Le v. Joslin

• Decision Date: 27 February 2009
• Docket Number: No. 98,907.,98,907.
• Citation: 202 P.3d 677
• Parties: Mai T. LE, Appellant, v. Paul S. JOSLIN, Special Administrator of the Estate of Dorothy K. Gibson, Deceased; and Curtis R. Payne, Appellees.
• Court: Kansas Court of Appeals

202 P.3d 677

Mai T. LE, Appellant, v. Paul S. JOSLIN, Special Administrator of the Estate of Dorothy K. Gibson, Deceased; and Curtis R. Payne, Appellees.

No. 98,907.

Court of Appeals of Kansas.

February 27, 2009.

David L. Nelson, of Wichita, for appellant.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees.

Before ELLIOTT, P.J., GREEN and MARQUARDT, JJ.

GREEN, J.

In this negligence action, Mai T. Le originally sued Dorothy Gibson for personal injuries that Le sustained during an automobile accident. Gibson passed away before Le was able to obtain service of process on her. Le later substituted Paul S. Joslin, Special Administrator of the Estate of Dorothy K. Gibson, Deceased, (Joslin) as a defendant for Gibson. Le now appeals from the trial court's order granting summary judgment to Joslin on three alternative grounds. First, Le contends that the trial erred in finding that good cause did not exist to support the order granting her an additional 30 days to obtain service of process on Dorothy Gibson. We disagree. The record demonstrates that when Le moved for an additional 30 days to obtain service of process on Gibson, she had not made sufficient efforts to locate and serve Gibson. As a result, Le failed to meet her burden under K.S.A. 60-203(a)(1) to show good cause for the 30-day extension to obtain service of process.

Next, Le maintains that the trial court erred in determining that K.S.A. 60-225, the statute pertaining to substitution of parties, was inapplicable here and that it was necessary for Le to amend her petition to name Joslin as a party. We again disagree. Under the plain language of K.S.A. 60-225, Joslin could be substituted for Gibson only if Gibson was a party to the lawsuit. Because Le never obtained service on Gibson before she died, Gibson never became a party to this lawsuit. In order to name Joslin as a defendant in the lawsuit, Le needed to move to amend her pleadings to include Joslin and to relate back the amendment to her original pleadings. Her failure to follow this procedure renders the court without jurisdiction in the matter against Joslin.

Finally, Le contends that the trial court erred in determining that the summons served upon Joslin was invalid. We again disagree. The summons with which Joslin was served was not issued to him and was served before he was a named defendant in the lawsuit. Because proper service of process was never obtained upon Joslin, the trial court was without jurisdiction in the matter against Joslin. Accordingly, we affirm.

On February 17, 2006, Le sued Gibson and Curtis Payne for personal injuries Le sustained from an automobile accident that occurred on February 20, 2004. No summons was issued when the lawsuit was filed. Payne was ultimately dismissed without prejudice from the lawsuit in April 2007. On May 11, 2006, Le obtained an order granting her an additional 30 days after the expiration of the statutory 90-day period following the date of filing of the lawsuit to serve Gibson with process. On that same day, Le, for the first time, requested the issuance of a summons for Gibson. On June 9, 2006, Le requested the issuance of an alias summons for Gibson.

Gibson died on June 2, 2006, before she was served with process in this lawsuit. On June 16, 2006, Le filed a petition in Lyon County District Court seeking the appointment of a special administrator for Gibson's estate. On that same day, Joslin was appointed as special administrator of Gibson's estate. Also on that day, Joslin was served with the alias summons issued to Gibson.

On June 16, 2006, Le moved to substitute Joslin for Gibson as a defendant in the lawsuit. On June 30, 2006, the trial court issued an order substituting Joslin for Gibson as a defendant in the lawsuit. On July 20, 2006, Joslin answered Le's petition. Joslin asserted that Le's action was barred by the statute of limitations and also asserted the defense of invalid service of process.

In March 2007, Joslin moved for summary judgment. Joslin contended that Le's claim against him was barred by the 2-year statute of limitations under K.S.A. 60-513(a)(4). Joslin raised the following four arguments as to why the service of process on June 16, 2006, was ineffective to commence the lawsuit against him in a timely manner: (1) Le failed to demonstrate to the trial court that she had good cause for requesting the extension of the 90-day statutory period for service of process and, therefore, the order granting the 30-day extension was invalid; (2) Le never properly made Joslin a party to the lawsuit within the limitations period because she never moved to amend her petition under K.S.A. 60-215; (3) Le served Joslin with service of process before he was named as a defendant in the lawsuit and, therefore, the service was ineffective; and (4) Joslin did not have the authority to accept service for and defend Le's lawsuit under the letters of special administration.

After holding a nonevidentiary hearing, the trial court granted summary judgment in favor of Joslin. The trial court agreed with Joslin on his first three arguments and, therefore, granted summary judgment on those three grounds. On Joslin's fourth argument, the trial court found that the issue was moot.

Standards of Review

An appellate court's standard of review in summary judgment cases is well established:

"`"`Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'"' [Citations omitted.]" Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).

Additionally, in order to address Le's arguments on appeal, this court must interpret several statutes. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court's first task is to "ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning." State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). "When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it." In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36, 172 L.Ed.2d 239 (2008).

I. Was there good cause for Le to be given a 30-day extension to obtain service of process?

First, Le argues that the trial court erred in determining that good cause did not exist to support the ex parte order granting her an additional 30 days in which to obtain service upon Gibson.

K.S.A. 60-203(a), which governs the timing of the commencement of an action, states as follows:

"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)." (Emphasis added.)

Thus, in order for a plaintiff's lawsuit to be "commenced" on the date it is filed, the plaintiff must obtain service of process within 90 days of the filing date. K.S.A. 60-203(a)(1). The trial court may extend that period to 120 days upon a showing of good cause by the plaintiff. K.S.A. 60-203(a)(1). The showing of good cause by the plaintiff is a condition precedent to the trial court's decision of whether to grant the 30-day extension under K.S.A. 60-203(a)(1).

As in many cases, the exact date of the "commencement" of this action is crucial in resolving whether it is barred by the statute of limitations. See Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986). Here, the applicable statute of limitations for Le's claims is 2 years under K.S.A. 60-513(a)(4). As a result, the statute of limitations for Le's claims ran on February 20, 2006. Le filed her petition on February 17, 2006, which was 3 days before the statute of limitations ran on her claims. Le did not serve her petition until after the statute of limitations had expired. Thus, to determine whether Le "commenced" her action within the statute of limitations period, we must examine whether Le properly obtained service of process within the time limits of K.S.A. 60-203(a)(1).

In order for Le's action to be commenced on the date of filing (February 17, 2006), Le had until May 18, 2006, to obtain service of process, unless the trial court extended the date by an additional 30 days upon a showing of good cause by Le. Le points out that she made application for and obtained an order from the trial court granting her a 30-day extension under K.S.A. 60-203(a)(1) to obtain service of process. The order reads...