Opinion
No. 108,132.
2013-05-24
Roger GULICK, Appellant, v. KANSAS DEPARTMENT OF WILDLIFE AND PARKS, Appellee.
Appeal from Greenwood District Court; Janette L. Satterfield, Judge. Roger Green, of Law Office of Roger Green, LLC, of Grand Junction, Colorado, for appellant. James P. Nordstrom and Samuel A. Green, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, for appellee.
Appeal from Greenwood District Court; Janette L. Satterfield, Judge.
Roger Green, of Law Office of Roger Green, LLC, of Grand Junction, Colorado, for appellant. James P. Nordstrom and Samuel A. Green, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Roger Gulick appeals from the district court's order of dismissal of his lawsuit filed against the Kansas Department of Wildlife and Parks (Department). Specifically, Gulick contends on appeal that the district court erred in dismissing his lawsuit against the Department for failure to properly serve the Department with process. In addition, the Department cross-appeals from the district court's denial of its motion for summary judgment. Because we conclude that Gulick failed to obtain proper service of process on the Department and that the statute of limitations bars his negligence claim, we affirm the dismissal.
Facts
On May 14, 2009, Gulick was fishing in the recreational area at the Fall River State Park when a wildlife and parks officer saw him smoking marijuana. The officer arrested Gulick for possession and placed him in handcuffs. The officer then placed Gulick into the passenger side of his truck so that he could transport him to the Greenwood County Jail. Unfortunately, as the officer was leaving the area, he backed into a tree. As a result of the accident, Gulick claims to have suffered significant physical injuries.
On May 10, 2011, Gulick filed a petition against the Department alleging negligence. In the petition, Gulick stated that service of process could be obtained on the Department by serving its Chief Legal Counsel, Chris Tymeson. From a review of the record, it appears that a summons and petition was delivered U.S. Mail to Tymeson at his office on 1020 S. Kansas Avenue, Topeka, Kansas 66612.
The Department filed an answer on May 23, 2011. In its answer, the Department denied that service could be obtained on it by serving its Chief Legal Counsel. Moreover, the Department alleged insufficient service of process as an affirmative defense. The Department also alleged that Gulick failed to serve a K.S.A. 12–105b notice of claim before filing the lawsuit.
On October 28, 2011, the Department filed a motion for summary judgment, asserting that it was immune from liability under the recreational use exception of the Kansas Tort Claims Act. K.S.A. 75–6103(a). Gulick filed a motion to continue a hearing on the summary judgment motion and to extend all other court dates including discovery cutoff on January 3, 2012.
On March 22, 2012, the district court denied the Department's motion for summary judgment. In doing so, the district court found that although there were no questions of material fact, the recreational use exception did not apply. The district court also found this case to be distinguishable from other cases where the recreational use exception had been applied because Gulick was in the custody of the State at the time of the accident.
A few days later, on March 28, 2012, the Department filed a motion to dismiss, alleging insufficiency of service of process. The Department argued that service on its Chief Legal Counsel was insufficient as a matter of law and that the statute of limitations had expired. The Department noted that Gulick never attempted to cure the insufficiency even though it was alleged as a defense in its answer and that the 90–day relation back period under K.S.A. 60–203(a) had passed.
The district court heard the motion to dismiss on April 17, 2012. The following day, a journal entry of dismissal was entered by the district court dismissing the Gulick's lawsuit for failure to properly or timely serve the Department. Because defense counsel failed to comply with Kansas Supreme Court Rule 170 (2012 Kan. Ct. R. Annot. 267) before presenting the proposed journal entry to the district court, Gulick filed a motion to set aside.
The district court held a hearing on May 8, 2012, to consider Gulick's motion to set aside the journal entry. Two days later, the district court filed another journal entry dismissing the case. On May 11, 2012, Gulick filed an amended notice of appeal, and on May 18, 2012, the Department filed a notice of cross-appeal.
Analysis
On appeal, Gulick contends the district court erred in granting the Department's motion to dismiss for insufficient service of process. Whether personal jurisdiction exists is a question of law over which our review is unlimited. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). Likewise, to the extent that statutory interpretation may be required, our review is also unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
A civil action is commenced at the time a petition is filed if service of process is obtained within 90 days after the petition is filed. Otherwise, the action is commenced at the time of service of process. K.S.A. 60–203(a). Because Gulick was suing the Department—an agency of state government—K.S.A. 60–304(d)(5) required that he serve the attorney general or an assistant attorney general. Moreover, Gulick admits that he never served the Kansas Attorney General or an assistant attorney general. Thus, Gulick has failed to obtain proper service as required by K.S.A. 60–203(a).
Because this is a negligence action, there is a 2–year statute of limitations on Gulick's cause of action. K.S.A. 60–513(a). As such, he had until May 14, 2011, to commence his personal injury action against the Department. Although Gulick filed his petition on May 10, 2011, he has yet to obtain proper service. Hence, the statute of limitations has expired and the 90–day relation back provision under K.S.A. 60–203(a) does not help Gulick's cause.
Nevertheless, Gulick argues that the district court erred in considering the Department's motion to dismiss because it was filed after the deadline for dispositive motions set forth in the case management order. But Gulick failed to raise this issue before the district court despite having several opportunities to do so. In particular, we note that Gulick failed to argue that the motion to dismiss was untimely in response to the motion to dismiss, at the hearing on the motion to dismiss, in the motion to set aside journal entry, or at the hearing on the motion to set aside journal entry.
If Gulick had raised the issue of timeliness prior to this appeal, the district court could have used its discretion to determine whether to modify the case management order. See K.S.A. 60–216; Canaday v. Midway Denton U.S.D. No. 433, 42 Kan.App.2d 866, 871–72, 218 P.3d 446 (2009). Likewise, we note that the district court considered and granted the motion to dismiss without raising any concerns about its timeliness. Under the circumstances presented, we find that Gulick's failure to raise this issue below precludes this court from considering it on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). Moreover, even if we were to decide this issue on the merits, the district court did not abuse its discretion by ruling on the Department's motion to dismiss.
Gulick also argues that the Department had to file its defense of lack of personal jurisdiction by motion instead of by responsive pleading. But K.S.A. 60–212(b) states that no defense is waived because it is joined with any other defense or objection in a responsive pleading or motion. Furthermore, a defense of lack of personal jurisdiction is only waived when it is not timely asserted as a defense. See K.S.A. 60–212(h); Haley v. Hershberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 127 P.3d 319 (2006). Here, the Department properly asserted the defense in its responsive pleading.
Gulick next argues that K.S.A. 60–203(b) saves his claim from being time barred because he had 90 days from the time the court found his service to be improper to obtain valid service. K.S.A. 60–203(b) states:
“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to an irregularity in form or procedure or a 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.”
In Grimmett v. Burke, 21 Kan.App.2d 638, 647–48, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), the court determined that the following factors must exist before K.S.A. 60–203(b) can apply:
“(1) The original service must have ‘appeared’ to be valid and the returns by the sheriff's 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 Grimmett factors were adopted by the Kansas Supreme Court in Pieren–Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 101–02, 106 P.3d 492 (2005). The Pieren–Abbott court held that K.S.A. 60–203(b) was inapplicable when a plaintiff was “clearly informed that the [defendant] was contesting service and could easily have served the [defendant] with summonses before the 90–day period in K.S.A. 60–203(a) had expired.” 279 Kan. at 102. This court is duty bound to follow Pieren–Abbott. See Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012) (stating the Kansas Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position).
After the Department raised the defense of insufficient service of process in its answer, Gulick had 77 days to correct the defective service and have the service of process relate back to the date of filing. K.S.A. 60–203. Had Gulick done so, his cause of action would not be barred by the statute of limitations. In addition, even if Gulick was correct and he should have gotten 90 days from the date of the district court's decision finding insufficient service—which would be contrary to Kansas Supreme Court precedent—he has yet to properly serve the Department. Thus, he still would have failed to cure the defect within 90 days of the district court's decision.
Gulick also argues that K.S.A. 60–304(d)(5) is not the exclusive way the Department could be served. He contends that serving the Department's general counsel was proper under K.S.A. 60–205(b)(1), which states that if a party is represented by an attorney, service must be made on the attorney unless the court orders service on the party. But that statute applies to service of pleadings and other papers. It does not apply to service of process to commence an action. See K.S.A. 60–304; Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1272–73, 136 P.3d 457 (2006).
Finally, Gulick argues service was effective under K.S.A. 60–203(c), which states that “[t]he filing of an entry of appearance has the same effect as service.” Gulick argues his case is distinguishable from Kuhn, 47 Kan.App.2d 241, because there was no evidence in Kuhn that the defendant's attorney ever entered an appearance. Nevertheless, both the defendants in this case and in Kuhn filed an answer asserting that service of process was defective. 47 Kan.App.2d at 242; It appears Gulick is arguing that answering is the same as entering an appearance, as there is no entry of appearance indicated in the record on appeal or the appearance docket.
Regardless, the Department raised insufficient service in its answer. A party's attorney's knowledge that service was attempted does not show that the party knew the action was filed, and it does not show substantial compliance with the service statute. Grimmett v. Burke, 21 Kan.App.2d 638, 643, 906 P.2d 156 (1995). Moreover, Kansas law clearly establishes that the defense of insufficient service is preserved when raised by an answer or a motion.
“ ‘K.S.A. 60–212 has abolished the old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him. The defense of lack of jurisdiction of the person is waived only when it is not raised by motion or in the answer itself. This is clearly stated by the express terms of K.S.A. 60–212(h). The defense is then waived not because of defendant's voluntary appearance, but because of the failure to assert the defense within the time prescribed by the rules.’ [Citation omitted.]” City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 406, 517 P.2d 117 (1973).
See also Haley, 207 Kan. at 465 (stating a motion for extension of time to answer is not a waiver to the lack of jurisdiction due to insufficiency of process; this jurisdictional defense is waived only when it is not raised by motion or in the answer as expressly stated in K.S.A. 60–212[h] ).
We, therefore, conclude that the district court did not err in dismissing this action. Furthermore, because we affirm the district court's dismissal, we need not address the merits of the Department's cross-appeal.
Affirmed.