Hinds v. Estate of Huston, 89,177

• Citation: 31 Kan.App.2d 478,66 P.3d 925
• Decision Date: 18 April 2003
• Docket Number: No. 89,177,89,177
• Parties: STACY E. HINDS, Appellant, v. THE ESTATE OF GENEVA HUSTON, Appellee.
• Court: Kansas Court of Appeals

31 Kan.App.2d 478

66 P.3d 925

STACY E. HINDS, Appellant, v. THE ESTATE OF GENEVA HUSTON, Appellee.

No. 89,177

Court of Appeals of Kansas

Opinion filed April 18, 2003.

Edward E. Moore, William E. Niffen, II, and Allan Coon, of Norton, Hubbard, Ruzicka & Kreamer, LC, of Olathe, for appellant.

Jason J. Fletes and Mark Beam-Ward, of Hill, Beam-Ward & Kruse, LLC, of Overland Park, for appellee.

Before GREEN, P.J., JOHNSON, J., and BRAZIL, S.J.

GREEN, J.:

In this personal injury action, the defendant, the estate of Geneva Huston (estate), maintained that the action was barred by the applicable 2-year statute of limitations. The trial court agreed and granted the estate's motion to dismiss. On appeal, the plaintiff, Stacy E. Hinds, contends that his amended petition to correctly name the defendant was "within the period provided by law for commencing the action against" the defendant, so that his amended petition did relate back and therefore the statute of limitations did not bar the action. We agree and reverse.

On May 19, 2000, Hinds sued Geneva Huston for personal injury due to a car accident. The petition alleged that Huston negligently drove her car into the back of Hinds' car on May 20, 1998. Under K.S.A. 60-203(a), Hinds was required to obtain service of process on Huston within 90 days after the petition was filed, giving Hinds until August 17, 2000, to accomplish process.

On August 17, 2000, Hinds filed an amended petition, asserting that Huston had died on June 3, 1998. The amended petition named the estate as the defendant and furnished the address where the administrator of the estate could be served. This amended petition was served the same day.

The estate moved to dismiss Hinds' petition because Hinds did not obtain service on the estate until August 17, 2000, which was outside the 2-year statute of limitations under K.S.A. 2002 Supp. 60-513. In support of its motion, the estate presented evidence that Hinds was aware of Huston's death as early as August 26, 1998. The estate argued that Hinds knew that Huston was not the proper party to be named as the defendant. As a result, the estate argued that Hinds was precluded from maintaining that he made a "mistake" concerning the identity of the proper party. The trial court, however, determined that the amended petition related back to the filing of the original petition and denied the estate's motion to dismiss.

The estate later moved the trial court to reconsider the estate's previous motion to dismiss. Citing the recent decision of Moore v. Luther, 29 Kan. App. 2d 1004, 35 P.3d 277 (2001), the estate argued that because Huston was deceased when the lawsuit was filed, the trial court lacked jurisdiction to proceed, and Hinds' suit should be dismissed.

On the other hand, Hinds argued that Moore was inapplicable to the present case because Moore involved the substitution of a party under K.S.A. 60-225(a)(1) while this case involved the amendment of a petition under K.S.A. 2002 Supp. 60-215. Hinds further contended that an amendment under 60-215 was allowed as a matter of course before a responsive pleading was filed.

The trial court determined that under Moore, Hinds' original petition was a nullity. The trial court further determined that because Hinds did not amend the petition before the statute of limitations had run, it had no choice but to dismiss Hinds' action.

Resolution of this case involves interpretation of K.S.A. 2002 Supp. 60-215. Interpretation of a statute is a question of law. This court has unlimited review of the trial court's decision. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). The same standard applies to the application of a statute of limitations. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996). The trial court relied solely on Moore in dismissing Hinds' lawsuit. In Moore, the plaintiffs sued Glen Luther for injuries arising from a car accident 5 days before the statute of limitations had expired. A few months later, an attorney who purported to be representing Luther revealed that Luther had died well before plaintiffs' suit was filed. The plaintiffs moved to substitute a representative of Luther's estate under K.S.A. 60-225.

The Moore court determined that K.S.A. 60-225, which permits substitution of the parties when a party dies after a lawsuit is instituted, could not be used to substitute a party when the original party had died before the lawsuit was instituted. The court further stated: "We find that if a named defendant is dead at the time of the filing of the cause of action, the trial court is without jurisdiction to proceed and the action must be dismissed without prejudice." 29 Kan. App. 2d at 1010.

Hinds argues that the holding in Moore should be limited to the application of K.S.A. 60-225 regarding the substitution of parties. We agree. The operation of K.S.A. 60-225 is distinguishable from the operation of K.S.A. 2002 Supp. 60-215. K.S.A.60-225(a)(1) would seem to contemplate the later death of a legally existent party to an action before substitution is permitted. In Moore, no substitution of parties was allowed because no legal defendant existed when the lawsuit was filed.

On the other hand, K.S.A. 2002 Supp. 60-215 governs the amendment of pleadings to add or substitute parties who should have been joined originally, either as necessary or indispensable parties, or permits the replacement of a party in or against whom the cause of action really lies. Clearly, 60-215 allows a new party to be added by amendment. The question to be answered is whether a new party may be added under 60-215 after the applicable statute of limitations has run.

Hinds argues that the plain language of 60-215 allows his amendment to relate back to the time the original petition was filed. K.S.A. 2002 Supp. 60-215 states:

"(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires....

. . . .

"(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when:

(1) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or

(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by law for commencing the action against the party including the period for service of process under K.S.A. 60-203 and amendments thereto, the party to be brought in by amendment: (A) Has received such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits; and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."

Hinds contends that under K.S.A....