Fisher v. Decarvalho

• Decision Date: 24 June 2011
• Docket Number: No. 104,644.,104,644.
• Parties: Melanie A. FISHER, Appellant,v.Alex F. DeCARVALHO, M.D., Appellee.
• Court: Kansas Court of Appeals

45 Kan.App.2d 1133

260 P.3d 1218

Melanie A. FISHER, Appellant,

v.Alex F. DeCARVALHO, M.D., Appellee.

No. 104,644.

Court of Appeals of Kansas.

June 24, 2011.

Syllabus by the Court

1. A district court's dismissal of a cause of action for lack of personal jurisdiction based on the pleadings is subject to de novo review.

2. Interpretation of a statute is a question of law over which an appellate court has unlimited review.

3. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. When interpreting a statute, an appellate court must first attempt to ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning.

4. An appellate court does not speculate as to the legislative intent when a statute is plain and unambiguous and will not read into the statute something not readily found in it. Where there is no ambiguity in the statutory language, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent.

5. K.S.A. 60–204 provides that substantial compliance with any method of serving process shall effect valid service provided that the party served was made aware of the pending action, notwithstanding some irregularity or omission in service.

6. The term substantial compliance is defined as compliance with respect to the essential matters necessary to assure every reasonable objective of the statute.

7. There must be substantial compliance with some statutory method of service of process before the provisions of K.S.A. 60–204 have any validating effect. Assuming there is substantial compliance with some statutory method of service of process, irregularities or omissions will then be ignored if the court finds that the party to be served was made aware that an action or proceeding was pending.

8. Kansas case law is clear that mere knowledge of pending litigation is not a substitute for valid service of process. Courts cannot apply the substantial compliance doctrine to adopt new, judicially created methods for serving process beyond the methods established by the legislature.

9. Generally, issues not raised before the district court cannot be raised on appeal. However, an exception to the general rule exists when the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case.

10. K.S.A. 60–303(e) provides that the voluntary appearance by a defendant is equivalent to service as of the date of appearance.

11. The Kansas Supreme Court has expressly held that the filing of a motion for extension of time to answer may not be regarded as a waiver of lack of jurisdiction of the person of defendant because of insufficiency of process, or insufficiency of service of process.

12. K.S.A. 60–212(h) has abolished the old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him or her.

13. K.S.A. 60–203(b) provides that if service of process 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 district court shall afford the plaintiff an additional 90 days to properly serve process on the defendant.

14. The savings provision of K.S.A. 60–203(b) only applies if the original service of process purports to have been made on the defendant. The verb “purport” means “to have the appearance of being.”

15. The Kansas Code of Civil Procedure is to be liberally construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

16. Under the facts of this case, the district court did not err by failing to afford the plaintiff an additional 90 days to serve process pursuant to K.S.A. 60–203(b).

Lynn R. Johnson and David R. Morantz, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, MO, for appellant.Janet M. Simpson and Trevin Wray, of Holbrook & Osborn, P.A., of Overland Park, for appellee.Before MALONE, P.J., PIERRON and ARNOLD–BURGER, JJ.MALONE, J.

Melanie A. Fisher appeals the district court's decision dismissing with prejudice her cause of action against Alex F. DeCarvalho, M.D. on the ground that Fisher failed to properly serve process on DeCarvalho prior to the expiration of the statute of limitations. Fisher claims the district court erred in dismissing her cause of action because she substantially complied with the statutory method for service of process by certified mail, and DeCarvalho acknowledged service by making a voluntary entry of appearance. Alternatively, Fisher claims the district court erred by failing to grant her an additional 90 days to serve process pursuant to K.S.A. 60–203(b) after the district court found service to be invalid. For the reasons set forth herein, we affirm the district court's judgment.

Factual and Procedural Background

On October 1, 2009, Fisher filed a petition against DeCarvalho in district court alleging negligent performance of an arthroscopic surgical procedure performed on October 1, 2007. Fisher chose not to attempt personal service of process on DeCarvalho through the sheriff's office or a process server, as she believed this method of service would disrupt DeCarvalho's medical practice. Thus, on November 20, 2009, Fisher filed a request with the clerk of the district court for the issuance of a summons by certified mail. Fisher made no attempt to mail the summons and petition to DeCarvalho's dwelling house or usual place of abode. However, on November 30, 2009, Fisher's attorney mailed the summons and petition to DeCarvalho's medical office via certified mail, return receipt requested. The certified mail did not request restricted delivery. On December 14, 2009, Fisher filed a return of service with the district court and attached a copy of the return receipt, which indicated that an unknown third person named Phyllis Bieker received and signed for the petition on December 2, 2009. The return receipt did not designate Bieker as DeCarvalho's agent.

On December 23, 2009, the district court granted DeCarvalho a 10–day extension of time to file a responsive pleading. On January 4, 2010, DeCarvalho filed an answer setting forth several affirmative defenses including improper service of process, lack of personal jurisdiction, and expiration of the statute of limitations. On March 1, 2010, DeCarvalho served interrogatories and a request for production of documents on Fisher. On March 3, 2010, DeCarvalho responded to Fisher's interrogatories and request for production of documents.

On April 26, 2010, DeCarvalho filed a motion for judgment on the pleadings for lack of personal jurisdiction alleging that Fisher failed to effect personal service of process prior to the expiration of the applicable statute of limitations. Specifically, DeCarvalho argued that Fisher's attempt to serve him by certified mail at his place of business was invalid because Fisher failed to follow the procedure set forth in K.S.A. 60–304(a). DeCarvalho asserted that Fisher's attempt at service could not be deemed as substantial compliance with the statute. Moreover, DeCarvalho contended that his knowledge of the pending lawsuit was not a substitute for proper service of process.

In her response, Fisher argued that although the service of process upon DeCarvalho by certified mail was technically flawed under K.S.A. 60–304(a), it was valid under K.S.A. 60–204 because she substantially complied with the statutory method of service of process. Fisher claimed that DeCarvalho had actual knowledge of the litigation as evidenced by the filing of his answer and discovery requests. Alternatively, Fisher asserted that should the district court decide that service was invalid, she should be granted an additional 90 days to serve process pursuant to K.S.A. 60–203(b).

On May 26, 2010, the district court issued an order of dismissal with prejudice. The district court found that Fisher had failed to properly serve DeCarvalho, and as a result, the district court did not acquire personal jurisdiction prior to the expiration of the statute of limitations. The district court explained that Fisher did not attempt to serve DeCarvalho at his dwelling house or usual place of abode; thus, Fisher did not satisfy the prerequisite for serving an individual by certified mail at a place of business. The district court also found that Fisher did not attempt service by mail at the business address via restricted delivery, and the pleadings did not indicate that the individual who actually received service was authorized to accept service on DeCarvalho's behalf. The district court found that Fisher did not comply with K.S.A. 60–304(a) in any respect; thus, the district court could not conclude that Fisher substantially complied with the statutory method of service of process such that service was rendered valid under K.S.A. 60–204. The district court further found that DeCarvalho's actual knowledge of the lawsuit did not confer jurisdiction upon the court. Finally, the district court found that the original service of process did not appear to be valid; thus, the district court determined that Fisher was not entitled to receive an additional 90 days to serve process pursuant to K.S.A. 60–203(b). Fisher timely appealed the district court's decision.

The overarching issue on appeal is whether the district court erred when it dismissed Fisher's cause of action with prejudice because of improper service of process. Fisher contends that although her attempt to serve DeCarvalho at his business address via certified mail may have been technically flawed, she substantially complied with the statutory method of service of process such...