Porter v. Stormont-Vail Hospital

• Decision Date: 05 December 1980
• Docket Number: No. 51136,STORMONT-VAIL,51136
• Citation: 621 P.2d 411,228 Kan. 641
• Court: Kansas Supreme Court
• Parties: Danny R. PORTER, Appellant, v.HOSPITAL, Appellee.

Page 411

621 P.2d 411

228 Kan. 641

Danny R. PORTER, Appellant, v. STORMONT-VAIL HOSPITAL, Appellee.

No. 51136.

Supreme Court of Kansas.

Dec. 5, 1980.

Syllabus by the Court

In an action by a judgment debtor against his creditor seeking actual and punitive damages for malicious prosecution, false arrest, false imprisonment and abuse of process, the record is examined and it is held the trial court did not commit error in granting summary judgment to the defendant.

Leonard W. McAnarney, Lyndon, argued the cause and was on brief, for appellant.

Justice B. King, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and Edwin D. Smith, Topeka, of the same firm, and Wayne T. Stratton and Patrick Salsbury of Goodell, Cogswell, Stratton, Edmonds, Palmer & Wright, Topeka, were with him on brief, for appellee.

HOLMES, Justice:

Plaintiff-appellant, Danny R. Porter, appeals from an order of the district court granting summary judgment to the defendant-appellee, Stormont-Vail Hospital. This case grows out of an action originally filed by Stormont-Vail against Porter in the magistrate court of Shawnee County to collect a hospital bill for services rendered to Porter. Stormont-Vail recovered a default judgment against Porter for the sum of $478.18. The judgment remains unpaid. Post-judgment collection procedures were instituted in the magistrate court and on three occasions between April, 1974, and January, 1977, Porter was arrested on bench warrants issued by the judge of the magistrate court upon Porter's failure to appear in response to court orders directing him to appear. Porter was incarcerated briefly on the first two bench warrants and posted a bond at the time of his arrest on the third. He then filed this action in the district court seeking actual and punitive damages based upon allegations of malicious prosecution, false arrest, false imprisonment and abuse of process. Following discovery both parties filed motions for summary judgment and the motion of the defendant was sustained.

K.S.A. 60-256(c) provides in part:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

We do not deem it necessary to once again set forth the basic principles which apply when a motion for summary judgment is before the court. They were recently set forth at length in Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979).

The learned trial judge filed an extensive memorandum decision and order as follows:

"MEMORANDUM OF DECISION AND ORDER

"The Motion for Summary Judgment of defendant was heard by the Court and taken under advisement. The matter comes on now for decision.

"The Court finds the facts, for the purposes of this motion, to be as follows:

"In the early part of 1973, plaintiff entered Stormont-Vail Hospital and received medical services with respect to a knee operation, and these services had the fair and reasonable value of $478.18.

"Plaintiff subsequently prosecuted a workmen's compensation claim with respect to the knee operation and recovered a sum of $2,600.00.

"Neither plaintiff nor the workmen's compensation insurance carrier ever paid the aforementioned amount of $478.18 owing to Stormont-Vail Hospital as a result of services rendered to plaintiff with respect to his knee operation.

"Upon plaintiff's failure to pay the amount of $478.18 upon demand, the defendant Stormont-Vail Hospital filed suit in the Magistrate Court of Shawnee County, Kansas, against plaintiff Porter seeking recovery of the amount of $478.18 with interest at the rate of eight percent (8%) per annum, and for costs.

"On the 30th day of March, 1974, Richard Tucker, Sheriff of Rice County, Kansas, received a Summons and copy of Petition from the Magistrate Court of Shawnee County, Kansas, involving the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, for the purpose of serving Danny R. Porter, defendant in that action.

"On the 1st day of April, 1974, Sheriff Richard Tucker personally served Danny R. Porter with the Summons and copy of Petition in Stormont-Vail Hospital v. Porter at 9:00 a. m.

"On April 1, 1974, Sheriff Richard Tucker made return of Summons to the Magistrate Court of Shawnee County, Kansas, and caused the same to be mailed to such Court.

"By inadvertence, Sheriff Tucker failed to sign his name to the Sheriff's Return of Summons mentioned above, but nevertheless states that he personally served Danny R. Porter at the date and time mentioned.

"Pursuant to the Summons personally served upon plaintiff Porter on April 1, 1974, plaintiff Porter was ordered to appear in the Magistrate Court of Shawnee County, Kansas, at 11:00 o'clock a. m., April 24, 1974, and was informed that should he either fail to appear before the Court, personally or by counsel, at that time, or prior to that time file with the court a pleading in response to the Petition, judgment by default would be taken against him for the relief demanded in the Petition; plaintiff Porter failed to appear either personally or by counsel before the Court on April 24, 1974, and further failed to file any pleading in response to the Petition, any objection to venue, or any request for additional time; as a consequence of plaintiff's failure to appear or timely plead, a default judgment was entered against him by the Court in accordance with K.S.A. 61-1721 for the amount requested in the Petition, said amount being $478.18, with interest at the rate of eight percent (8%) per annum from February 13, 1973, and for costs.

"On April 30, 1974, the attorney for defendant Stormont-Vail Hospital made application for examination of judgment debtor Porter to the Magistrate Court, and pursuant to such application, the Court entered an order for plaintiff Porter to personally appear before the Court at 11:00 o'clock a. m. on the 22nd day of May, 1974; the application, and the order issued pursuant thereto, were in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices, and procedures of the Magistrate Court.

"Plaintiff Porter was personally served with the aforementioned order to appear, but failed to appear at the time indicated.

"As a result of plaintiff's failure to appear on May 22, 1974, as ordered, a citation in contempt was issued by the Court ordering plaintiff to appear before the Court on July 3, 1974, at 11:00 o'clock a. m. and show cause, if any, why he should not be punished for contempt of Court; this citation in contempt was personally served upon plaintiff, but plaintiff failed to appear before the Court at the time indicated.

"As a consequence of plaintiff Porter's failure to appear on July 3, 1974, a Bench Warrant was issued on July 10, 1974, ordering that plaintiff Porter be arrested and brought before the Court to answer to the charge of failure to appear as ordered; this Bench Warrant was issued in accordance with Chapter 61 of the Kansas Statutes Annotated, and the rules, practices and procedures of the Magistrate Court.

"Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested on September 24, 1974, and brought before the Court on September 25, 1974, to answer to the charge of contempt for failure to appear as ordered; at that time the matter on contempt was held in abeyance by the Court, and plaintiff was ordered to appear October 9, 1974, at 11:00 o'clock a. m.

"Plaintiff Porter failed to appear as ordered on October 9, 1974, and as a consequence, a Bench Warrant was issued for plaintiff's arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.

"Pursuant to the aforementioned Bench Warrant, plaintiff was again arrested on July 13, 1976, and brought before the Court on July 14, 1976; at that time, the matter of contempt of Court was held in abeyance, and plaintiff Porter was ordered to appear before the Court on August 11, 1976.

"Plaintiff Porter appeared before the Court on August 11, 1976, pursuant to the aforementioned order, and the matter of contempt of Court was held in abeyance; plaintiff was ordered to re-appear before the Court on September 8, 1976.

"Plaintiff Porter failed to appear as ordered on September 8, 1976, and as a consequence, a Bench Warrant was issued for plaintiff's arrest by the Magistrate Court of Shawnee County in accordance with Chapter 61, Kansas Statutes Annotated, and the rules, practices and procedures of the Court.

"Pursuant to the aforementioned Bench Warrant, plaintiff Porter was arrested in January of 1977; he was not, however, transported to Shawnee County at the time of this arrest, but rather was allowed to post a bond of $50.00 thereby assuring his appearance before the Magistrate Court of Shawnee County; upon the posting of the bond, plaintiff was released from custody upon condition that he appear before the Magistrate Court of Shawnee County when so ordered.

"There have been no further proceedings in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486, since plaintiff's arrest, and subsequent release from custody in January of 1977.

"Plaintiff has at no time filed an appeal from the judgment entered against him in the case of Stormont-Vail Hospital v. Danny R. Porter, Case No. 74-CV-486.

"Plaintiff claims that the judgment rendered against plaintiff is void for failure of the Sheriff of Rice County, Kansas to sign (the return of service); that plaintiff has been maliciously prosecuted, abused with process and falsely arrested and imprisoned. Defendant maintains that it is entitled to judgment, as a matter of law, on the foregoing claims.

"The Court finds and concludes as follows:

"Plaintiff's claims appear to stem from his assertion that...