Yoh v. Hoffman, 85,815.

• Citation: 29 Kan. App.2d 312,27 P.3d 927
• Decision Date: 15 June 2001
• Docket Number: No. 85,815.,85,815.
• Parties: DONNA YOH, Appellee, v. JASON HOFFMAN, SPECIAL ADMINISTRATOR FOR THE ESTATE OF FRANK TESKE, Appellant.
• Court: Court of Appeals of Kansas

29 Kan. App.2d 312

27 P.3d 927

DONNA YOH, Appellee, v. JASON HOFFMAN, SPECIAL ADMINISTRATOR FOR THE ESTATE OF FRANK TESKE, Appellant.

No. 85,815.

Court of Appeals of Kansas.

Opinion filed June 15, 2001.

Craig C. Blumreich, of Gehrt & Roberts, Chartered, of Topeka, for appellant.

Fred Spigarelli and Timothy A. Short, of Spigarelli, McLane & Short, of Pittsburg, for appellee.

Before PIERRON, P.J., GREEN and BEIER, JJ.

BEIER, J.:

Jason Hoffman, Special Administrator for the Estate of Frank Teske, appeals the district court's denial of his motion for summary judgment in Donna Yoh's personal injury action. The district judge rejected the Teske estate's statute of limitations defense. We affirm.

A brief review of the facts is necessary to an understanding of our decision.

Plaintiff Yoh was injured in a May 23, 1996, car accident. Teske was the driver of the other car and was insured by Allied Mutual Insurance Company (Allied). Allied began corresponding with Yoh. Several months later, Teske died. Neither Teske's widow nor Allied informed Yoh of this fact.

On April 22, 1998, plaintiff filed this personal injury action against Teske, contending his negligence caused the accident. The return of service indicated that Teske had been served by delivery of the petition and summons to his residence.

On May 18, 1998, attorney Craig Blumreich filed an answer on behalf of Teske, signing the pleading as "Attorneys for Defendant." The answer asserted numerous affirmative defenses, including insufficient process and service of process, lack of personal jurisdiction, and lack of capacity, but it said nothing about Teske's death almost a year earlier. No motion was filed to adjudicate any of the asserted defenses.

Yoh and her counsel remained in the dark about Teske's death until March 15, 1999, when counsel was finally informed during a case management conference. Yoh filed a motion to amend the petition to name Hoffman on June 9, 1999, and the amended petition was filed July 1, 1999.

The estate filed a motion for summary judgment, contending the statute of limitations had expired before Yoh served the special administrator. The district judge found the suit was properly filed within the tort statute of limitations under K.S.A. 60-203(b) and K.S.A. 2000 Supp. 60-215(c). She further found that defendant's argument invoking K.S.A. 59-2239 to bar the claim in a probate action was moot. Plaintiff prevailed on the merits and was awarded damages of $30,000.

"Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal, the Court of Appeals applies the same standards as the trial court." Dawson v. Givens Const. Co., 27 Kan. App.2d 1042, 1046, 11 P.3d 81, rev. denied 270 Kan. 897 (2000). Likewise, "[t]he interpretation and application of a statute of limitations is a question of law for which the court's review is unlimited." Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).

K.S.A. 60-203 governs when a suit is commenced:

"(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 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).

"(b) If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff."

The district judge quoted Grimmett v. Burke, 21 Kan. App.2d 638, 647-48, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), for its interpretation of the purported service provision of 60-203(b):

"We hold that before it can be said that service has `purported to have been made,' it must be shown that a defendant was given actual notice of having been sued. We also conclude that the following factors should exist: (1) The original service must have `appeared' to be valid and the returns by the sheriffs office or other process servers must indicate that the service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service."

The district judge correctly noted that the original residential service on Teske appeared to be valid and that the plaintiff believed in good faith she had good service until informed otherwise at the March 1999 case management conference. Reading 60-203 liberally, as encouraged by Hughes v. Martin, 240 Kan. 370, 373-76, 729 P.2d 1200 (1986), the district judge discounted the argument that the purported service had not actually informed the administrator of Teske's estate because he had not yet been appointed. It was enough that the insurance company was notified, she said. The judge also said that plaintiff had no reason to know service was being contested because no motion to dismiss on insufficiency of process or service of process ever followed the original answer's invocation of those defenses. She also regarded the ultimate service of the amended petition as within the 90-day time period set forth in 60-203(b) because no formal adjudication of the insufficiency of service had ever occurred.

We disagree with this application of 60-203(b). Without a formal adjudication on the merits of a defense of insufficiency of process or service of process, we would not reach the Grimmett factors or apply K.S.A. 60-203(b).

We agree with the district judge, however, that K.S.A. 2000 Supp. 60-215(c) would save the plaintiff's cause of action from a statute of limitations bar. Under 60-215(c),

"[a]n amendment of a pleading relates back to the filing of the original pleading when:

"(1) The claim or defense asserted in the amended pleading

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