Livingston v. Estate of Bias

• Decision Date: 05 January 1984
• Docket Number: No. 55565,55565
• Citation: 673 P.2d 1197,9 Kan.App.2d 146
• Parties: Craig Wayne LIVINGSTON, Appellee, v. The ESTATE OF Leonard B. BIAS Through his Personal Representative, Esther Bias, Appellant.
• Court: Kansas Court of Appeals

Page 1197

673 P.2d 1197

9 Kan.App.2d 146

Craig Wayne LIVINGSTON, Appellee, v. The ESTATE OF Leonard B. BIAS Through his Personal Representative, Esther Bias, Appellant.

No. 55565.

Court of Appeals of Kansas.

Jan. 5, 1984.

Syllabus by the Court

1. Under K.S.A.1982 Supp. 60-241(b ), a dismissal not under section 60-241 and not within one of its exceptions operates as an adjudication upon the merits unless the order for dismissal otherwise specifies.

2. A dismissal under K.S.A. 60-225(a )(1) for failure to substitute parties within a reasonable time after death is suggested on the record is not a dismissal under 60-241 and therefore operates as an adjudication upon the merits unless the order of dismissal otherwise specifies.

Charles L. Davis, Jr. and James G. Keller, of Davis, Unrein, Hummer & McCallister, Topeka, for appellant.

Ira Dennis Hawver, of Hawver & Irigonegaray, P.A., Topeka, for appellee.

Before FOTH, C.J., TERRY L. BULLOCK, District Judge, Assigned, and FREDERICK WOLESLAGEL, District Judge, Retired, Assigned.

FOTH, Chief Judge:

The issue in this case is whether a new suit may be filed when a prior suit on the same cause of action has been dismissed under K.S.A. 60-225(a )(1) for failure to substitute a proper party within a reasonable time after the defendant's death was suggested upon the record. We hold that it may not.

Plaintiff Craig Livingston first filed suit against Leonard Bias on May 25, 1978, for injuries sustained in a 1976 automobile accident. Bias, the defendant in that suit, died March 2, 1980, a resident of Missouri. A suggestion of death appeared in a pretrial order of June 2, 1980. In September, 1980, plaintiff filed a motion to have the defendant's insurer declared the real party in interest--a motion which the trial court treated as a motion to substitute. That motion, together with a motion to dismiss, was considered in December, 1980. On January 5, 1981, the motion to substitute the insurance company was denied and the case was dismissed for failure to substitute a proper party defendant within a reasonable time. On appeal this court affirmed. Livingston v. Bias, 7 Kan.App.2d 287, 640 P.2d 362 (1982) (Livingston I ).

In the meantime plaintiff filed this action on June 12, 1981, naming as defendant the estate of the decedent Bias. Plaintiff also took steps to have the decedent's widow appointed as administratrix in Missouri, and she was served with summons. She filed a motion to dismiss which was overruled. Plaintiff eventually recovered a judgment for $12,250, and the estate brings this appeal.

The case depends on the interplay of three statutes: K.S.A. 60-518, K.S.A. 60-225(a )(1), and K.S.A.1982 Supp. 60-241(b ). The first 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." K.S.A. 60-518. Emphasis added.

To avail himself of this statute plaintiff in this suit was required to show that the dismissal in Livingston I was "otherwise than upon the merits." The trial court held it was, presumably because there was never an adjudication of fault or damages in that case as is customary in the usual decision "on the merits."

There are, however, other dispositions which operate as adjudications "upon the merits" even though they do not fit the customary pattern. Here we had an involuntary dismissal under K.S.A. 60-225(a )(1). As we noted in Livingston I:

"Substitution of parties and revivor of actions are different names for the same thing. The revivor of an action is in fact the substitution of new parties who have the right, under the substantive law, to go ahead with the prosecution or defense of the claim. Where an action has been commenced and a necessary party to the action dies, a procedure is required to bring into court the persons who have become, by right of succession under the substantive law, the real parties in interest. If such is not accomplished within a reasonable time, the action abates and is dismissed unless it is one of those referred to in K.S.A. 60-225(a )(2)." 7 Kan.App.2d 287, 640 P.2d 362, Syl. p 1.

In determining whether to dismiss under that statute the trial court has discretion to determine what is a reasonable time to move for substitution, but after determining that a reasonable time has expired without action it has no alternative but to dismiss.

The third relevant statute is K.S.A.1982 Supp. 60-241(b ). Plaintiff argues that the subsection covers only dismissals after trial to the court. This misreads the statute. It authorizes four different kinds of involuntary dismissals and also spells out the effect of dismissals, both under 60-241(b ) and under other authority. An involuntary dismissal may be ordered under 60-241(b ) for "failure of the plaintiff to prosecute or to comply with these sections [the rules of civil procedure] or any order of the court" or for failure to make a prima facie case in a trial to the court. Thus the subsection is not, as plaintiff suggests, limited to the fourth kind of dismissal. The subsection concludes:

"Unless the court in its order for dismissal otherwise specifies, a dismissal under this subsection and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under K.S.A. 60-219, operates as an adjudication upon the merits." Emphasis added.

The balance of 60-241 ("this section") covers voluntary dismissals in SUBSECTION (A ), COUNTERCLAIMS AND THE LIKE IN (C ), AND COSTS IN (D ). the dismissal of Livingston I was under K.S.A. 60-225(a )(1), and not under any of the provisions of 60-241. It therefore was covered by the language of 60-241(b ), "any dismissal not provided for in this section," and it was not a dismissal for lack of jurisdiction, improper venue, or failure to join a party.

Under what we perceive to be the plain language of 60-241(b ), a dismissal not under section 60-241 and not within one of its exceptions "operates as an adjudication on the merits" unless the order for dismissal "otherwise specifies." The order dismissing Livingston I was not under 60-241 and did not otherwise specify, and therefore was an adjudication upon the merits of that action.

Although cases in point are scarce, our conclusion is supported by at least two federal cases. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961), dealt with the closely comparable Federal Rule 41(b). There a prior denaturalization proceeding had been...