Fisher v. DeCarvalho (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,644

MELANIE A. FISHER,
Appellant,

v.

ALEX F. DECARVALHO, M.D.,
Appellee.


SYLLABUS BY THE COURT

1.
Pursuant to the return receipt delivery method of service of process, an adult
individual defendant who is not disabled may be served by certified mail at his or her
business address only if all of the following conditions are met: (1) the plaintiff first
attempts to serve the individual by return receipt delivery at the individual's dwelling
house or usual place of abode; (2) the plaintiff files a return on service indicating that
delivery at the individual's dwelling house or usual place of abode was refused or
unclaimed; and (3) the certified mail to the business address must be sent by restricted
delivery, meaning that the mail is to be delivered to the addressee only.

2.
A plaintiff's substantial compliance with any statutory method of serving process
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 or proceeding
was pending in a specified court in which his or her person, status, or property was
subject to being affected. K.S.A. 60-204.

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3.
Substantial compliance with a statute means compliance in respect to the essential
matters necessary to assure every reasonable objective of the statute.

4.
By requiring that service by return receipt delivery to an individual at a business
address be completed by certified mail, restricted delivery, i.e., endorsed "deliver to
addressee only," the legislature has signaled that actual delivery to the individual is an
essential matter that is necessary to assure the reasonable objective of making the party
served aware that an action or proceeding is pending in a specified court in which his or
her person, status, or property is subject to being affected.

5.
Under K.S.A. 60-303(e), the voluntary appearance by a party is the equivalent of
service of process on that party as of the date of the appearance. But an appearance to
request an extension of time in which to answer or respond to the petition is not a
voluntary appearance that will equate to service of process.

6.
If service of process purports to have been made within 90 days of the filing of the
petition but that service of process 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 commenced at the time of the filing of the petition if
valid service is obtained within 90 days after the adjudication of invalidity of the original
service, unless that time is extended an additional 30 days for good cause shown. K.S.A.
60-203(b).
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7.
When a plaintiff sends a petition and summons to the defendant's business address
by certified mail, receives back a signed return receipt, files a return of service with the
court, and proceeds with the prosecution of the case on its merits, service of process is
purported to have been made within the meaning of K.S.A. 60-203(b). Thereafter, if
service of process is adjudicated to be defective for any reason, the provisions of K.S.A.
60-203(b) may be utilized to save the cause of action.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 1133, 260 P.3d 1218 (2011).
Appeal from Ellis District Court; THOMAS L. TOEPFER, judge. Opinion filed December 13, 2013.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded with directions.

David R. Morantz, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, argued
the cause, and Lynn R. Johnson, of the same firm, was with him on the briefs for appellant.

Trevin E. Wray, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Janet M.
Simpson, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Melanie A. Fisher attempted to commence a medical malpractice
action against Alex F. DeCarvalho, M.D., by mailing the summons and petition via
unrestricted certified mail, sent to the doctor's business address. The doctor actually
received the petition and filed an answer that asserted several affirmative defenses,
including insufficiency of process, lack of personal jurisdiction, and a statute of
limitations bar. After participating in the discovery process for a time, the doctor filed a
motion to dismiss, alleging an absence of personal jurisdiction because Fisher's attempted
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certified mailing did not comply with the requirements of K.S.A. 60-304(a) to effect a
valid service of process. The district court dismissed the lawsuit with prejudice, finding
that Fisher had failed to substantially comply with the statutory requirements for service
of process by return receipt mail delivery, that the defendant's actual notice of the lawsuit
did not confer personal jurisdiction on the district court absent a proper service of
process, and that Fisher was not entitled to the additional time to effect service after the
adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at
service did not appear to be valid, as required by Grimmett v. Burke, 21 Kan. App. 2d
638, Syl. ¶ 4, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996). The Court of
Appeals affirmed the district court's dismissal in Fisher v. DeCarvalho, 45 Kan. App. 2d
1133, 260 P.3d 1218 (2011), and we granted review.

We agree with the results reached below on the issues of substantial compliance
and actual notice, but we find that Fisher should have been afforded the opportunity,
within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of
process after the district court's adjudication of invalidity. We reverse and remand with
directions for the district court to afford the plaintiff that opportunity.

FACTUAL AND PROCEDURAL OVERVIEW

On October 1, 2007, Dr. DeCarvalho performed an arthroscopic procedure on
Fisher's right knee. Unsatisfied with the result, Fisher filed a medical malpractice lawsuit
against the doctor 2 years later, on October 1, 2009. Fisher elected to obtain service of
process on the defendant by mail, rather than personal service, ostensibly to avoid
disrupting the doctor's medical practice. Accordingly, on November 30, 2009, after
requesting and receiving a summons from the district court clerk's office, Fisher's counsel
mailed the summons and petition to the doctor's medical office by unrestricted certified
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mail, i.e., the mail did not direct that delivery was to be made only to the addressee, Dr.
DeCarvalho.

On December 14, 2009, Fisher filed a return of service with the district court that
included a return receipt on the certified mail reflecting that an individual named Phyllis
Bieker had signed for the envelope on December 2, 2009. The return of service did not
indicate Bieker's relationship to the defendant or explain why she was authorized to
accept service of process on his behalf.

Nevertheless, the defendant does not deny that he had actual notice of the lawsuit,
and he filed an answer to the petition on January 4, 2010, after requesting and receiving a
10-day clerk's extension. In his answer, the defendant asserted several affirmative
defenses, including insufficiency of process, lack of personal jurisdiction, and a violation
of the statute of limitations. On March 1, 2010, the defendant served Fisher with
interrogatories and a request for production of documents. Two days later, the defendant
responded to plaintiff's discovery requests.

The following month, on April 26, 2010, the defendant filed a motion to dismiss
for lack of personal jurisdiction, arguing that Fisher had failed to effect proper service of
process prior to the expiration of the statute of limitations. Specifically, the defendant
claimed that the initial attempt at service by certified, unrestricted mail at his place of
business was invalid because it did not comply with the requirements for service by
return receipt delivery to an individual set forth in K.S.A. 60-304(a).

In response, Fisher argued that the provisions of K.S.A. 60-204 validated the
service of process because she had substantially complied with the requirements of
K.S.A. 60-304(a). Additionally, she asserted that the defendant had actual knowledge of
the lawsuit, as evidenced by his timely answer to the petition and his active participation
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in the discovery process, which established that the purpose of the service of process had
been fulfilled. In the alternative, Fisher contended that even if the district court
adjudicated her initial service of process to be invalid, she was entitled to an additional 90
(or 120) days after the invalidity adjudication to effect valid service, as provided in
K.S.A. 60-203(b).

On May 26, 2010, the district court found in favor of the defendant and dismissed
the lawsuit with prejudice. En route to that disposition, the district court rejected Fisher's
assertion that she had substantially complied with the statutory requirements for mail
service and, therefore, the court held that she was not entitled to the validation benefit of
K.S.A. 60-204. Further, the district court opined that the defendant's actual notice of the
lawsuit was not enough to confer personal jurisdiction upon the court in the absence of a
proper statutory service of process. Finally, the district court found that Fisher was not
entitled to the additional time to effect service after the court's invalidity adjudication, as
specifically provided in K.S.A. 60-203(b), because the initial service of process in this
case did not meet Grimmett's requirement of facial validity. See Grimmett, 21 Kan. App.
2d at 647-48.

On appeal to the Court of Appeals, Fisher focused on three arguments. First, she
continued to argue that her service upon the defendant substantially complied with the
statutory method for effecting service of process by return receipt delivery, so that the
initial service was statutorily defined as valid under K.S.A. 60-204. Second, for the first
time on appeal, Fisher argued that pursuant to K.S.A. 60-303(e), the defendant
voluntarily acknowledged service by appearing in the action through his pleadings and
discovery. For her third argument, Fisher asserted that even if the initial service was
invalid, the plain language of K.S.A. 60-203(b) provided her an additional time—at least
90 days after the court determination of invalidity—to cure the defect(s) through another,
valid service of process.
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The Court of Appeals affirmed the district court's dismissal with prejudice. First,
comparing Fisher's attempted mail service against the specific requirements clearly set
forth in K.S.A. 60-304(a), the panel opined that plaintiff's efforts fell well short of this
court's definition of "substantial compliance" in Myers v. Board of Jackson County
Comm'rs, 280 Kan. 869, 874, 127 P.3d 319 (2006), so that the attempted service of
process could not be deemed valid under K.S.A. 60-204. Fisher, 45 Kan. App. 2d at
1147.

Second, the Court of Appeals exercised review over Fisher's argument regarding a
voluntary entry of appearance under K.S.A. 60-303(e), notwithstanding her raising that
issue for the first time on appeal. But the panel relied on Haley v. Hershberger, 207 Kan.
459, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers,
280 Kan. at 875, for the proposition that the filing of a motion for extension of time to
answer a petition does not waive an insufficiency of service of process defense.
Therefore, because the defendant's other participation in the lawsuit occurred after the
action was barred by the statute of limitations, those appearances did not cure the faulty
service of process. Fisher, 45 Kan. App. 2d at 1148-49.

Finally, the Court of Appeals rejected Fisher's argument that she was entitled to an
additional 90 days to effect valid service of process under K.S.A. 60-203(b). 45 Kan.
App. 2d at 1152-53. Although the panel expressed concern over Grimmett's "judicially
created" requirements for the application of K.S.A. 60-203(b), the panel nevertheless
concluded that the statute's plain language made it inapplicable in Fisher's case. 45 Kan.
App. 2d at 1153-55.

This court granted Fisher's petition for review under K.S.A. 20-3018(b), obtaining
jurisdiction under K.S.A. 60-2101(b).
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SUBSTANTIAL COMPLIANCE WITH MAIL SERVICE OF PROCESS

Fisher acknowledges that her service of process may have been technically flawed
in relation to the requirements of K.S.A. 60-304(a). But she claims that her compliance
with the certified mail method of serving process was substantial enough to invoke the
saving provision of K.S.A. 60-204, which states, in relevant part:

"In any method of serving process, substantial compliance therewith 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 or proceeding was pending in a specified
court in which his or her person, status or property were subject to being affected."

Here, the defendant, being "the party served," does not dispute that he "was made
aware that an action or proceeding was pending in a specified court in which his . . .
person, status or property were subject to being affected." K.S.A. 60-204. Moreover, the
parties do not contest the facts applicable to the manner in which Fisher served the
process. Consequently, our task is to review whether the actions taken by Fisher
constitute "substantial compliance" within the meaning of K.S.A. 60-204.

Standard of Review

Defining and applying the statutory concept of substantial compliance will
necessarily involve statutory interpretation, over which we exercise de novo review. See
Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).

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Analysis

Although some of the applicable statutes have been amended since Fisher
attempted to commence her lawsuit, the parties argue and we apply the statutes in effect
at the time of the attempted service of process. Then, K.S.A. 60-303 described the
methods of service of process that could be used within this state. One of the acceptable
methods was "service by return receipt delivery," which included "service effected by
certified mail . . . evidenced by a written or electronic receipt showing to whom
delivered, date of delivery, address where delivered, and person or entity effecting
delivery." K.S.A. 60-303(c).

In addition, K.S.A. 60-304, entitled "Service of process, on whom made,"
provided further directions. With respect to individuals, other than minors or disabled
persons, service could be made "by serving the individual or by serving an agent
authorized by appointment or by law to receive service of process." K.S.A. 60-304(a).
Moreover, K.S.A. 60-304(a) provided specific instructions for the use of service by return
receipt delivery for an individual party, to-wit:

"Service by return receipt delivery shall be addressed to an individual at the individual's
dwelling house or usual place of abode and to an authorized agent at the agent's usual or
designated address. If service by return receipt delivery to the individual's dwelling house
or usual place of abode is refused or unclaimed, the sheriff, party or party's attorney
seeking service may complete service by certified mail, restricted delivery, by serving the
individual at a business address after filing a return on service stating the return receipt
delivery to the individual at such individual's dwelling house or usual place of abode has
been refused or unclaimed and a business address is known for such individual."

K.S.A. 60-103 defines restricted mail as including the endorsement on its face to "deliver
to addressee only." In other words, a summons and petition addressed to Dr. DeCarvalho
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and sent certified mail, restricted delivery, would state on its face that it should be
delivered only to Dr. DeCarvalho.

To reiterate and emphasize the point, if Fisher's actions substantially complied
with the foregoing statutory requirements for that method of service, then K.S.A. 60-204
declares that she effected "valid service of process." No further inquiry would be
necessary.

The service of process that Fisher attempts to validate in this appeal was sent to
the defendant's medical clinic by unrestricted certified mail. The Court of Appeals
described the statutorily prescribed steps that should be followed to effect service by
return receipt delivery at an individual's business address:

"[A]n individual may only be served at a business address by certified mail if the
following conditions have been satisfied: (1) the plaintiff first attempts to serve the
individual by return receipt delivery at the individual's dwelling house or usual place of
abode; (2) the plaintiff files a return on service indicating that delivery at the individual's
dwelling house or usual place of abode was refused or unclaimed; and (3) the certified
mail is then sent to the business address via restricted delivery." Fisher, 45 Kan. App. 2d
at 1140.

The panel then agreed with the district court's assessment that Fisher had failed to
satisfy any of those statutory prerequisites for business address service. She did not make
an initial attempt to serve the defendant at his dwelling house or usual place of abode; she
did not file a return on service indicating that delivery at the doctor's dwelling house or
usual place of abode was refused or unclaimed; and she did not make certified mail
service to the doctor's business address by restricted delivery, i.e., she did not restrict
delivery to the addressee only. 45 Kan. App. 2d at 1140-41. In addition, the panel noted
that Fisher had failed to ascertain whether the person who signed the return receipt—
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Phyllis Bieker—was authorized to accept service on behalf of the defendant. 45 Kan.
App. 2d at 1141.

Noting that the term "substantial compliance" is not statutorily defined, the panel
looked at the meaning this court had given the term in Myers, 280 Kan. at 874. Myers
addressed substantial compliance in the context of assessing the validity of a tort
claimant's notice to a municipality under K.S.A. 12-105b. A review of prior cases led the
Myers court to adopt the following description of substantial compliance: "'"'compliance
in respect to the essential matters necessary to assure every reasonable objective of the
statute.'"'" 280 Kan. at 874 (quoting Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387
[2000]). The panel in this case opined that "due to the similarity in the purpose of the two
statutes, it is reasonable to conclude that the 'substantial compliance' language in K.S.A.
60-204 is to be defined in the same manner as in K.S.A. 2004 Supp. 12-105b(d)." Fisher,
45 Kan. App. 2d at 1142. The panel noted that the analogy had been utilized by a prior
Court of Appeals panel in Taylor ex rel. Gibbens v. Medicalodges, Inc., No. 102,539,
2010 WL 3324408 (Kan. App. 2010) (unpublished opinion), rev. denied 292 Kan. 969
(2011). 45 Kan. App. 2d at 1145.

Applying the Myers standard, the panel reiterated all of the ways in which Fisher
had failed to follow the statutory directive for mail service at a business address, but it
principally relied on the fact that "service was not actually made upon DeCarvalho or his
authorized agent," which the panel declared to be "the most important objective of any
method of service of process." 45 Kan. App. 2d at 1142-43. Accordingly, the panel
concluded that, by failing to assure that service was actually made on the defendant or his
authorized agent, Fisher failed to substantially comply with the method of service set
forth in K.S.A. 60-304(a). Consequently, without substantial compliance, the attempted
service of process could not be deemed valid under K.S.A. 60-204. Fisher, 45 Kan. App.
2d at 1147.
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We agree with the Court of Appeals' approach of viewing K.S.A. 60-204's
validation provision through the lens of the Myers definition of substantial compliance,
i.e., "'"'compliance in respect to the essential matters necessary to assure every reasonable
objective of the statute.'"'" 280 Kan. at 874. In doing so, we are not unmindful that some
prior cases from this court have held that service of process upon a secretary or office
manager at a place of business was not sufficient compliance to invoke the validation
provision of K.S.A. 60-204. See Haley, 207 Kan. at 463, Thompson-Kilgariff General
Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 467-68, 479 P.2d 900 (1971), and
Briscoe v. Getto, 204 Kan. 254, 257, 462 P.2d 127 (1969). The underlying rationale in
those cases was that K.S.A. 60-204 was not intended to create new methods of serving
process. See, e.g., Briscoe, 204 Kan. at 257 (new method of service cannot be originated
by K.S.A. 60-204).

But unlike the statutory scheme applicable to Briscoe and its progeny, the version
of K.S.A. 60-304(a) applicable here specifically permitted Fisher to make service by
return receipt delivery to the defendant's business address, so long as she fulfilled certain
conditions. Consequently, no new method of service is being originated here. Rather, the
conditions Fisher failed to meet on an existing method of service are being reviewed to
determine whether they were necessary to assure the reasonable objectives of that
statutory method of service, i.e., whether Fisher failed to substantially comply with the
existing method of service.

In applying the Myers' test for substantial compliance, the panel opined that the
most important objective of any service of process method is to actually serve the
defendant or the defendant's authorized agent. Fisher, 45 Kan. App. 2d at 1147. We
might quibble with that statement's overbreadth. We read the statutory language as
suggesting that the legislature believed that the paramount objective of any method of
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service of process is that "the party served was made aware that an action or proceeding
was pending in a specified court in which his or her person, status or property were
subject to being affected." K.S.A. 60-204. In some circumstances, e.g., notice by
newspaper publication, actual service upon the defendant or authorized agent may not be
an essential matter necessary to accomplish the reasonable objective of proper
notification. Nevertheless, we do agree with the panel that the legislature intended that,
where service is made on an individual by return receipt delivery to a business address,
actual service on the defendant or his or her authorized agent is an essential matter that is
necessary to assure the objective that the individual receive appropriate notice. The
special requirement that the certified mail be sent by restricted delivery to a business
address can mean nothing else.

In sum, we agree with the panel and the district court on the question of whether
Fisher substantially complied with the method of service by return receipt delivery to an
individual at a business address. Fisher simply failed to meet those essential conditions
that were necessary to assure that the defendant would be made aware that an action or
proceeding was pending in a specified court in which his property was subject to being
affected. The defendant's fortuitous acquisition of that awareness does not affect our
calculus. K.S.A. 60-204's validation must emanate from the serving party's actions. Here,
Fisher's actions were inadequate to be substantially compliant with K.S.A. 60-304(a) and,
in turn, the service of process was not valid under K.S.A. 60-204.

VOLUNTARY APPEARANCE

One of Fisher's complaints is that Dr. DeCarvalho engaged in procedural
gamesmanship by appearing to fully participate in the lawsuit until such time as his
challenge to the defective service of process would result in a dismissal with prejudice
because of the statute of limitations. As noted, on appeal, Fisher attempts to use K.S.A.
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60-303(e) to keep the doctor in the game to answer on the merits. That subsection of the
statute dealing with the methods of service of process states: "An acknowledgment of
service on the summons is equivalent to service. The voluntary appearance by a
defendant is equivalent to service on the date of appearance." K.S.A. 60-303(e). Fisher
contends that the doctor voluntarily appeared when he obtained an extension of time to
answer, filed an answer to the petition, and then actively participated in the discovery
process. Despite the seductive logic of that argument, it is not supported by our caselaw.

Standard of Review

An interpretation and application of K.S.A. 60-303(e) presents us with a question
of law over which we have unlimited review. See Jeanes, 296 Kan. at 873.

Analysis

We first briefly address the preservation of this issue. The Court of Appeals
acknowledged that this issue was being raised for the first time on appeal, which would
normally preclude its consideration. But citing to In re Care & Treatment of Miller, 289
Kan. 218, 224-25, 210 P.3d 625 (2009), the panel invoked the exception to the general
rule for a newly asserted theory that involves only a question of law arising on proved or
admitted facts and that is finally determinative of the case. Fisher, 45 Kan. App. 2d at
1148. The defendant did not seek review of that holding. Accordingly, we will likewise
consider the argument.

Before discussing K.S.A. 60-303(e), we pause to review the relationship between
service of process and the applicable statute of limitations on Fisher's medical
malpractice action. Under K.S.A. 60-513(a)(7), the statute of limitations was 2 years,
making her petition timely filed on the 2-year anniversary of her alleged injury. But a
lawsuit is not properly commenced until service of process is obtained and, except for an
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extension for good cause shown, that service must occur within 90 days of the filing of
the petition for the commencement date to be deemed the filing date of the petition;
otherwise, the action is deemed commenced when service of process is completed.
K.S.A. 60-203(a). In this case, Fisher had to complete service of process by December
30, 2009, in order for her lawsuit to be deemed to be commenced on October 1, 2009,
i.e., to avoid being barred by the 2-year statute of limitations.

The defendant obtained a 10-day extension of time to file a responsive pleading on
December 23, 2009; he filed an answer to the petition on January 4, 2010; and he
thereafter participated in discovery until filing his motion to dismiss on April 26, 2010. If
the doctor's extension request was a "voluntary appearance by a defendant" within the
meaning of K.S.A. 60-303(e), then that appearance was the equivalent of service being
effected on or before December 23, 2009, which would be prior to the December 30,
2009, service of process deadline to relate back the commencement of the action to the
filing date. In other words, the defendant's statute of limitations challenge would fail. If
Fisher must rely on the defendant's January 4, 2010, answer or other subsequent actions
in the proceeding to establish the date of the defendant's voluntary appearance, and
correspondingly to establish the date of service under K.S.A. 60-303(e), then the
commencement of the action would not relate back to the filing date and Fisher's lawsuit
would not comply with the statute of limitations.

The Court of Appeals relied on the 40-year-old decision in Haley to find that the
defendant's extension request was not a voluntary appearance within the meaning of
K.S.A. 60-303(e). Fisher, 45 Kan. App. 2d at 1149. Haley held that "[a] motion for
extension of time to answer, . . . may not be regarded as a waiver of lack of jurisdiction of
the person of defendant because of insufficiency of process, or insufficiency of service of
process." 207 Kan. 459, Syl. ¶ 4. Haley opined that K.S.A. 60-212 abolished the "old
distinction between general and special appearances" and now provides that a defendant
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only waives the defense of lack of personal jurisdiction by failing to assert the defense in
a 60-212 motion or in the answer. 207 Kan. at 465. In other words, a defendant retains
the right to challenge personal jurisdiction up to the time that the defendant files his or
her answer to the petition.

Fisher argues that Haley was decided prior to the enactment of K.S.A. 60-303(e)
and we should employ the presumption that a legislative revision of existing law
presupposes that the legislature intended to change the law as it existed prior to the
amendment. See Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan.
446, 464, 228 P.3d 403 (2010). That argument evaporates when one discovers that K.S.A.
60-303(e) merely effected a relocation of the provision that was previously part of K.S.A.
60-304(h). See L. 1990, ch. 202, secs. 4 and 5. When Haley was decided, K.S.A. 60-
304(h) provided: "An acknowledgment of service on the summons, or the voluntary
general appearance of a defendant, is equivalent to service." See L. 1970, ch. 235, sec 1.
In other words, the Haley court reached its decision in spite of a savings provision that
equated a party's voluntary general appearance with service of process. Thus, we decline
to declare that the legislature intended to change the law or to overrule Haley by enacting
K.S.A. 60-303(e).

We do acknowledge that Haley's abolition of the distinction between a special
appearance and a general appearance is rendered somewhat illusory by its holding that a
defendant does not waive a personal jurisdiction challenge until after the answer is filed.
If a defendant files an answer to a petition without having been served a summons, one
who employs common meanings for common words would have to view that action as a
"voluntary appearance" by a party. Yet, if filing an answer is truly a voluntary appearance
(and there are no longer any special appearances), K.S.A. 60-303(e) would equate that
action with a service of process, thus curing the defense of insufficiency of service of
process that Haley says is not waived until after the answer is filed. In other words, the
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act of raising the defense negates the defense, even though the defendant has not waived
the defense. But we have a canon of construction that directs us to construe statutes to
avoid unreasonable or absurd results, based upon a presumption that the legislature does
not intend to enact meaningless legislation. See Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). Moreover, the Haley
holding has been good law for decades. See Pieren-Abbott v. Kansas Dept. of Revenue,
279 Kan. 83, 100, 106 P.3d 492 (2005) (citing to Haley). Accordingly, we overlook any
logical disconnect and follow the precedent that requesting an extension of time to file an
answer is not a waiver of defendant's challenge to personal jurisdiction based upon an
insufficiency of the service of process, notwithstanding the provisions of K.S.A. 60-
303(e).

ADDITIONAL TIME TO EFFECT SERVICE PURSUANT TO K.S.A. 60-203(b)

Finally, Fisher argues that, even if the district court correctly invalidated her initial
service of process, the plain language of K.S.A. 60-203(b) allowed her an additional 90
days after the invalidity adjudication in which to obtain valid service of process. We
agree.

Standard of Review

Once again, this issue involves statutory interpretation, which is subject to
unlimited review by this court. See Jeanes, 296 Kan. at 873.

Analysis

The provisions of K.S.A. 60-203(b) applicable here state:

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"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 provision was originally proposed by the Kansas Judicial Council in response
to the holdings in such cases as Haley and Bray v. Bayles, 228 Kan. 481, 484-85, 618
P.2d 807 (1980), both of which found defective service of process where the petition and
summons were served upon business secretaries or receptionists. See February 9, 1983,
Minutes of the House Committee on Judiciary. This court would subsequently observe
that the 1983 version of K.S.A. 60-203(b) was enacted for the express purpose of
correcting the injustice that existed in cases where the service was defective, the
defendant knew of the action through the faulty process but did not make any substantive
objection to the defective service until after the time for service had passed, and the
statute of limitations had run. See Hughes v. Martin, 240 Kan. 370, 374, 729 P.2d 1200
(1986).

A decade later, a panel of the Court of Appeals opined in Grimmett v. Burke, 21
Kan. App. 2d 638, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), that the
intended curative effects of K.S.A. 60-203(b) should be narrower than the plain language
would indicate. The panel believed that the statute could be construed in two ways:

"[O]ne is extremely liberal and the other appears to be a commonsense approach. A very
liberal construction gives the plaintiff a second chance at service. It would establish that a
plaintiff always gets a second chance under 60-203(b) when his or her original service
has been determined invalid. This would be true no matter how inept or how lacking in
good faith the original service may have been. In the extreme, a liberal approach of this
nature would simply ignore the first service and extend the process far beyond applicable
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time frames. This approach would allow a party to simply leave a summons for John Doe
at a bar, at a church, at Arrowhead Stadium, at the courthouse, or any other place and still
insist that by doing so the party had 'purported' to serve a defendant. Such a liberal
construction is ludicrous; we do not believe it was intended and will not adopt that
approach. The purpose of K.S.A. 60-203(b) is to give a second chance at service to a
party whose original service was declared invalid despite the fact that it gave the
defendant notice of suit." 21 Kan. App. 2d at 647.

In order to avoid the results it perceived were ludicrous, the panel declared that
before K.S.A. 60-203(b) can apply, the plaintiff must show that the defendant was given
actual notice of having been sued. Then, the panel divined a list of factors that it said
should exist, namely:

"(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." Grimmett, 21 Kan. App. 2d
at 647-48.

The Grimmett panel then declared: "[B]y limiting the phrase 'purports to have
been made' to those situations alluded to above, we correct the problem 60-203(b) was
passed to correct." (Emphasis added.) Grimmett, 21 Kan. App. 2d at 648. That
assessment would prove to be woefully inaccurate. As the panel in this case observed, it
was "unable to find a single published decision where the provisions of K.S.A. 60-203(b)
were applied successfully to save a case from dismissal," after Grimmett judicially
created its requirements. Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 1153, 260 P.3d
1218 (2011). That observation included the Grimmett case itself, where the panel found
that the plaintiff could not pass its newly minted test for curing defective service.
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Grimmett, 21 Kan. App. 2d at 649. Instead of correcting the problem K.S.A. 60-203(b)
was passed to correct, Grimmett exacerbated the problem.

Inexplicably, then, the Supreme Court adopted the Grimmett holdings without
question. Pieren-Abbott, 279 Kan. 83, Syl. ¶ 8. That absence of critical analysis is
curious, at best, given that Grimmett appeared to sidestep our canons of statutory
construction.

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing
Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. Northern Natural Gas Co., 296 Kan. at 918. When a statute is
plain and unambiguous, an appellate court does not speculate as to the legislative intent
behind it and will not read something into the statute that is not readily found in it. In re
Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Perhaps most
importantly, "'the court cannot delete vital provisions or supply vital omissions in a
statute.'" Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161
(1993) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]). In other
words, no matter how ludicrous an appellate court may find a legislative enactment to be,
the court is not free to completely rewrite the statute to make the law conform to what the
court believes it should be.

To reiterate, the statute provides a plaintiff with an additional time to obtain
service of process on a defendant under the following circumstances: "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." K.S.A. 60-203(b). Grimmett's condition precedent that the plaintiff must show
21



that the defendant was given actual notice of having been sued does not appear anywhere
in K.S.A. 60-203(b). Likewise, the statute does not require an appearance of validity; it
does not require the plaintiff to possess a good-faith belief that the service was valid; and
it does not purport to apply only where the plaintiff had no reason to believe the
defendant was contesting service until after the statute of limitations had run and had no
opportunity to correct the defective service. In short, the plain language of the statute
does not support Grimmett's holdings.

Apparently, the Grimmett panel believed that it was invoking the general rule that
courts should construe statutes to avoid unreasonable results and should presume that the
legislature does not intend to enact useless or meaningless (or ludicrous) legislation. See
Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1269, 221 P.3d 588
(2009). But, as Judge Atcheson pointed out in his separate opinion in Kuhn v. Schmidt, 47
Kan. App. 2d 241, 255, 277 P.3d 1141 (2012) (Atcheson, J., concurring), the Grimmett
panel's perceived "the sky will fall" absurdity was illusory. Should a plaintiff attempt to
serve John Doe process by leaving papers at a bar, at a church, at Arrowhead Stadium, at
a courthouse, or at any other place where the defendant is unlikely to receive it, then the
defendant would not know about the lawsuit, the defendant would not challenge the
sufficiency of the service, and the district court would not adjudicate the service to be
invalid so as to trigger the applicability of K.S.A. 60-203(b). Kuhn, 47 Kan. App. 2d at
255. Similarly, the plaintiff would be unable to take default judgment against the
defendant because the plaintiff would be unable to establish that service had been legally
effected. 47 Kan. App. 2d at 255. In sum, as Judge Atcheson aptly noted: "On closer
examination, the horrible doesn't seem all that horrible—certainly not fearsome enough
to warrant jiggering K.S.A. 60-203(b)." 47 Kan. App. 2d at 255.

Rather than saving K.S.A. 60-203(b) from absurdity, the Grimmett factors actually
tend to render that savings provision meaningless. If a plaintiff can jump through the
22



Grimmett hoops, especially the requirement that the original service and return appear to
be facially valid, then the plaintiff has most likely met the substantial compliance test of
K.S.A. 60-204. In that event, the service is statutorily deemed to be valid, negating the
requisite condition in K.S.A. 60-203(b) that the service be adjudicated invalid. In other
words, if a plaintiff can meet the Grimmett factors to apply K.S.A. 60-203(b), the
plaintiff probably does not need to use it.

Furthermore, as Judge Atcheson noted, K.S.A. 60-203(b) was enacted to change
the result reached in such cases as Briscoe and Bray. Kuhn, 47 Kan. App. 2d at 251-52.
But in those cases, the returns did not indicate valid service on their face, so that
construing the statute to require such facial validity would not have changed the result in
those cases and, consequently, that construction does not accomplish what the legislature
obviously wanted to do. Throwing up additional roadblocks to the accomplishment of
legislative intent runs afoul of our duty to give effect to the will of the legislature. See
Kansas-Bostwick Irrigation District v. Mizer, 176 Kan. 354, 365, 270 P.2d 261 (1954). In
fact, the legislature has specifically told us that "[t]he provisions of [the code of civil
procedure] shall be liberally construed and administered to secure the just, speedy and
inexpensive determination of every action or proceeding." K.S.A. 60-102. Moreover, the
law prefers that cases be decided on their merits rather than on technical compliance with
procedural rules. See Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495,
781 P.2d 1077 (1989) (In determining whether to set aside a default judgment, a court
should resolve any doubt in favor of the motion so that the cases may be decided on their
merits.). In that same context, courts are also encouraged to remember that litigants
should not be unnecessarily penalized for the simple neglect of their attorney. Jenkins v.
Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978).

The panel in this case recognized that "Kansas cases applying the Grimmett factors
have adopted an unnecessarily restrictive view of K.S.A. 60-203(b) that is not supported
23



by the plain language of the statute." Fisher, 45 Kan. App. 2d at 1153. We agree and
hereby disapprove of the Grimmett factors and the accompanying restrictive view of
K.S.A. 60-203(b). The statute means what it says.

We begin our analysis of the plain language of K.S.A. 60-203(b) with the phrase
"purports to have been made" and then factor in the phrases "any irregularity in form or
procedure" and "any defect in making service." As the Court of Appeals correctly
observed, "[t]he provisions of K.S.A. 60-203(b) are triggered only when the original
service of process 'purports to have been made' but is later declared invalid." 45 Kan.
App. 2d at 1153. The Court of Appeals then dutifully looked at the Hughes court's
definition of the verb "purport," which was "'to have the appearance of being.'" Hughes,
240 Kan. at 375. But then the panel applied the Hughes definition as if it meant "to have
the appearance of being valid." That led the panel to return to the Grimmett rationale,
which we reject herein, that a service of process cannot purport to have been made unless
it appears to be facially valid.

Our disconnect with the panel's reasoning appears to derive from the meaning it
places on the word "being" in the Hughes definition of purport. As we view it, a service
of process can have the appearance of being, i.e., can appear to exist, even though it was
not created in accordance with the statutory directive, i.e., does not appear to be valid.
Perhaps it would have been better if Hughes had included all of the dictionary definition
of "purport," which includes the following language: "To profess or claim, esp. falsely;
to seem to be ."
Black's Law Dictionary 1356 (9th ed. 2009). That definitional example directly
contradicts the panel's suggestion that a document cannot "purport" to be something
where a facial defect would refute its validity.

24



Armed with a definition that more clearly captures the common meaning of
"purport," we have no hesitation in finding that "service of process . . . purports to have
been made" in this case. A petition and summons were sent by return receipt delivery to
the defendant at his business address, and a return receipt was signed and mailed back to
the plaintiff. Service of process had the appearance of being, i.e., of existing. Then,
Fisher filed a return of service and proceeded to prosecute the case, including serving
interrogatories upon the defendant. Obviously, the plaintiff was professing or claiming to
have effected service of process upon the defendant so as to allow the matter to proceed
on its merits. In short, the Court of Appeals erred in holding that service of process was
not purported to have been made in this case.

Moving on to the remaining statutory language, we note that the panel opined that
the legislature did not set the standard so low that K.S.A. 60-203(b) could "be applied to
save a cause of action any time service of process is found to be defective for any
reason." Fisher, 45 Kan. App. 2d at 1154. The panel then speaks to service that has been
"adjudicated to have been invalid due to any irregularity in form or procedure." 45 Kan.
App. 2d at 1154. But that ignores the plain and unambiguous statutory language that
permits a cure for "any defect in making service." Our function is not to decide how low
the bar should be set, but rather we simply construe what the legislature has said about
setting the bar. In Hughes, this court performed that construction:

"K.S.A. 60-203(b) is also declared to be applicable to any situation where the original
service was invalid due to 'any irregularity' in form or procedure or 'any defect' in making
service. The use of the word any makes crystal clear the legislative intent that the statute
is to be liberally applied in cases involving any irregularity or any defect in the service of
process." 240 Kan. at 375-76.

We, too, find the language of K.S.A. 60-203(b) to be crystal clear. That language
does, indeed, provide that its provisions can be applied to save a cause of action any time
25



service of process is purported to have been made and is thereafter found to be defective
for any reason. Any suggestion to the contrary is hereby disapproved.

Consequently, we find that the district court erred in dismissing this case with
prejudice without permitting the plaintiff the additional time set forth in K.S.A. 60-203(b)
in which to obtain valid service of process. We remand with directions to allow the
plaintiff an opportunity to utilize the savings provisions of K.S.A. 60-203(b).

Reversed and remanded.