered to appear in the Magistrate Court of Shawnee County, Kansas, at 11:00 o’clock a.m., April 24, 1974, and was informed that should he either fail to appear before the Court, personally or by counsel, at that time, or prior to that time file with the court a pleading in response to the Petition, judgment by default would be taken against him for the relief demanded in the Petition; plaintiff Porter failed to appear either personally or by counsel before the Court on April 24, 1974, and further failed to file any pleading in response to the Petition, any objection to venue, or any request for additional time; as a consequence of plaintiff’s failure to appear or timely plead, a default judgment was entered against him by the Court in accordance with K.S.A. 61-1721 for the amount requested in the Petition, said amount being $478.18, with interest at the rate of eight percent (8%) per annum from February 13, 1973, and for costs.

“On April 30, 1974, the attorney for defendant Stormont-Vail Hospital made application for examination of judgment debtor Porter to the Magistrate Court, and pursuant to such application, the Court entered an order for plaintiff Porter to personally appear before the Court at 11:00 o’clock a.m. on the 22nd day of May, 1974; the application, and the order issued pursuant thereto, were in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices, and procedures of the Magistrate Court.

“Plaintiff Porter was personally served with the aforementioned order to appear, but failed to appear at the time indicated.

“As a result of plaintiff’s failure to appear on May 22,1974, as ordered, a citation in contempt was issued by the Court ordering plaintiff to appear before the Court on July 3,1974, at 11:00 o’clock a.m. and show cause, if any, why he should not be punished for contempt of Court; this citation in contempt was personally served upon plaintiff, but plaintiff failed to appear before the Court at the time indicated.

“As a consequence of plaintiff Porter’s failure to appear on July 3,1974, a Bench Warrant was issued on July 10, 1974, ordering that plaintiff Porter be arrested and brought before the Court to answer to the charge of failure to appear as ordered; this Bench Warrant was issued in accordance with Chapter 61 of the Kansas Statutes Annotated, and the rules, practices and procedures of the Magistrate Court.

“Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested on September 24, 1974, and brought before the Court on September 25, 1974, to answer to the charge of contempt for failure to appear as ordered; at that time the matter on contempt was held in abeyance by the Court, and plaintiff was ordered to appear October 9, 1974, at 11:00 o’clock a.m.

“Plaintiff Porter failed to appear as ordered on October 9, 1974, and as a consequence, a Bench Warrant was issued for plaintiff’s arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.

“Pursuant to the aforementioned Bench Warrant, plaintiff was again arrested on July 13, 1976, and brought before the Court on July 14, 1976; at that time, the matter of contempt of Court was held in abeyance, and plaintiff Porter was ordered to appear before the Court on August 11, 1976.

“Plaintiff Porter appeared before the Court on August 11, 1976, pursuant to the aforementioned order, and the matter of contempt of Court was held in abeyance; plaintiff was ordered to re-appear before the Court on September 8, 1976.

“Plaintiff Porter failed to appear as ordered on September 8, 1976, and as a consequence, a Bench Warrant was issued for plaintiff’s arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.

“Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested in January of 1977; he was not, however, transported to Shawnee County at the time of this arrest, but rather was allowed to post a bond of $50.00 thereby assuring his appearance before the Magistrate Court of Shawnee County; upon the posting of the bond, plaintiff was released from custody upon condition that he appear before the Magistrate Court of Shawnee County when so ordered.

“There have been no further proceedings in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, since plaintiff’s arrest, and subsequent release from custody in January of 1977.

“Plaintiff has at no time filed an appeal from the judgment entered against him in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486.

“Plaintiff claims that the judgment rendered against plaintiff is void for failure of the Sheriff of Rice County, Kansas to sign [the return of service]; that plaintiff has been maliciously prosecuted, abused with process and falsely arrested and imprisoned. Defendant maintains that it is entitled to judgment, as a matter of law, on the foregoing claims.

“The Court finds and concludes as follows:

“Plaintiff’s claims appear to stem from his assertion that the Magistrate Court of Shawnee County lacked jurisdiction to enter a default judgment against him in the case of Stormont-Vail Hospital v. Danny R. Porter, No. 74-CV-486, and as a result, the judgment entered and all post judgment proceedings are void. This contention is based on the failure of Sheriff Richard Tucker, of Rice County, Kansas, to sign the Return on Service of Summons. The Return in question includes the notation that Danny R. Porter was served personally on April 1, 1974, along with the miles traveled by and fees of the serving officer. The only omission is the signature of the officer perfecting service. Sheriff Tucker’s affidavit, on file herein, states unequivocally that he perfected personal service on Danny R. Porter at 9:00 A.M. April 1, 1974, and inadvertently failed to sign the Return. Attached to Sheriff Tucker’s affidavit is a copy of his Day and Expense Book setting out in detail his handling of service of summons on Danny Porter.

“The issue, stated simply, is this:

“When it is an uncontroverted fact that personal service of summons took place, does the inadvertent failure, of the officer perfecting service, to sign the return render any judgment entered and post judgment proceedings, had thereon, void?

“The statutory section which governed proof of service at the time Sheriff Tucker served plaintiff Porter in the case of Stormont-Vail Hospital v. Danny R. Porter, was K.S.A. 61-1807 (Supp. 1974) which states in pertinent part:

‘Proof of service shall be made as follows: (a) Personal or resident service. (1) Every officer to whom summons or other process shall be delivered for service within or without the state, shall make return thereof in writing stating the time, place and manner of service of such writ, and shall sign his name to such return. . .’

“Also important to the question of whether service in Stormont-Vail Hospital v. Porter was valid is K.S.A. 61-1704 [1974 Supp.], which states in pertinent part:

‘In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his person, status, or property were subject to be affected.’

“The Kansas Supreme Court considered a similar question in Cadwallader v. Lehman 202 Kan. 738 [451 P.2d 163 (1969)]. In that case it was objected that the officer who served the summons on the defendant did not verify the return and thus there was no valid service. The Deputy Sheriff made out his return properly but the Clerk of the Court attached an acknowledgment instead of executing a verification. At page[s] 743[-44] the Court said:

‘We do not regard this as fatal, however. The district court approved the service, as shown by the journal entry of July 27, 1967. In so doing, the court was authorized, by the statute itself, to consider any competent proof that service had properly been made.

‘In our opinion it was proper for the trial court, in determining whether the defendant was served with out-of-state summons on October 3, 1966, to take into account the return of service which, although only acknowledged, at least suggests personal service on Lehman, together with the letter of October 12, 1966, from the attorneys consulted by Lehman about the lawsuit. We conclude the court was justified in finding the defendant properly served with out-of-state process.’

“The rule is succinctly stated in Syllabus No. 7 to Cadwallader v. Lehman, supra:

‘Under the provisions of K.S.A. 60-204 substantial compliance with a method of serving process shall effect valid service thereof where the court finds that, notwithstanding some irregularity or omission, the party served was made aware that legal proceedings were pending in a specified court in which his person, status or property might be affected.’

“In the instant case the sheriff made a full and complete return, setting out the fact that plaintiff was personally served at a specified time and date omitting only his signature. In addition to the return is Sheriff Tucker’s affidavit to the effect that he personally served defendant Porter, and inadvertently omitted his signature, considered with the Sheriff’s Day and Expense Log make it abundantly clear that defendant Porter ‘was made aware that legal proceedings were pending in a specified Court in which his person, status or property might be affected’ and this Court so finds.

“Plaintiff’s next claim is for malicious prosecution. The elements of a malicious prosecution action are set out at PIK 2nd 14.30 as follows:

‘To maintain an action for malicious prosecution the plaintiff must prove that the defendant instituted the proceeding of which complaint is made, that the defendant in so doing acted without probable cause and with malice, and that the proceeding terminated in favor of the plaintiff.’ (emphasis supplied)

“See Silva v. Lewis 210 Kan. 348 [502 P.2d 831 (1972)] as approving PIK 2nd 14.30.

“The case on which this action is based, Stormont-Vail Hospital v. Danny R. Porter, terminated on April 24, 1974 in a default judgment in favor of Stormont-Vail Hospital and against Danny R. Porter. The unfavorable result, as to plaintiff, was not appealed and is now res judicata. The element of favorable termination, of the proceeding, is therefore lacking in plaintiff’s claim.

“Plaintiff also asserts a claim for false arrest and false imprisonment. The statute of limitation applicable to that claim is found at K.S.A. 60-514. That statute states in pertinent part:

‘Actions limited to one year. The following actions shall be brought within one (1) year ... (2) An action for assault, battery, malicious prosecution, or false imprisonment. . . .’

The instant action was filed January 17,1977. Any claim of plaintiff for false arrest or false imprisonment arising from an incident occurring at a time prior to January 17, 1976 is barred by the provision of K.S.A. 60-514.

“Defendant alleges that the judgment entered against plaintiff Porter in Stormont-Vail Hospital v. Porter, and the bench warrants issued by the Magistrate Court in enforcing that judgment establish a legal excuse for the arrest and imprisonment of plaintiff.

“The general rule accepted in Kansas, is stated in 32 Am. Jur. 2d, False Imprisonment, § 66, at page[s] 127J-28] as follows:

‘An arrest ... by virtue of process regular and legal in form, duly issued by a court, magistrate, or body having authority to issue it, and executed in a lawful manner, does not constitute false arrest or imprisonment. Valid process is a complete justification for the acts done under it and in compliance with it. It protects the person who [sued] it out, as well as the officer who executed it, in the case of a warrant of arrest. . . .’

“The arrests, and imprisonments resulting therefrom, of which plaintiff complains were made pursuant to bench warrants issued out of the Shawnee County Magistrate Court. PIK [Civ.] and 14.21 provides in relevant part as follows:

‘A legal excuse for the restraint of the personal freedom of an individual is a defense to an action for (false imprisonment) (false arrest).

A legal excuse exists:

1. When an officer arrests with a valid warrant.’

“All arrests of plaintiff, and imprisonments arising therefrom, were made pursuant to valid warrants issued by a magistrate and therefore do not constitute false arrest or imprisonment.

“Defendant next claims it is entitled to judgment on plaintiff’s claim for abuse of process.

“The elements of abuse of process are defined as follows:

‘It is generally recognized that the elements essential to sustain the action are: (1) that the defendant made an illegal, improper, perverted use of the process, [a use neither warranted nor authorized by the process], and (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity. While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial.’ 1 Am. Jur. 2d 252 [-53], Abuse of Process, § 4.

“The Kansas Supreme Court has considered these elements as follows:

‘. . . [T]wo elements are necessary to an action for malicious abuse of process, one the existence of an ulterior purpose, and second, an act in the use of such process not proper in the regular prosecution of the proceeding. . . .’ Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444.

Plaintiff’s specific claims as to abuse of process are contained in paragraph six of his petition and are stated as follows:

‘That the conduct of the defendant herein resulted in an abuse of process in that the procedures utilized were for harassment purposes and in particular to cause great inconvenience to the plaintiff in that he was residing several hundred miles from Topeka, Kansas, when required to report in connection with collection procedures. That after initiating said procedures there was not due process and that there was no hearing ever conducted in the Court pertaining to the issues tendered by the process that was issued by the Court upon request of the defendant herein and that the same was an abuse of process in all respects.’

“The post judgment activities of the defendant were conducted in accordance with the provisions of Chapter 61 of the Kansas Statutes Annotated and the rules, practices and procedures of the Shawnee County Magistrate Court. The post judgment remedies contained in Chapter 61, and more specifically K.S.A. 61-2204, ‘provide a simple and effective method by which a person who has recovered judgment in a limited action may discover the assets of a recalcitrant judgment debtor and thus find property or funds which may be levied against in order to satisfy the judgment.’ Threadgill v. Beard, 225 Kan. 296, 302 [590 P.2d 1021 (1979)]. The judgment rendered by the Magistrate Court in Stormont-Vail v. Porter remains unsatisfied to this date. Defendant’s actions do not constitute ‘an act in the use of such process not proper in the regular prosecution of the proceeding. . .’ Welch v. Shepherd, supra, and therefore that element is lacking in plaintiff’s claim.

“Defendant’s Motion for Summary Judgment also addresses a negligence theory. This apparently stems from plaintiff’s listing that theory in a pretrial questionnaire dated November 15, 1977. However, plaintiff has never amended his pleadings to encompass such a theory and the Court has not considered it in making this ruling.

“The issues in this case have been made more complex and the decision of the Court made more difficult by the failure of the plaintiff to comply with the dictates of SCR 141 and to cite legal authority in support of his position. That failure has also resulted in the expenditure of unnecessary hours and a regrettable delay in the Court rendering its decision.

“The Motion of the defendant for Summary Judgment is sustained for the reasons set forth above. The foregoing Memorandum of Decision shall serve as the Order of the Court. Costs are taxes to the plaintiff. Dated April 26, 1979.”

Regardless of what might be said about the procedures followed by the magistrate court in the original collection action, the fact remains that such procedures did comply with the appropriate statutes and the orders and bench warrants were legally issued by the magistrate judge and not by Stormont-Vail. On the record before us, no other conclusion can be reached.

We have carefully considered all points raised by the appellant together with the record on appeal and conclude that the trial court was correct in its final determination of this case.

Appellee seeks attorney fees and costs under Rule 7.07(b) on the grounds that the appeal herein was frivolous and taken only for the purpose of harassment and delay. While much of what defendant says in its brief about the merits of this appeal is true, and while the comments of the trial judge in the penultimate paragraph of his memorandum opinion would also apply to the brief of the plaintiff, we cannot say the appeal was totally without merit and therefore defendant’s request for attorney fees and costs is denied.

The judgment is affirmed.