Slayden v. Sixta

• Decision Date: 17 January 1992
• Docket Number: No. 65671,65671
• Citation: 250 Kan. 23,825 P.2d 119
• Parties: Roger E. SLAYDEN, Appellant, v. Jennifer S. SIXTA, Appellee.
• Court: Kansas Supreme Court

Page 119

825 P.2d 119

250 Kan. 23

Roger E. SLAYDEN, Appellant, v. Jennifer S. SIXTA, Appellee.

No. 65671.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. The statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant. However, the burden of proving facts sufficient to toll the statute of limitations is upon the plaintiff.

2. A plaintiff does not sustain the burden of proving facts sufficient to toll the statute of limitations merely by demonstrating that a defendant was physically absent from the state. It must also be shown that defendant's whereabouts while outside the state were unknown and that service of process could not have been effected under K.S.A. 60-301 et seq. during such absence.

3. There is neither "absence" nor "concealment" as those terms are used in K.S.A. 60-517 if the whereabouts of the defendant are known and service of summons can be perfected under K.S.A. 60-301 et seq.

4. A timely filing, service of process, and a just adjudication on the merits of the action is what our legislature intended by adopting the Code of Civil Procedure.

5. An error by a clerk of the district court when addressing a summons should not deprive a litigant of the right to an adjudication of the issues on the merits. Under the unique circumstances of this case, the 40-day delay in serving the summons caused by an error of the clerk of the district court will not be charged to the plaintiff.

Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan and Glassman, Topeka, argued the cause, and David W. White, of the same firm, was with him on the brief, for appellant.

Paul Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Leonard R. Frischer, of the same firm, was on the brief, for appellee.

LOCKETT, Justice:

Roger E. Slayden was a passenger in an automobile that was struck by a car driven by Jennifer S. Sixta. Slayden sued Sixta to recover damages for injuries he sustained in the accident. Slayden did not obtain service on Sixta until 97 days after the action had been filed. The trial court held Slayden's action was barred by the two-year limitation of K.S.A.1990 Supp. 60-513(a)(4) and dismissed his petition. The Court of Appeals affirmed, 15 Kan.App.2d 625, 813 P.2d 393, rejecting Slayden's assertions that (1) the two-year limitation was tolled under K.S.A. 60-517 by the absence of Sixta from the state, and (2) the 90-day relation back period to obtain service under K.S.A.1990 Supp. 60-203 was extended by the "unique circumstances" doctrine of Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). We granted Slayden's petition for review.

On October 25, 1987, Roger Slayden was injured when the car in which he was a passenger was struck by a car driven by Jennifer Sixta. At that time, Sixta was a resident of Kansas and lived at 4907 West 71st Terrace in Prairie Village, Kansas. In April 1988, Sixta moved from Prairie Village to St. Charles, Missouri. Although Sixta's insurance carrier knew she had moved, it did not inform Slayden's counsel. Slayden's attorney negotiated with Sixta's insurance company, State Farm Insurance, for nearly two years. During that period, Slayden's counsel had more than 12 contacts by phone and by letter with Sixta's insurance carrier but never inquired of Sixta's address.

Under the statute of limitations, K.S.A.1990 Supp. 60-513, Slayden was required to file suit within two years from the date of the accident. On October 25, 1989, exactly two years after the accident, Slayden filed this action. The petition alleged that Sixta was a resident of Prairie Village, Kansas, and summons was issued for service at 4907 West 71st Terrace in Prairie Village, Kansas. On November 7, 1989, this summons was returned, unserved, with the notation that Sixta had "[m]oved; somewhere in St. Louis." As noted, Sixta had moved in April 1988.

On the date the original summons was returned unserved, Slayden's counsel ordered a "post office tracer" seeking the correct address. On November 13, 1989, the post office tracer was returned indicating Sixta's correct address to be 2278 North Village Drive, St. Charles, Missouri. On December 6, 1989, 23 days after obtaining Sixta's correct address, plaintiff procured the issuance of an alias summons. The summons was issued by the district court clerk's office with the incorrect address of "1178 North Village Drive." Slayden's attorney was not aware of the clerk's mistake until January 16, 1990, when the summons was returned, unserved, indicating there was no such address on North Village Drive. On January 23, 1990, 90 days after the petition was filed, a new alias summons was issued bearing Sixta's correct address. On January 30, 1990, 97 days after the petition had been filed, personal service was obtained.

Sixta filed a motion to dismiss the action on grounds the action was commenced beyond the two-year period of limitations. This motion was granted by the trial court. Slayden filed a motion for reconsideration. The trial court denied the motion, holding (1) the statute of limitations was not tolled by K.S.A. 60-517 because the plaintiff, in the exercise of due diligence, should have known of the defendant's whereabouts; (2) the "unique circumstances" doctrine of Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405, applies only to enlargement of jurisdictional time limits to file an appeal and, further, Slayden had time before the expiration of the original 90-day period to obtain a 30-day extension under K.S.A.1990 Supp. 60-203; and (3) Read v. Miller, 14 Kan.App.2d 274, 788 P.2d 883, aff'd 247 Kan. 557, 802 P.2d 528 (1990), prevented a district court from granting an additional 30 days for service of process pursuant to K.S.A.1990 Supp. 60-203 after the original 90-day period has expired. Slayden appealed.

When affirming the district court, the Court of Appeals noted a defendant is not "absent" from the state under K.S.A. 60-517 unless plaintiff does not know defendant's whereabouts and plaintiff cannot with due diligence determine those whereabouts. At all times relevant, the Court of Appeals found, Sixta's whereabouts were discoverable with the exercise of a minimum of effort. Thus, Sixta was not "absent" within the meaning of the statute and the statute of limitations was not tolled by K.S.A. 60-517. The court stated the "unique circumstances doctrine," set out in Schroeder v. Urban, applies to appeals which are otherwise untimely, and requires reliance on "judicial action" rather than on a clerical mistake by a clerk of the district court. The Court of Appeals reasoned that because Slayden's case is factually different the doctrine did not apply and the court declined to extend the doctrine. The Court of Appeals asserted the unique circumstances doctrine should be applied only where it is the sole remedy available to the party who has relied on a court's action. Here, it found, Slayden could have and should have applied for a 30-day extension under K.S.A.1990 Supp. 60-203 but failed to do so. Because this relief was available, the court held the circumstances were not unique and the doctrine did not apply.

K.S.A. 60-517 provides:

"If when a cause of action accrues against a person he or she be out of the state, or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter."

K.S.A.1990 Supp. 60-203 states:

"(a) 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 ... 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 ... if service of process ... is not made within the time specified by provision (1)."

The statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant. However, the burden of proving facts sufficient to toll the statute of limitations is upon the plaintiff. A plaintiff does not sustain the burden of proving facts sufficient to toll the statute of limitations by demonstrating merely that a defendant was physically absent from the state. It must also be shown that defendant's whereabouts while outside the state were unknown and that service of process could not have been effected under K.S.A. 60-301 et seq. during such absence. There is neither "absence" nor "concealment" as those terms are used in K.S.A. 60-517 if the whereabouts of the defendant are known and service of summons can be perfected under K.S.A. 60-301 et seq. Gideon v. Gates, 5 Kan.App.2d 23, 611 P.2d 166, rev. denied 228 Kan. 806 (1980).

Slayden filed suit on October 25, 1989 but Sixta was not served until January 30, 1990, some 97 days later. Thus, under K.S.A.1990 Supp. 60-203, without an extension of time by the trial court, service was not obtained within 90 days of the filing of the petition--beyond the two-year limitation of K.S.A.1990 Supp. 60-513. Unless the statute of limitations was tolled by 60-517 or there are circumstances which would override the effect of the running of the statute of limitations, Slayden's claim is time barred.

In Read v. Miller, 247 Kan. 557, 802 P.2d 528 (1990), a case relied on by the trial court in barring plaintiff's action...