Dunn v. City of Emporia, 53621
| Decision Date | 22 April 1982 |
| Docket Number | No. 53621,53621 |
| Parties | Robin R. DUNN, Appellant, v. CITY OF EMPORIA, Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Under K.S.A. 60-518, actions "commenced within due time," in which the plaintiff fails other than upon the merits, may be refiled within six months without regard to otherwise applicable statutes of limitations.
2. In order to qualify as an action "commenced within due time" under K.S.A. 60-518, service of process must have been effected in the time and manner prescribed by the applicable statute.
3. To commence an action against a Kansas city, service must be made by serving the clerk or mayor, all as prescribed by K.S.A. 60-304(d ).
4. Before irregularities or omissions in service of process can be cured under K.S.A. 60-204, there must be substantial compliance with some method of process provided in K.S.A. 60-301, et seq.
5. In an action against a city, service of process on the city attorney, rather than on the clerk or mayor as required by law, is void, not voidable, and is insufficient to "commence" an action under K.S.A. 60-518.
6. In an action filed beyond the statute of limitations, it is held : (a) A previous identical action against the city was not "commenced within due time" under K.S.A. 60-518, where service was made upon the city attorney and not upon the mayor or clerk as required by K.S.A. 60-304(d ); (b) such service on the city attorney was void, not merely voidable; and (c) the provisions of K.S.A. 60-518 being inapplicable to extend the statute of limitations, the action of the trial court in dismissing this cause was proper.
Thomas E. Gleason, Jr., of Thomas E. Gleason, Chartered, Ottawa, for appellant.
Dale W. Bell, of Guy, Helbert, Bell & Smith, Chartered, Emporia, for appellee.
Before FOTH, C. J., presiding, TERRY L. BULLOCK, District Judge, and FREDERICK WOLESLAGEL, District Judge Retired, assigned.
This is an appeal from a judgment of the trial court dismissing plaintiff's personal injury action on the grounds that it had not been commenced within the applicable statute of limitations. The material facts are undisputed.
On October 10, 1977, plaintiff, Robin R. Dunn, "stepped into a meter tile causing injuries to herself." Thereafter, she filed a timely claim with the City of Emporia, which was denied.
On October 10, 1979, exactly two years after the incident, plaintiff filed a petition in the Lyon County District Court which was assigned case No. 79C602 (Dunn I ). Paragraph one of the petition stated that service could be had upon the defendant city by serving the city clerk or mayor. Thomas E. Gleason, Jr., plaintiff's attorney, testified that he personally brought the petition to the office of the clerk of the court to be filed. He further stated:
When summons was issued, however, it was directed to the City of Emporia by serving the city attorney, Merlin Wheeler. The Return of Service indicates Mr. Wheeler was served personally.
The City answered on November 13, 1979. Among the affirmative defenses raised by the City in that answer was improper service of process. At this time, plaintiff had about 60 days remaining under K.S.A. 60-203 to check the clerk's file, discover the inadequate service and obtain service on the clerk or mayor. Instead, plaintiff ignored the warning of defendant's answer and merely replied, on November 28, 1979, denying all affirmative defenses.
On November 13, 1980, Dunn I was dismissed for lack of prosecution, the court not having ruled on any of the affirmative defenses presented in defendant's answer. On December 22, 1980, the petition in this case, alleging the same cause of action and assigned case No. 80C1074 (Dunn II ), was filed. Praecipe for summons in Dunn II was directed to the city clerk of the City of Emporia and the return of service indicates the clerk was personally served.
On February 11, 1981, defendant filed a motion to dismiss alleging (1) that the petition in Dunn II failed to state a claim upon which relief could be granted and (2) a violation of the statute of limitations. Following a hearing and arguments of counsel, the trial court granted the City's motion to dismiss on statute of limitations grounds. This appeal followed. Plaintiff raises two points on appeal for our review:
1. Did service of process on the city attorney constitute substantial compliance with the provisions of K.S.A. 60-304(d )?
2. Was service of process on the city attorney, even if not in substantial compliance with K.S.A. 60-304(d ), merely voidable and therefore sufficient to "commence" an action for purposes of K.S.A. 60-518?
We will discuss these issues in the order presented.
1. The petition in Dunn II was clearly filed outside the applicable two year statute of limitation period. That period expired on October 10, 1979, and the Dunn II petition was not filed until December 22, 1980. However, K.S.A. 60-518 provides:
"If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure." Emphasis added.
Thus, if Dunn I was "commenced within due time," Dunn II would not be violative of the statute of limitations inasmuch as it would have been commenced within six months of the dismissal of Dunn I for lack of prosecution, a dismissal clearly "otherwise than upon the merits."
The "due time" for commencement of an action, referred to in K.S.A. 60-518, is governed by K.S.A. 60-203:
The petition in Dunn I was filed October 10, 1979, and service of process was had on the city attorney on a date which is undisclosed but which was clearly within ninety days of the filing of the petition. The question for review thus becomes: Was this service of process sufficient to "commence" the action?
The statutory method for service of process applicable to the case at issue is K.S.A. 60-304(d ), which provides in relevant part:
As previously noted, service in Dunn I admittedly was not made upon the clerk or the mayor. Plaintiff nonetheless points to K.S.A. 60-204, which provides:
Plaintiff argues that under the facts of Dunn I, service on the city attorney constituted "substantial compliance" with the method specified in K.S.A. 60-304(d ) and that, inasmuch as the City of Emporia was made aware the action was pending, the service should be held valid.
K.S.A. 60-204 was first discussed in Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127 (1969). In Briscoe, an order of garnishment was directed to B. J. Kingdon as the individual employer of the judgment debtor. The order was served on Kingdon's secretary. No answer was filed and the judgment creditor sought judgment against Kingdon as a nonanswering garnishee. The trial court denied judgment on the grounds that the garnishment had not been properly served on Kingdon. The supreme court affirmed, holding:
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