Kansas Bd. of Regents v. Skinner, 79,520.
| Decision Date | 16 July 1999 |
| Docket Number | No. 79,520.,79,520. |
| Citation | 267 Kan. 808,987 P.2d 1096 |
| Parties | STATE OF KANSAS, BOARD OF REGENTS, UNIVERSITY OF KANSAS MEDICAL CENTER, Appellant/Cross-appellee, v. RONALD SKINNER, Defendant, and LINDA SKINNER, Appellee/Cross-appellant. |
| Court | Kansas Supreme Court |
Douglas G. Peterson, of Holbrook, Heaven & Osborn, of Kansas City, argued the cause and was on the briefs for appellant.
Kirk D. Auston, of Oklahoma City, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
The district court set aside a Kansas medical center's judgment for lack of personal jurisdiction over the debtor's wife, who lived in Kansas and was separated from her husband, who lived in Arkansas. The medical center moved to reinstate the judgment, claiming the wife had waived her defense of lack of personal jurisdiction by filing a third-party petition. The district court denied the motion. The medical center appeals. The wife cross-appeals, claiming that even if she waived her defense of lack of personal jurisdiction, her status as a separated spouse obviates the application of the doctrine of necessaries. Because we conclude that the district court was without personal jurisdiction over the wife, we do not reach the wife's issue on cross appeal.
Ronald and Linda Skinner were separated spouses. Linda lived in Kansas; Ronald lived in Arkansas. Ronald was regularly treated at the Veterans Administration Hospital in Arkansas for cancer. In November 1992, Ronald and Linda Skinner traveled together to visit their adult son in California. Upon their return from California, Ronald, prior to returning to his home in Arkansas, stayed in Kansas at Linda's residence for a few days. While at Linda's, Ronald experienced a stomach aneurysm. Linda summoned an ambulance. Ronald was taken to the University of Kansas Medical Center (Medical Center) where he had surgery. The Medical Center's bill for treating Ronald was $43,879.43. Ronald was unable to pay the bill. The Medical Center filed a Chapter 61 civil petition in Johnson County District Court against Ronald and Linda Skinner, jointly and severally, for $43,879.43. The Johnson County Sheriffs office personally served the summons and petition on Ronald Skinner at Linda's home. Linda was served by a sheriff's officer leaving a summons and petition with Ronald at Linda's residence. On January 3, 1996, Linda moved to dismiss the Medical Center's claim against her for defective service of process, improper venue, and lack of subject matter jurisdiction. Linda asserted that leaving the summons and petition for her with a nonresident of her household without subsequently mailing a copy of the papers to her at her address did not comply with the statutory procedure for effecting personal or residential service. See K.S.A. 60-205(b) (). On February 1, 1996, Linda's motion to dismiss was argued to the court. The district court declined to rule on the motion at that time. By agreement of the parties, the case was designated a Chapter 60 action.
On May 17, 1996, the Skinners attempted to proceed pursuant to K.S.A. 60-214(a) by filing a third-party petition alleging that the attorneys representing the Medical Center had violated the federal Consumer Credit Protection Act in their actions regarding collection of the debt. The third-party petition did not refer to Linda's claim of lack of personal jurisdiction.
On May 7, 1996, pursuant to K.S.A. 60-214(a), the Skinners filed an answer to the Medical Center's petition. In the answer, the Skinners asserted various defenses. Linda alleged lack of personal jurisdiction due to insufficient service of process on her.
On May 21, 1996, Linda filed a motion for summary judgment, again claiming lack of personal jurisdiction due to insufficient service of process. In a June 25, 1996, memorandum decision the court denied the motion, finding that summary judgment was not appropriate because a genuine issue of material fact existed as to Ronald's residence, an issue to be determined by the trier of fact.
A pretrial order was entered on September 3, 1996. Linda's challenge to personal jurisdiction was asserted in the pretrial order. It is important to note that at that hearing, Linda's third-party petition against the Medical Center's attorneys was severed from the Medical Center's case against the Skinners.
The Medical Center's action against the Skinners was tried to a jury on November 4, 1996. At the conclusion of the evidence, the issue of lack of personal jurisdiction was again raised by Linda. The district judge stated the determination of Ronald's actual residence, i.e., Kansas or Arkansas, was a question of fact to be determined by the jury.
On the verdict form, the jury was asked whether Ronald and Linda were each liable for the Medical Center's claim. The jury was then instructed that if it found Linda liable, it was to determine whether Ronald was residing at Linda's Kansas residence. The court defined residence to the jury as a "place which is adopted by a person as the person's place of habitation and to which, whenever the person is absent, the person has the intention of returning." The jury awarded the Medical Center a judgment of $43,879.43 against Ronald and Linda. The jury also found that Ronald was not residing at Linda's Kansas residence at the time the petition and summons were left for Linda. The district judge approved the Medical Center's judgment of $43,879.43 against both defendants.
Linda filed a motion for a judgment notwithstanding the verdict. The district judge ruled that there had not been valid service of process on Linda, therefore, the court lacked personal jurisdiction to enter judgment against Linda; it set aside the judgment against her. The Medical Center moved to reinstate the judgment against Linda. On June 19, 1997, the district judge denied the motion to reinstate the judgment. The Medical Center appealed, contending that (1) by filing a permissive third-party petition against the attorneys representing the Medical Center, Linda had waived her previously asserted defense of insufficient service of process, or (2) Linda had waived that defense by not requiring the district judge to rule on the issue of jurisdiction prior to judgment in the case.
Linda asserts that because she timely asserted the defense of lack of personal jurisdiction due to insufficient service of process in a motion to dismiss in her responsive pleading, by a motion for summary judgment, and in the pretrial order, the question of personal jurisdiction was raised and preserved, despite her filing a third-party petition. The issue of whether Linda waived the defense of lack of personal jurisdiction by filing a permissive pleading is a question of law requiring de novo review. See State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
The fact that a party has actual knowledge of the pendency and the nature of an action against him or her is not a substitute for service. Notice or knowledge must come from process of service, or there must be a valid waiver.
Jurisdiction over the person of the defendant may be acquired only by issuance and service of process in the method prescribed by statute or by voluntary appearance. Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971) ().
K.S.A. 60-212 applies to the pleading of defenses and objections. Subsection (b) of that statute provides, in part:
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