Finley v. Estate of Degrazio

• Decision Date: 02 November 2007
• Docket Number: No. 94,698.,94,698.
• Citation: 170 P.3d 407
• Court: Kansas Supreme Court
• Parties: Kelly A. FINLEY, Appellant, v. ESTATE OF Charles "Don" DEGRAZIO, CRNA, deceased; Sam Simon, CRNA; Leslie M. Luinstra, M.D.; and Terry L. Mills, M.D., Appellees.

170 P.3d 407 Kelly A. FINLEY, Appellant,
v.
ESTATE OF Charles "Don" DEGRAZIO, CRNA, deceased; Sam Simon, CRNA; Leslie M. Luinstra, M.D.; and Terry L. Mills, M.D., Appellees. No. 94,698. Supreme Court of Kansas. November 2, 2007.

[170 P.3d 408]

Terri L. Fahrenholtz, of Brennan Law Group, P.A., of Wichita, argued the cause, and Larry Wall and John L. Brennan, of the same firm, were with her on the briefs for appellant.

Matthew P. Sorochty, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and Peter G. Collins and Nancy Ogle, of the same firm, were with him on the briefs for appellee Sam Simon.

Kenneth E. Pierce, of Pierce Law Office, of Hutchinson, was on the briefs for appellee Estate of Charles "Don" DeGrazio.

James D. Oliver, of Foulston Siefkin LLP, of Wichita, argued the cause, and Amy Lemley, of the same firm, was with him on the briefs for appellees Terry L. Mills and Leslie M. Luinstra.

The opinion of the court was delivered by NUSS, J.:

After a district court judge granted a 30-day extension to obtain service of process on defendants, plaintiff Kelly A. Finley timely effected service. A subsequent district court judge ruled that Finley had not shown the requisite good cause for the extension under K.S.A. 60-203(a) and set aside the order. As a result, her action was not timely commenced and was dismissed.

The Court of Appeals applied the unique circumstances doctrine to save Finley's service of process and her lawsuit. Finley v. Estate of DeGrazio, 36 Kan.App.2d 844, 148 P.3d 1284 (2006). This Court granted review pursuant to K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Does the doctrine of unique circumstances apply to the circumstances of this case? No.

2. Could Judge Anderson render void ab initio the order of another judge? Moot.

3. Did Judge Anderson abuse his discretion? Moot.

Accordingly, the judgment of the district court is affirmed and the judgment of the Court of Appeals is reversed.

FACTS

Underlying Procedural History

Finley received medical care from the defendants in late October 2000. Alleging the care was negligent, she requested a medical malpractice screening panel in Sedgwick County District Court. The court convened a screening panel, thus tolling the statute of limitations pursuant to K.S.A. 65-4908. Subsequently, the court found the proper venue was Harvey County District Court and the case was transferred there. Because the nominations to the screening panel remained incomplete by January 2004 and Finley had failed to designate her panel member, defendants

170 P.3d 409

filed a motion to dismiss. On March 23, 2004, on joint motion of all the parties, the screening panel was dismissed. Pursuant to 65-4908, Finley then had 30 days to file her medical malpractice action.

On April 22, 2004, Finley timely filed her suit against the four defendants. While summons requests were prepared and faxed to the court on May 24, 2004, Finley's counsel advised the clerk that her law office would effect service in lieu of using the county sheriff's office.

Approximately 6 weeks before the suit's filing, DeGrazio's attorney had sent Finley a suggestion of death and, at some point, Finley's counsel realized she needed to open an estate for him to have a special administrator appointed to receive service. Apparently believing the estate proceeding could not be commenced in time to effect service within the required 90-day period and wishing to serve all defendants at the same time, counsel faxed a proposed Order Extending Time for Service to the court on July 7, 2004.

Judge Walker signed the order the next day, granting Finley a 30-day extension to serve defendants. All defendants were properly served within the 30-day extension. The defendants filed separate answers but also joined in a motion to dismiss challenging the order. They essentially asked the court to reconsider its granting of the extension, arguing that Finley failed to show good cause when requesting the extension and that they consequently were not served before the statute of limitations ran. They took particular exception to paragraph 3 of the order, which stated, "Plaintiff has through due diligence attempted service upon this Defendant but her efforts have not been successful."

District Court's Decision

Judge Anderson conducted a hearing on the motion to dismiss because Judge Walker had recused. Finley's counsel acknowledged the order's language in paragraph 3 regarding due diligence to attempt service, but argued that she did make such efforts. She described her law office's normal practice of arranging for a local process server instead of using law enforcement to serve summons and generally described efforts to locate such servers. She candidly admitted, however, that she had not physically attempted service on the defendants and failed.

Finley's counsel also argued that "[i]f the language contained in the order is inaccurate, that alone does not void what good cause plaintiff did have in needing the additional time in which to serve process." Accordingly, counsel then attempted to establish good cause on grounds that had not been provided to Judge Walker. These included the breakup of her law firm on January 1, 2004, and her resulting busy schedule, and the necessity of opening the DeGrazio estate in order to perfect service.

Judge Anderson ruled that, under K.S.A. 60-203(a)(1), Finley had the burden of showing she had good cause for obtaining the order, which she failed to meet. He further held that even if Finley presently showed good cause, 60-203(a)(1) provides that an extension can be granted by the court only "upon a showing of good cause by the plaintiff." Because Finley did not show good cause at the time she procured the order, Judge Anderson ruled the order was not valid.

Next, Judge Anderson determined the unique circumstances doctrine did not apply to provide relief from the running of the statute of limitations. He observed that the doctrine is not applicable unless a party reasonably relies on some action taken by the district court. He ruled that Finley's counsel was chargeable with knowledge of the law, and she knew or should have known that an extension could be obtained only upon a showing of good cause. Further, she prepared the order and included a finding that she had attempted to serve the defendants and failed. He found: "I will not go so far as to accuse plaintiff's counsel of purposely misleading Judge Walker, but I feel it borders on a reckless disregard for the true facts of this case."

Accordingly, the judge concluded that Finley's claims were time barred pursuant to the 2-year statute of limitations in K.S.A. 60-513(a)(7), and granted the defendants' motions to dismiss.

170 P.3d 410

Finley filed a motion to reconsider. Among other things, she supplied an affidavit from the firm's legal assistant who had prepared the order from forms in the firm's files. Attached to the motion were copies of three orders previously prepared and submitted by the firm and signed by a judge in other cases, without separate motion, hearing, or oral argument, which her counsel argued demonstrated that the language used and procedure followed in Finley's case was appropriate. Included among the orders was one virtually identical to Finley's—prepared by her counsel, faxed to the district court clerk, and signed by Judge Anderson in January 2004.

The legal assistant's affidavit also described Finley's actions taken to serve the defendants. The affidavit, together with previously-produced information, revealed that before Finley's submission of the order, the actual steps taken to obtain service were limited to her request for the clerk's issuance of the summonses, calls to process servers in Wichita to check on fees, attempts to locate a Newton process server, and eventual instruction to the assistant to hire a Wichita process server. The motion for reconsideration was denied.

Court of Appeals' Decision

The Court of Appeals acknowledged that this case presented a very difficult question but, nonetheless, agreed with Finley that the unique circumstances doctrine should have been applied to save her service of process and her cause of action. Accordingly, it reversed the district court's dismissal and remanded with directions that her case proceed as if service had been timely effected. Finley v. Estate of DeGrazio, 36 Kan.App.2d 844, 148 P.3d 1284 (2006).

The Court of Appeals based its decision upon the following:

"(1) [T]he apparent practice in McPherson District Court, or at least on one prior occasion, to accommodate 60-203(a) requests of counsel upon little or no showing, thus causing counsel to reasonably believe that her extension order was valid; (2) despite what the district court characterized as `reckless disregard' for the true facts in establishing good cause, counsel's conduct was found to be less culpable than an outright misrepresentation or fraud on the court; (3) the lack of any real prejudice to defendants by reason of being served in mid-August rather than prior to July 22; (4) the need to liberally construe the good cause requirement of K.S.A. 60-203(a)(1); (5) the prejudice to plaintiff of a dismissal of her action, contrary to policy in Kansas to provide litigants their day in court through an adjudication on the merits. [Slayden v. Sixta, 250 Kan. 23, 30, 825 P.2d 119 (1992)]; (6) our belief that the implications of Judge Anderson's decision to render void ab initio the order of another judge after a party has relied on that order to extend a deadline critical to survival of that party's cause of action could place...