Kuhn v. Schmidt

• Decision Date: 30 March 2012
• Docket Number: No. 106,257.,106,257.
• Citation: 47 Kan.App.2d 241,277 P.3d 1141
• Parties: Marie E. KUHN, individually, and Robert L. Kuhn, individually, and as husband and wife, Appellants, v. Harold D. SCHMIDT, Appellee.
• Court: Kansas Court of Appeals

47 Kan.App.2d 241

277 P.3d 1141

Marie E. KUHN, individually, and Robert L. Kuhn, individually, and as husband and wife, Appellants,

v.Harold D. SCHMIDT, Appellee.

No. 106,257.

Court of Appeals of Kansas.

March 30, 2012.

Syllabus by the Court

1. Pursuant to K.S.A. 60–203(a), a civil action is commenced with the filing of the petition if the plaintiff obtains service of process on the defendant, or makes the first publication for service by publication, within 90 days thereafter, unless the 90–day period is extended for 30 days upon a showing of good cause. Otherwise, the date the action is commenced is the date that the defendant is served.

2. Pursuant to K.S.A. 60–204, service of process may be accomplished through substantial compliance with the statutory requirements.

3. Kansas courts have interpreted substantial compliance with our statutes for service of process to mean compliance with respect to the essential matters necessary to assure every reasonable objective of the statute. But mere knowledge of pending litigation is not a substitute for valid service of process.

4. Under the facts presented, leaving the summons and petition with the receptionist at the defendant's assisted living residential community does not constitute substantial compliance with the statutory requirements for personal or residential service of process. Delivering the summons and petition to an unauthorized third party who promises to pass them to the defendant does not constitute proper service of process even if the defendant is subsequently notified of the suit.

5. In certain circumstances K.S.A. 60–203(b) saves a claim from being barred by the applicable statute of limitations by permitting the belated proper service of process to relate back to the date the suit was filed. But the salutary effect of K.S.A. 60–203(b) does not apply when the plaintiff has notice of a defect in service of process in time to correct the defect before the 90–day period in K.S.A. 60–203(a) expires, but fails to do so.

Morgan B. Koon, of Koon Law Firm, LLC, of Wichita, and Stephen W. Johnson, of Cornerstone Law, L.L.C., of Newton, for appellants.

Paul Hasty, Jr., of Hasty & Associates, LLC, of Overland Park, for appellee.

Before STANDRIDGE, P.J., McANANY and ATCHESON, JJ.

McANANY, J.

On June 2, 2006, Harold Schmidt and Marie Kuhn were involved in an automobile accident. On May 30, 2008, Kuhn filed suit against Schmidt, alleging injuries and damages resulting from Schmidt's negligence in the accident. Kuhn requested that the sheriff serve process on Schmidt at his apartment at an assisted living residential community where he resided. On June 2, 2008, Deputy Sheriff Scott Perkins went to Schmidt's apartment and knocked on the door. When there was no response, Perkins left the petition and summons with the receptionist at the front desk of the residential community. The receptionist said she would see that Schmidt received the papers. She apparently set the papers aside for Schmidt in an open box at the residential community, in an area separate from Schmidt's apartment. The following day Perkins filed his return on service of summons, stating that he had served Schmidt on June 2, 2008, by residential service.

Schmidt filed his answer on June 20, 2008, asserting that service of process was defective. The parties proceeded with discovery, but Kuhn made no inquiry into the nature of the claimed defect in service.

On April 27, 2009, Schmidt moved to dismiss for lack of personal jurisdiction due to insufficient service of process. The district court granted Schmidt's motion on May 18, 2009. Kuhn moved to set aside the order of dismissal. After a hearing on Kuhn's motion, the district court set aside the dismissal on June 29, 2009.

On August 17, 2009, Kuhn filed an alias summons and, on August 19, 2009, obtained personal service on Schmidt. Schmidt then filed his answer asserting that the action was barred by the 2–year statute of limitations.

Schmidt then moved for summary judgment based on his statute of limitations defense. He argued that his original answer put Kuhn on notice of the lack of personal jurisdiction over him and she took no action to correct the service defect within 90 days of the original date of service. Thus, the later service obtained on August 19, 2009, did not relate back to the date suit was filed. As a result, the suit was deemed commenced on August 19, 2009, the date service was perfected, which was long after the 2–year statute of limitation had expired.

The district court granted Schmidt's summary judgment motion. In doing so, the court found that the savings provisions of K.S.A. 60–203(b) did not apply because Kuhn was on notice of the defect in service when Schmidt filed his first answer but did nothing about it. When Schmidt filed his answer on June 20, 2008, Kuhn had 69 days left to perfect valid service on Schmidt, but Kuhn made no timely effort to do so. Kuhn appeals.

On appeal Kuhn contends that the original June 2, 2008, service on Schmidt was sufficient because it substantially complied with Kansas statutes on service of process. In the alternative, Kuhn argues that K.S.A. 60–203(b) applies to save Kuhn's negligence action because she served Schmidt with an alias summons within 90 days of the district court adjudicating Kuhn's service to be invalid.

We need not recount the standards for summary judgment and for appellate review because they are well known to the parties and are found in innumerable cases, including Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (quoting Warner v. Stover, 283 Kan. 453, 455–56, 153 P.3d 1245 [2007] ).

A civil action is commenced with the filing of the petition if the plaintiff obtains service of process on the defendant, or makes the first publication for service by publication, within 90 days thereafter, unless the 90–day period is extended for 30 days upon a showing of good cause. Otherwise, the date the action is commenced is the date that the defendant is served. K.S.A. 60–203(a). Pursuant to K.S.A. 60–513, Kuhn had 2 years from the date of the accident, or until June 2, 2008, to commence her negligence action against Schmidt. Kuhn filed suit on May 30, 2008, so she had 90 days thereafter within which to perfect service in order for service to relate back to the date suit was filed.

Here, Kuhn attempted to serve Schmidt through personal or residential service. K.S.A. 60–303(d)(1) provides that personal service “shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served.” It is clear that there was no personal service. K.S.A. 60–303(d)(1) states that residential service shall be made “by leaving a copy of the process and petition or other document to be served, at the dwelling house or usual place of abode of the person to be served with someone of suitable age and discretion residing therein.” (Emphasis added.) It is equally clear that residential service was not accomplished. The receptionist who accepted the papers did not reside there.

But K.S.A. 60–204 provides that service of process may still be achieved through substantial compliance:

“In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her status or property were subject to be affected.”Kansas courts have interpreted substantial compliance to mean “compliance with respect to the essential matters necessary to assure every reasonable objective of the statute.” But “Kansas case law is clear that mere knowledge of pending litigation is not a substitute for valid service of process.” Fisher v. DeCarvalho, 45 Kan.App.2d 1133, 1147, 260 P.3d 1218 (2011).

In Fisher, service of process was held defective when the plaintiff attempted to serve the defendant by means of certified mail at his business address. 45 Kan.App.2d at 1147, 260 P.3d 1218. The papers were received and signed for by an unknown person. The defendant filed an answer that set forth the affirmative defense of insufficient service of process. In finding that the plaintiff's method of service did not substantially comply with the Kansas statutes, the Fisher panel stated that the plaintiff “did not satisfy the most important objective of service of process, i.e., actual service upon” the defendant or his authorized agent. 45 Kan.App.2d at 1147, 260 P.3d 1218.

The Fisher court cited Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 874, 127 P.3d 319 (2006); see Fisher, 45 Kan.App.2d at 1141–43, 260 P.3d 1218. In Haley, the Kansas Supreme Court held that “[l]eaving a copy of a petition and summons with the secretary of the defendant is not substantial compliance with any of the provisions mentioned for personal service. The secretary was not an authorized agent to receive service of process. [Citation omitted.]” 207 Kan. at 463, 485 P.2d 1321.

In keeping with Fisher and Haley, Perkins leaving the summons and petition with the receptionist was not substantial compliance with the statutory requirements for proper service of process. Delivering the summons and petition to an unauthorized third party who promises to pass them to the defendant does not constitute proper service of process even if the defendant is subsequently notified of the suit.

But Kuhn argues that K.S.A. 60–203(b) saves her claim from being barred by the statute of limitations. The statute provides:

“If service of process or first publication 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 action shall nevertheless be deemed to have been commenced at the...