Opinion
No. 108,376.
2013-02-8
Vickie YOUNG, Appellant, v. TURNER UNIFIED SCHOOL DISTRICT NO. 202, Appellee.
Appeal from Wyandotte District Court; William P. Mahoney, Judge. Albert F. Kuhl, of Law Offices of Albert F. Kuhl, of Lenexa, and Brooke R. Amos, of Law Offices of Brooke Amos, of Lenexa, for appellant. Gregory P. Goheen, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.
Appeal from Wyandotte District Court; William P. Mahoney, Judge.
Albert F. Kuhl, of Law Offices of Albert F. Kuhl, of Lenexa, and Brooke R. Amos, of Law Offices of Brooke Amos, of Lenexa, for appellant. Gregory P. Goheen, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Plaintiff Vickie Young appeals the dismissal of her wrongful termination suit against Defendant Turner U.S.D. No. 202 and contends the Wyandotte County District Court erred in holding she failed to timely serve process, thus allowing the statute of limitations to expire. We find no error and affirm.
The school district terminated Young, a paraprofessional, in 2009. She filed a suit against the school district on November 16, 2011, ostensibly 1 day before the statute of limitations expired. Young and the school district haggled over when her claim accrued and when the 2–year limitations period ran. But that dispute is beside the point, and we assume the expiration date to be as Young suggests. The underlying facts of Young's termination are similarly immaterial to the dispositive civil procedure issue.
At Young's request, a Wyandotte County Sheriff's deputy served her petition and a summons on the school district. The deputy did so by leaving the paperwork with Joyce Pack, an employee in the district's administrative offices. Young did not designate by name or title the specific person to be served and simply directed the sheriff's agent to effect service on the school district. The deputy delivered the petition and summons on December 8, 2011, and duly filed a return of service. On December 28, 2011, the school district filed an answer and a motion for judgment on the pleadings. The answer listed a slew of affirmative defenses—some of which were not really affirmative defenses, but that, too, is beside the point. Among them was this: “Plaintiff's Petition must be dismissed due to insufficiency of process and insufficiency of service of process thereby depriving this Court of personal jurisdiction over Defendant.”
In April 2012, the school district filed what it titled as a motion to dismiss, arguing the statute of limitations had run because Young had not obtained legally proper service on the school district. The motion and memorandum really sought summary judgment because materials outside the pleadings were submitted and considered. See K.S.A. 60–212(c). Young responded. The district court granted that motion, finding the statute of limitations had run, and entered a judgment on the merits in favor of the school district. Young has timely appealed.
Under K.S.A. 60–203(a)(l), a suit is commenced for limitations purposes when the petition is filed if the defendant is properly served with process within 90 days. If not, the suit is commenced when the defendant is actually served properly. K.S.A. 60–203(a)(2). As a governmental entity, the school district may be served by delivering process to “the clerk or secretary or, if not to be found, to any officer, director or manager.” K.S.A. 60–304(d)(4). The clerk or secretary refers to someone with executive authority for the governmental entity, rather than a clerical employee, as the balance of the section suggests with its reference to officers, directors, and managers. The school district submitted an affidavit from Pack establishing that she neither had that level of authority nor held one of those positions, although the submission was strangely silent about what she actually did as a district employee. Young does not argue that Pack falls in one of the enumerated categories in K.S.A. 60–304(d)(4), and the record evidence shows she does not.
Rather, Young turns to K.S.A. 60–204 for relief. In relevant part, K.S.A. 60–204 provides that “substantial compliance” with the methods of service outlined in article 3, including K.S.A. 60–304, “shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action ... was pending....” Young says service on Pack was good enough, since the school district obviously received timely notice of her suit and duly answered. Unfortunately for Young, the Kansas courts have not construed K.S.A. 60–204 as providing a no-harm, no-foul rule when it comes to serving process on an unauthorized person. See Haley v. Hershberger, 207 Kan. 459, 463–64, 485 P.2d 1321 (1971) (specifically rejecting a substantial compliance argument under K.S.A. 60–304 and finding service of process on secretary at business office insufficient as to business owner sued personally); Fisher v. DeCarvalho, 45 Kan.App.2d 1133, 1147, 260 P.3d 1218 (2011), rev. granted May 5, 2012. While Haley and Fisher concerned service of process on individuals named as defendants, the substantial compliance requirement of K.S.A. 60–204 also has been applied to corporate and governmental entities. See Hopkins v. State, 237 Kan. 601, 604–05, 702 P.2d 311 (1985); Porter v. Wells Fargo Bank, 45 Kan.App.2d 931, Syl. ¶ 4, 257 P.3d 788 (2011); Dunn v. City of Emporia, 7 Kan.App.2d 445, 450, 643 P.2d 1137,rev. denied 231 Kan. 799 (1982).
Based on that authority, particularly Hopkins, and the Kansas appellate courts' essentially unwavering interpretation of “substantial compliance” under K.S.A. 60–204, we reject Young's argument. The courts have consistently held that serving process on someone other than a statutorily designated recipient does not constitute substantial compliance.
Requiring service on the statutorily designated representatives of governmental entities promotes orderly progression of civil litigation by insuring that a responsible, ranking official receives process and by avoiding collateral disputes over whether service on some other employee imparted actual notice. The rule, for example, prevents a plaintiff from asserting good service on a municipality by handing process to a member of a road crew filling potholes—someone who might or might not appreciate the significance of service and might or might not send the paperwork up the chain of authority. Moreover, K.S.A. 60–304(d)(4) affords a plaintiff ample targets for proper service of process. It is not so limited as to thwart reasonable efforts at service, as by limiting valid service to the senior member of the school board during the last 5 minutes of a regularly called meeting in a month containing the letter “m.”
Young argues that the fault here belongs to the deputy making service on the school district. In some sense that may be true, but the law provides no reprieve for a party when his or her chosen agent fails in making proper service. Here, Young decided to serve the school district through the Sheriff's Department, although other means of service were available. Young also could have selected some other agent to carry out personal service on the school district.
After the school district asserted the deficiency of service in its answer, Young could have looked into that defense by determining who actually received the summons and petition and whether that person met the statutory requirements of K.S.A. 60–304. In turn, Young had time to re-serve the school district within the 90–day window in K.S.A. 60–203, meaning a second service of process would have related back to the date the petition was filed had it been carried out properly. In turn, the statute of limitations would not have expired assuming Young has correctly identified when her claim accrued.
In sum, Young's suit fails on a procedural bar rather than on its merits. While that arguably is a technicality of sorts, it is the kind of rule that reasonably advances the effective operation of a high-volume adjudicatory process by requiring a defined means of giving fair notice to a party being sued without imposing so onerous an obligation on the party suing that compliance itself becomes a substantial impediment to success. The district court correctly applied the law in entering judgment against Young.
Affirmed.