Read v. Miller

• Decision Date: 16 March 1990
• Docket Number: No. 63896,63896
• Citation: 788 P.2d 883,14 Kan.App.2d 274
• Parties: Laura E. READ, Appellee, v. Theresa A. MILLER, Appellant.
• Court: Kansas Court of Appeals

Page 883

788 P.2d 883

14 Kan.App.2d 274

Laura E. READ, Appellee, v. Theresa A. MILLER, Appellant.

No. 63896.

Court of Appeals of Kansas.

March 16, 1990.

Review Granted June 5, 1990.

Syllabus by the Court

1. K.S.A. 60-203(a) contains specific provisions regarding an extension of time for the period in which service of process will relate back to the date an action was filed. These specific provisions control over the general provisions for enlargement of time found in K.S.A.1989 Supp. 60-206(b).

2. Based on the clear and settled meaning of the language used in K.S.A. 60-203(a), the lack of legislative history to the contrary, and the effect of a contrary construction on a defendant's vested right in the defense provided by the statute of limitations, it is held that an extension of time for the period in which service of process will relate back to the date an action is filed must be sought and granted prior to the expiration of the original 90-day period provided by K.S.A. 60-203(a).

William P. Coates, Jr., and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., Lenexa, for appellant.

Steven R. McConnell, of McConnell & McMahon, Overland Park, for appellee.

Before DAVIS, P.J., and BRAZIL and GERNON, JJ.

DAVIS, Judge:

The defendant, Theresa A. Miller, filed a motion to dismiss the auto negligence action filed by Laura E. Read based upon the statute of limitations. The trial court denied the motion and certified its order for interlocutory appeal. We granted permission to appeal and hold that plaintiff's action is time-barred. We therefore reverse and remand with directions to dismiss plaintiff's action.

The facts are not in dispute. Plaintiff Laura Read and defendant Theresa Miller were involved in an automobile accident in Leavenworth County on September 20, 1986. Exactly two years later, on the day the statute of limitations expired (K.S.A.1989 Supp. 60-513[a], plaintiff filed her action in Wyandotte County.

The summons for defendant which listed defendant's address as "Rural Route 2 Box 61 V, Bonner Springs, Kansas," was returned on September 21, 1988, marked "No Service" with a typed notation at the bottom, "need a street address for service in Wyandotte County." A second summons was issued September 29, 1988, with added address instructions: "West on 32 Highway from Bonner Springs Stop Light approximately 5 miles to gravel road. Go south approximately 1 1/2 miles, House on left side of road, name on mailbox."

The second summons was returned on October 3, 1988, marked "No Service" with a typed notation: "unable to serve at above address, per Bonner Spring Fire Dept it is located in Tanglewood, which is in LEAVENWORTH COUNTY, KANSAS.".

On January 13, 1989, 115 days after filing her action, plaintiff obtained a third summons which was successfully served by the sheriff of Leavenworth County on January 17, 1989. The next day, plaintiff filed a motion for enlargement of time to serve defendant, stating in part:

"2. The plaintiff believed defendant resided in Wyandotte County, Kansas. However, it has been determined that the defendant resides in Leavenworth County, Kansas.

"3. An Alias Summons has been issued to the Sheriff of Leavenworth County, Kansas."

That same day, Judge Zukel signed the following order:

"The Court, being well and fully advised in the premises, finds that for good cause shown the plaintiff's Motion should be granted. The time for obtaining service of process is enlarged for a period of thirty (30) days."

The question presented is when plaintiff's action was commenced. We believe that the answer to this question depends upon the proper construction of K.S.A. 60-203(a).

The trial court held, however, that the extension could be granted independently of K.S.A. 60-203(a) under the provisions of K.S.A.1989 Supp. 60-206(b)(2). We first consider whether the trial court's application of K.S.A.1989 Supp. 60-206(b)(2) was correct. Application of K.S.A.1989 Supp. 60-206(b)

K.S.A.1989 Supp. 60-206(b)(2) provides:

"When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge's discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect."

Defendant argues that this statute does not apply because the specific language in K.S.A. 60-203(a) controls over the general language in K.S.A.1989 Supp. 60-206(b)(2). Defendant's point is well taken. Our Supreme Court has held:

"It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls." Szoboszlay v. Glessner, 233 Kan. 475, 479, 664 P.2d 1327 (1983).

We applied this rule to a similar question in Stanton v. KCC, 2 Kan.App.2d 228, 577 P.2d 367, rev. denied 225 Kan. 845 (1978). The appellants filed a notice of appeal out of time along with an application to the trial court for an extension of time based on excusable neglect. The trial court granted permission to file the appeal out of time. 2 Kan.App.2d at 229, 577 P.2d 367. This court dismissed, explaining:

"Unless legislative intent appears otherwise, a special statute which relates to particular persons or things will take precedence over a statute dealing with a subject in general. [Citations omitted.] K.S.A. 60-206 ... is a statute of general application, whereas K.S.A. 60-2103 ... is a statute dealing specifically with appellate procedure. Although subsection (b) of the former does provide for the enlargement of time for an act to be done where the failure to act was the result of excusable neglect, the latter permits an extension of time in which to take an appeal only upon a showing of excusable neglect based on failure of a party to learn of the entry of judgment. There is nothing in the record or elsewhere to our knowledge to indicate anything but that the legislature intended the specific provisions of K.S.A. 60-2103 to take precedence. We conclude that, in the absence of an affirmative showing that failure to file the notice of appeal within the prescribed thirty-day period was because of failure to learn of the entry of judgment, the district court was without authority to grant the extension of time." 2 Kan.App.2d at 229-30, 577 P.2d 367.

In Schroeder v. Urban, 242 Kan. 710, 711-12, 750 P.2d 405 (1988), the Supreme Court approved our decision in Stanton v. KCC; however, the court also recognized a "unique circumstances" exception to our holding. If a trial court grants an extension of time for filing a notice of appeal, an appeal filed during the extended period will be deemed timely filed, even though the trial court had no authority to extend the appeal period, if the extension was granted prior to the expiration of the original appeal period and the appellants relied to their detriment on the purported extension. This exception has no application to this case.

K.S.A. 60-203(a) contains specific provisions regarding an extension of time. These specific provisions control over the general provisions in K.S.A.1989 Supp. 60-206(b).

Application of K.S.A. 60-203(a)

Both parties rely upon K.S.A. 60-203(a), which provides:

"A civil action is commenced at the time of: (1) filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1)."

Defendant argues that the 30-day extension must be sought and granted before the 90-day period has expired. Plaintiff counters that, if the legislature had so intended, it would have said so expressly in the statute. Plaintiff instead argues that the 30-day extension may be sought and granted any time within 120 days after the petition is filed.

The rules this court must apply in construing statutes are well known. The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs when that intent can be ascertained from the statute. Taylor v. Perdition Minerals Group, Ltd., 244 Kan. 126, 133, 766 P.2d 805 (1988); Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 65, 734 P.2d 1083 (1987). Where the language of the statute is plain and unambiguous, the court must give effect to the intent of the legislature as expressed. Brasel v. State Board of Pharmacy, 238 Kan. 866, 869, 714 P.2d 1387 (1986); Layton v. Heinlein, 14 Kan.App. 104, 106, 782 P.2d 1254 (1989). In determining whether the language of the statute is clear or ambiguous, words and phrases should be construed according to the context and the approved usage of the language. Words and phrases in common use should be given their natural and ordinary meaning. Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 503, 720 P.2d 1063 (1986); Brasel, 238 Kan. at 869; Hessell v. Lateral Sewer District, 202 Kan. 499, 502, 449 P.2d 496 (1969) (citing K.S.A. 77-201 Second ).

The key word in K.S.A. 60-203(a)(1) is "extend." The meaning of "extend" is settled in both the English language and the law. "To extend is to stretch, or stretch out." Bank v. Heslet, 84 Kan. 315, 317, 113 P. 1052 (1911) (citing Webster's New International Dictionary). When 90 days expire with no extension, there is nothing left to extend, or stretch out....