Vorhees v. Baltazar

• Decision Date: 16 March 2007
• Docket Number: No. 94,123.,94,123.
• Citation: 153 P.3d 1227
• Parties: Barry D. VORHEES, Appellant, v. Francisco J. BALTAZAR and The Administrator of the Estate of Francisco J. Baltazar, Appellees.
• Court: Kansas Supreme Court

153 P.3d 1227

Barry D. VORHEES, Appellant, v. Francisco J. BALTAZAR and The Administrator of the Estate of Francisco J. Baltazar, Appellees.

No. 94,123.

Supreme Court of Kansas.

March 16, 2007.

Patrick R. Miller, of Dezube Miller, P.A., of Overland Park, argued the cause and was on the brief for appellant.

Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by NUSS, J.:

Barry Vorhees filed suit against Francisco J. Baltazar, whom he knew to be deceased, and against the unappointed administrator of Baltazar's estate for personal injuries that Vorhees sustained in a two-vehicle accident. Although an administrator was eventually appointed, the district court dismissed the suit, and the Court of Appeals reversed in Vorhees v. Baltazar, No. 94,123, 130 P.3d 148, 2006 WL 619230, unpublished opinion filed March 10, 2006. This court granted the administrator's petition for review; our jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the Court of Appeals err in allowing Vorhees to docket his appeal out of time? No.

2. Did the district court err in dismissing Vorhees' suit? Yes.

3. Was service of process effective upon the Administrator? Yes.

Accordingly, we affirm the Court of Appeals, reverse the district court, and remand for further action consistent with this opinion.

FACTS

The facts are not in dispute. On February 12, 2002, Barry D. Vorhees and Francisco J. Baltazar were the drivers involved in a two-vehicle accident. Baltazar died that day, and Vorhees suffered severe injuries. On January 26, 2004, 17 days before the statute of limitations was to run, Vorhees filed suit against "Francisco J. Baltazar and the Administrator of the Estate of Francisco J. Baltazar" in the Linn County District Court. The petition recites that Baltazar was deceased, previously resided at 121 W. 4th, # 704, Pittsburg, Kansas, and could "be served through the administrator of his estate."

A summons for the administrator of Baltazar's estate was issued that same day. However, 8 days later it was returned unserved because the administrator was "not known."

On February 11, 2004, the day before the statute of limitations was to run, Vorhees filed a "Petition for Issuance of Letters of Administration" pursuant to K.S.A. 59-2201 et seq. in the Linn County District Court, incorrectly reciting that Baltazar had lived in Linn County in "Pittsburg, Kansas." He requested that one Zachary S. Gerber be appointed as administrator and be issued letters of administration.

On April 22, 2004, Vorhees filed for a 30-day extension to serve the administrator. He alleged that venue for appointment of an administrator had been transferred to Crawford County—site of Pittsburg—and that appointment had not yet been made. The Linn County District Court granted Vorhees' motion, stating that "[p]ursuant to K.S.A. 60-203(a), Plaintiff shall have up to and including May 26, 2004, in which to serve Defendants."

On May 11, 2004, 2 years and approximately 3 months after the date of the accident, the Crawford County District Court appointed Steven Horak as the administrator of Baltazar's estate (the Administrator). After finding that Horak, "named by petitioner as proposed administrator of the estate of Francisco J. Baltazar, having been duly appointed and qualified as administrator," the court issued letters of administration, incorrectly labeled "Letters Testamentary."

Approximately 2 weeks later, the Administrator went to Vorhees' attorney's office where the attorney's law clerk presented him with copies of the summons, petition, and other probate papers. In the clerk's presence, the Administrator executed the "Return on Service of Summons," which stated that the Administrator "acknowledge[d] receipt of service of summons and petition in the above entitled case this 24th day of May, 2004." Vorhees never took any steps to amend his original petition, i.e., to formally acknowledge that Horak had been appointed as administrator.

On June 14, 2004, the Administrator filed a motion to dismiss, asserting that Vorhees had failed to commence the suit within the statute of limitations because he sued "a deceased person, known to be deceased at the time the Petition was filed, and against a nonexistent administrator, also known not to exist at the time the Petition was filed." The motion also alleged insufficiency of process and insufficiency of service of process because of purported deficiencies in the law clerk's authority to serve.

The district court granted the motion to dismiss, reasoning that neither defendant had the capacity to be sued before the statute of limitations ran:

"No entity with the capacity to be sued ever existed during the entire two year period of the statute of limitations. Service of Process cannot `relate back' if there is no legal entity to relate back to. . . . [T]he statute of limitations bars plaintiff's claim and this case should be and is hereby dismissed."

After Vorhees filed a motion to reconsider, the district court concluded that it lacked jurisdiction to hear the case.

The Court of Appeals reversed, holding that the district court had subject matter jurisdiction; Vorhees timely commenced the action before the statute of limitations lapsed as described in K.S.A. 60-203(a); and service was properly effected upon the Administrator.

ANALYSIS

Issue 1: The Court of Appeals did not err in allowing Vorhees to docket his appeal out of time.

The threshold question on appeal is whether the Court of Appeals erred in allowing Vorhees to docket his appeal out of time. If so, the rest of the appellate issues are moot. The Administrator specifically asserts that Vorhees failed to make a showing of excusable neglect for his late filing.

The district court entered its order denying Vorhees' motion for reconsideration on January 19, 2005. Vorhees filed his timely notice of appeal on January 24, 2005, and on March 9 filed a motion for leave to docket out of time, asserting:

"3. Appellant's counsel did not receive the documents that are required to accompany the docketing statement within the requisite time for filing the docketing statement.

"4. Appellant's counsel has not obtained a certified file stamped copy of the Notice of Appeal, Order on Appellant's Motion for Reconsideration, Order of Dismissal and all post-hearing motions in the above-captioned matter. These are included herein for filing with the remainder of the materials required for docketing this appeal. These combined documents complete the requirement for docketing the appeal."

On March 15, 2005, the Administrator filed his response, arguing that Vorhees' motion should be denied because the motion reveals "not excusable neglect but simple neglect." Three days later, the Court of Appeals granted Vorhees' motion, noting the Administrator's response.

Supreme Court Rule 2.04 (2006 Kan. Ct. R. Annot. 11) states that within 21 days of filing the notice of appeal, the appellant "shall" obtain and file various pleadings with the court. Based on the language of Rule 2.04, the Administrator argues that Vorhees was required to file the necessary documents by February 14, 2005; they were not actually filed, however, until March 18, 2005.

The Administrator further asserts that the Court of Appeals should have dismissed the appeal pursuant to Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34). See Carson v. Eberth, 3 Kan.App.2d 183, 185, 592 P.2d 113 (1979) (if an appeal is docketed late, remedy lies under Rule 5.05 under which dismissal is discretionary with the appellate court). Rule 5.05 states: "On the motion of a party . . . , the appellate court may dismiss an appeal on account of a substantial failure to comply with the rules of the court." (Emphasis added.)

As Carson states, dismissal under Rule 5.05 is discretionary. Discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). Although the Administrator acknowledges this standard, he fails to show the Court of Appeals abused its discretion by denying his motion to dismiss the appeal for Vorhees' failure to comply with the rules of the court. See 276 Kan. at 454, 78 P.3d 55 (party who asserts abuse of discretion bears the burden of showing it). Rather, he essentially asserts that Vorhees should have given better reasons for docketing late. Additionally, the Court of Appeals has acknowledged that jurisdictional rules should be read liberally "to allow litigants the opportunity to have their claims heard and determined." Sanders v. City of Kansas City, 18 Kan.App.2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052, 114 S.Ct. 1611, 128 L.Ed.2d 339 (1994).

We conclude the Court of Appeals did not abuse its discretion.

Issue 2: The district court erred in dismissing Vorhees' suit.

Jurisdiction

In denying Vorhees' motion for reconsideration, the district court asserted that it had no jurisdiction:

"In effect, the plaintiff now argues that since an estate was opened one day prior to the running of the statute of limitations, the subsequent appointment of the special administrator several months later should relate back to the opening of the estate.

. . . .

"The mere fact that the plaintiff sought to open an estate one day prior to the expiration of the applicable statute of limitations does not save this action. The appointment of the special administrator well after the statute of limitations has expire[d] still represents a bar to the Court asserting jurisdiction over this action. See Moore v. Luther, 29 Kan.App.2d 1004 (2001) and Deeds v. Estate of Barker, 74 P.3d 594 (2003)." (Emphasis added.)

The Court of Appeals reviewed the issue of jurisdiction, but ruled that jurisdiction existed,...