Kuhn v. Schmidt (Corrected: March 30, 2012)

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No. 106,257

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARIE E. KUHN, individually, and ROBERT L. KUHN,
individually, and as husband and wife,
Appellants,

v.

HAROLD D. SCHMIDT,
Appellee.

SYLLABUS BY THE COURT

1.
Pursuant to K.S.A. 60-203(a), a civil action is commenced with the filing of the
petition if the plaintiff obtains service of process on the defendant, or makes the first
publication for service by publication, within 90 days thereafter, unless the 90-day period
is extended for 30 days upon a showing of good cause. Otherwise, the date the action is
commenced is the date that the defendant is served.

2.
Pursuant to K.S.A. 60-204, service of process may be accomplished through
substantial compliance with the statutory requirements.

3.
Kansas courts have interpreted substantial compliance with our statutes for service
of process to mean compliance with respect to the essential matters necessary to assure
every reasonable objective of the statute. But mere knowledge of pending litigation is not
a substitute for valid service of process.

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4.
Under the facts presented, leaving the summons and petition with the receptionist
at the defendant's assisted living residential community does not constitute substantial
compliance with the statutory requirements for personal or residential service of process.
Delivering the summons and petition to an unauthorized third party who promises to pass
them to the defendant does not constitute proper service of process even if the defendant
is subsequently notified of the suit.

5.
In certain circumstances K.S.A. 60-203(b) saves a claim from being barred by the
applicable statute of limitations by permitting the belated proper service of process to
relate back to the date the suit was filed. But the salutary effect of K.S.A. 60-203(b) does
not apply when the plaintiff has notice of a defect in service of process in time to correct
the defect before the 90-day period in K.S.A. 60-203(a) expires, but fails to do so.

Appeal from Harvey District Court, RICHARD B. WALKER, judge. Opinion filed March 30, 2012.
Affirmed.

Morgan B. Koon, of Koon Law Firm, LLC, of Wichita, and Stephen W. Johnson, of Cornerstone
Law, L.L.C., of Newton, for appellants.

Paul Hasty, Jr., of Hasty & Associates, LLC, of Overland Park, for appellee.

Before STANDRIDGE, P.J., MCANANY and ATCHESON, JJ.

MCANANY, J.: On June 2, 2006, Harold Schmidt and Marie Kuhn were involved
in an automobile accident. On May 30, 2008, Kuhn filed suit against Schmidt, alleging
injuries and damages resulting from Schmidt's negligence in the accident. Kuhn
requested that the sheriff serve process on Schmidt at his apartment at an assisted living
residential community where he resided. On June 2, 2008, Deputy Sheriff Scott Perkins
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went to Schmidt's apartment and knocked on the door. When there was no response,
Perkins left the petition and summons with the receptionist at the front desk of the
residential community. The receptionist said she would see that Schmidt received the
papers. She apparently set the papers aside for Schmidt in an open box at the residential
community, in an area separate from Schmidt's apartment. The following day Perkins
filed his return on service of summons, stating that he had served Schmidt on June 2,
2008, by residential service.

Schmidt filed his answer on June 20, 2008, asserting that service of process was
defective. The parties proceeded with discovery, but Kuhn made no inquiry into the
nature of the claimed defect in service.

On April 27, 2009, Schmidt moved to dismiss for lack of personal jurisdiction due
to insufficient service of process. The district court granted Schmidt's motion on May 18,
2009. Kuhn moved to set aside the order of dismissal. After a hearing on Kuhn's motion,
the district court set aside the dismissal on June 29, 2009.

On August 17, 2009, Kuhn filed an alias summons and, on August 19, 2009,
obtained personal service on Schmidt. Schmidt then filed his answer asserting that the
action was barred by the 2-year statute of limitations.

Schmidt then moved for summary judgment based on his statute of limitations
defense. He argued that his original answer put Kuhn on notice of the lack of personal
jurisdiction over him and she took no action to correct the service defect within 90 days
of the original date of service. Thus, the later service obtained on August 19, 2009, did
not relate back to the date suit was filed. As a result, the suit was deemed commenced on
August 19, 2009, the date service was perfected, which was long after the 2-year statute
of limitation had expired.
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The district court granted Schmidt's summary judgment motion. In doing so, the
court found that the savings provisions of K.S.A. 60-203(b) did not apply because Kuhn
was on notice of the defect in service when Schmidt filed his first answer but did nothing
about it. When Schmidt filed his answer on June 20, 2008, Kuhn had 69 days left to
perfect valid service on Schmidt, but Kuhn made no timely effort to do so. Kuhn appeals.

On appeal Kuhn contends that the original June 2, 2008, service on Schmidt was
sufficient because it substantially complied with Kansas statutes on service of process. In
the alternative, Kuhn argues that K.S.A. 60-203(b) applies to save Kuhn's negligence
action because she served Schmidt with an alias summons within 90 days of the district
court adjudicating Kuhn's service to be invalid.

We need not recount the standards for summary judgment and for appellate review
because they are well known to the parties and are found in innumerable cases, including
Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (quoting Warner v. Stover,
283 Kan. 453, 455-56, 153 P.3d 1245 [2007]).

A civil action is commenced with the filing of the petition if the plaintiff obtains
service of process on the defendant, or makes the first publication for service by
publication, within 90 days thereafter, unless the 90-day period is extended for 30 days
upon a showing of good cause. Otherwise, the date the action is commenced is the date
that the defendant is served. K.S.A. 60-203(a). Pursuant to K.S.A. 60-513, Kuhn had 2
years from the date of the accident, or until June 2, 2008, to commence her negligence
action against Schmidt. Kuhn filed suit on May 30, 2008, so she had 90 days thereafter
within which to perfect service in order for service to relate back to the date suit was
filed.

Here, Kuhn attempted to serve Schmidt through personal or residential service.
K.S.A. 60-303(d)(1) provides that personal service "shall be made by delivering or
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offering to deliver a copy of the process and accompanying documents to the person to be
served." It is clear that there was no personal service. K.S.A. 60-303(d)(1) states that
residential service shall be made "by leaving a copy of the process and petition or other
document to be served, at the dwelling house or usual place of abode of the person to be
served with someone of suitable age and discretion residing therein." (Emphasis added.)
It is equally clear that residential service was not accomplished. The receptionist who
accepted the papers did not reside there.

But K.S.A. 60-204 provides that service of process may still be achieved through
substantial compliance:

"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 status or property were subject to be affected."

Kansas courts have interpreted substantial compliance to mean "compliance with respect
to the essential matters necessary to assure every reasonable objective of the statute." But
"Kansas case law is clear that mere knowledge of pending litigation is not a substitute for
valid service of process." Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 1147, 260 P.3d
1218 (2011).

In Fisher, service of process was held defective when the plaintiff attempted to
serve the defendant by means of certified mail at his business address. 45 Kan. App. 2d at
1147. The papers were received and signed for by an unknown person. The defendant
filed an answer that set forth the affirmative defense of insufficient service of process. In
finding that the plaintiff's method of service did not substantially comply with the Kansas
statutes, the Fisher panel stated that the plaintiff "did not satisfy the most important
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objective of service of process, i.e., actual service upon" the defendant or his authorized
agent. 45 Kan. App. 2d at 1147.

The Fisher court cited Haley v. Hershberger, 207 Kan. 459, 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, 874, 127 P.3d 319 (2006); see Fisher, 45 Kan. App. 2d
at 1141-43. In Haley, the Kansas Supreme Court held that "[l]eaving a copy of a petition
and summons with the secretary of the defendant is not substantial compliance with any
of the provisions mentioned for personal service. The secretary was not an authorized
agent to receive service of process. [Citation omitted.]" 207 Kan. at 463.

In keeping with Fisher and Haley, Perkins leaving the summons and petition with
the receptionist was not substantial compliance with the statutory requirements for proper
service of process. Delivering the summons and petition to an unauthorized third party
who promises to pass them to the defendant does not constitute proper service of process
even if the defendant is subsequently notified of the suit.

But Kuhn argues that K.S.A. 60-203(b) saves her claim from being barred by the
statute of limitations. The statute provides:

"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 subjection (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 court found that Kuhn could not claim that she was unaware that Schmidt
was contesting service and thus K.S.A. 60-203(b) was inapplicable.
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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) applies:

"(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." (Emphasis added.)

The Grimmett factors were adopted by our Supreme Court in Pieren-Abbott v. Kansas
Dept. of Revenue, 279 Kan. 83, 101-02, 106 P.3d 492 (2005). The court in Pieren-Abbott
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.
We are bound to follow Pieren-Abbott. See Buchanan v. Overley, 39 Kan. App. 2d 171,
175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008).

Here, Schmidt's June 20, 2008, answer raised the defense of insufficient service of
process. Kuhn had 69 days thereafter within which to correct the defective service and
have service of process on Schmidt relate back to the pre-statute-of-limitations filing of
the petition. Kuhn failed to inquire into why Schmidt contested service of process before
the 90-day relation-back period expired. Proper service of process was not accomplished
until later. Accordingly, K.S.A. 60-203(b) was not available to Kuhn, and the service of
process on Schmidt did not relate back to the filing of her petition. The district court
correctly granted Schmidt's summary judgment motion.

Affirmed.
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* * *

ATCHESON, J., concurring: I concur in the decision affirming the judgment against
Plaintiff Marie Kuhn on statute of limitations grounds, but I do so reluctantly. The
judgment reflects the triumph of a true technicality that thwarted resolution of the legal
dispute between Kuhn and Defendant Harold Schmidt on its merits. The result is all the
more vexing because it rests on judicial gloss the appellate courts have placed on a statute
enacted to prevent exactly what has happened in this case. This court manufactured the
gloss in Grimmett v. Burke, 21 Kan. App. 2d 638, 647-48, 906 P.2d 156 (1995), rev.
denied 259 Kan. 927 (1996). But the Kansas Supreme Court shined it up in Pieren-Abbott
v. Kansas Dept. of Revenue, 279 Kan. 83, 101-02, 106 P.3d 492 (2005). So I am simply
left to point out the misguided statutory interpretation requiring me to join in a result in
which inequity rivals waywardness.

I.

Judge McAnany has well set out the relevant facts and the governing legal
authority. And I agree with his conclusion—Kuhn gets no day in court for a decision on
the underlying legal claim she has against Schmidt. We know very little about the motor
vehicle collision, and maybe that is as it should be. Those circumstances really have
nothing to do with how the procedural progression of the case now prevents a
determination of the validity of her claim. It might be that a jury would find against Kuhn
or award her far less than she thinks would be fair compensation. But we will never know
because the courts have read requirements into K.S.A. 60-203(b) that have no foundation
in the statutory language and undercut its very purpose. The legislature enacted K.S.A.
60-203(b) to avoid the dismissal of civil cases because of technical defects in the service
of process when a defendant has received actual notice of the action and has responded,
thereby kicking the usual litigation machinery into gear. If K.S.A. 60-203(b) were applied
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as written, Kuhn should have been given the chance to serve Schmidt correctly and to
continue her action against him.

Shortly before the 2-year statute of limitations was to run on Kuhn's personal
injury claim, her lawyer had the Harvey County Sheriff's Department serve a summons
and petition on Schmidt. The deputy didn't find Schmidt at his apartment and left the
paperwork with a receptionist or manager in the complex office. The deputy filled out the
return on the summons as if he had gotten proper service on Schmidt. He didn't.

But Schmidt must have promptly received the summons and petition anyway—a
lawyer filed an answer on his behalf a little more than 2 weeks later. The answer, among
other things, challenged the legal sufficiency of the service. Kuhn did nothing further at
that point to re-serve Schmidt. Some 10 months later, Schmidt moved to dismiss the suit
for lack of personal jurisdiction based on insufficient service. Kuhn then served Schmidt
properly with a summons and petition, the same documents he had actually received at
the beginning of the case presumably from the apartment complex employee rather than
from the sheriff's deputy. Schmidt then filed another answer and asserted the statute of
limitations had expired before he had been served correctly. The district court agreed and
dismissed the suit.

The majority outlines the procedural gymnastics in the case, but I summarize
them. After Kuhn filed her petition with the clerk of the district court, she had 90 days to
serve it, along with a summons, on Schmidt. K.S.A. 60-203(a)(1). When Schmidt filed
his first answer challenging service, Kuhn had roughly a 70-day window in which she
could have correctly served the paperwork and still been within the statute of limitations.
That's because under K.S.A. 60-203(a)(1), a suit is commenced for limitations purposes
when the petition is filed if the defendant is properly served with the paperwork within 90
days. If not, the suit is commenced when the defendant is actually served properly.
K.S.A. 60-203(a)(2).
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Here, the return of service from the deputy stated service was proper, and Schmidt
obviously had received a copy of the suit. But, in fact, the deputy failed to serve Schmidt
in a legally satisfactory way when he left the papers with the apartment complex
employee. See K.S.A. 60-304(a). So the suit was not commenced until Schmidt was
correctly served 10 months later after the statute of limitations had run even though he
got a lawyer and responded to the suit a couple of weeks after it was filed. In a common-
sense ledger, the service error would be tallied in the column for technicalities that make
no real difference. Schmidt suffered no actual prejudice in defending against Kuhn's suit
because of the error, and he forthrightly claims none.

Kuhn argued either of two statutes saved her case. First, she said the deputy's
service on the apartment complex employee amounted to "substantial compliance" with
the rules and, therefore, was legally sufficient under K.S.A. 60-204. But the law is clear
that when an individual has been sued, the petition and summons must be given to that
person, left at his or her "dwelling house" with someone of suitable age residing there, or
delivered to the residence by certified mail or comparable means producing a signed
return receipt. K.S.A. 60-303(c), (d); K.S.A. 60-304(a). The courts have long held that
service on other persons, such as a defendant's office secretary, does not effect individual
service or amount to substantial compliance under K.S.A. 60-204. See Haley v.
Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971). I do not here quarrel with that
rule and agree without reservation that Kuhn should not be permitted to rescue her action
under K.S.A. 60-204.

Second, Kuhn sought to rely on K.S.A. 60-203(b). That statute provides:

"If service of process . . . 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."
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By its plain language, K.S.A. 60-203(b) would apply here. The initial service of the
petition and summons was adjudicated invalid because it was not given to Schmidt or left
with someone else residing at his apartment—that's an "irregularity" in procedure or a
"defect" in making service. The statutory language would allow Kuhn 90 days after the
court's adjudication of insufficiency to properly serve Schmidt. The curative second
service would then relate back to the date of the filing of the suit for statute of limitations
purposes. And the litigation would continue on course and essentially without
interruption for an ultimate determination on the merits of Kuhn's claim.

II.

The legislature intended K.S.A. 60-203(b) as a safety valve to avoid dismissal of
suits for technical flaws in service resulting in statute of limitations bars, even though
defendants had received actual notice and had responded. Hughes v. Martin, 240 Kan.
370, 375-76, 729 P.2d 1200 (1986). In Hughes, the Kansas Supreme Court recognized the
legislature enacted K.S.A. 60-203(b) to prevent that harsh result and pointed to Dunn v.
City of Emporia, 7 Kan. App. 2d 445, 643 P.2d 1137, rev. denied 231 Kan. 799 (1982), as
an example of the sort of inequitable outcome to be avoided. Hughes, 240 Kan. at 376.
The court also cited Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980), and Briscoe v.
Getto, 204 Kan. 254, 462 P.2d 127 (1969). The procedural history of Dunn is instructive
because of significant similarities to what happened here.

Dunn had a personal injury claim against the City of Emporia. The petition and
summons were personally served on the Emporia city attorney, and the return so stated.
The City timely filed an answer asserting an affirmative defense of improper service of
process. At that point, Dunn had about 60 days of the 90-day service period remaining in
which to re-serve the City. But she made no effort to do so. A city may not be served
through its city attorney; the petition and summons must be served on either the mayor or
the city clerk. K.S.A. 60-304(d)(3). The suit, therefore, had not been "commenced"
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within the meaning of K.S.A. 60-203(a), and the statute of limitations had not been
tolled. After the statute had run, the suit was dismissed for lack of prosecution. Dunn
promptly refiled relying on K.S.A. 60-518, permitting an action "commenced within due
time" to be refiled within 6 months after being dismissed other than on the merits. The
district court then dismissed the refiled action on statute of limitations grounds because
the original suit had never been commenced, since the city attorney had been served
rather than the mayor or city clerk.

According to Hughes, the legislature adopted K.S.A. 60-203(b) to head off that
sort of result by allowing proper service within 90 days after an adjudication that the
original service was defective. 240 Kan. at 375-76. Kuhn's circumstance certainly seems
to come within the intended purpose of K.S.A. 60-203(b). While Schmidt was not
correctly served and so alleged in his answer, he did receive actual notice of the suit and
timely answered, just as the City of Emporia did in Dunn. Neither Dunn nor Kuhn
attempted to re-serve in response to the affirmative defense of insufficient service raised
in the answer. Based on the plain language of K.S.A. 60-203(b) and the legislative intent
to prevent outcomes like that in Dunn, Kuhn should have been allowed 90 days to re-
serve Schmidt after the district court adjudicated the service legally inadequate. In short,
Kuhn should not have suffered the same fate as Dunn. But she did. The reason lies in the
judicial distortion of the statutory language and disregard of the legislative purpose begun
in Grimmett, 21 Kan. App. 2d at 647-48, and hardened into controlling precedent in
Pieren-Abbott, 279 Kan. at 101-02.

III.

To rein in a "liberal approach" to K.S.A. 60-203(b), the Grimmett panel engrafted
three factors on to the statutory language: (1) "the original service must have
appeared . . . valid," and the return of service must indicate valid service; (2) plaintiff
must have held a good-faith belief service was valid and detrimentally rely on that belief;
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and (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. In addition, the panel required
the defendant receive "actual notice of having been sued." 21 Kan. App. 2d at 647. That
requirement is subsumed in the statutory language of K.S.A. 60-203(b), since the
opportunity for reservice arises only after the original service has been adjudicated
defective. Generally, it takes two to adjudicate. So the defendant necessarily would have
entered the case to force the adjudication of the service and, thus, must have received
notice of the suit in some fashion.

The three so-called Grimmett factors, however, appear to have been pulled out of
thin air. The first factor requires the appearance of valid service, whatever that means,
and a return containing a statement showing valid service. Nothing in the statutory
language requires the service or the return appear valid on their face. Rather, service
merely must "purport" to have been made. Had the legislature intended to confine K.S.A.
60-203(b) to circumstances in which the return recited a valid form of service when, in
fact, service was accomplished through an improper means, it would have said so. For
example, the legislature could have phrased the statute this way: "If service of process . . .
purports to have been made validly, as stated on the return, but is later adjudicated to
have been invalid . . . ." But the legislature didn't. In addition, the return in Dunn, 7 Kan.
App. 2d at 446, did not purport to show legally proper service. It reflected service on the
city attorney—a plainly improper means of service. The same was true in Briscoe, 204
Kan. at 255-56, and Bray, 228 Kan. at 482-83. In each of those cases, the return showed
service on an individual by delivering process to a secretary at the individual's place of
business. Based on the first Grimmett factor, the plaintiffs in those cases would have been
thrown out of court notwithstanding the adoption of K.S.A. 60-203(b). Yet, those cases
illustrate outcomes the legislature intended to prevent in passing K.S.A. 60-203(b). In
short, the first Grimmett factor undercuts what the legislature meant to accomplish, and it
does so by embellishing the statutory language.
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The second factor largely replicates the error of the first in that it requires the
plaintiff to believe in good faith that service had been validly made. I suppose the panel
actually means the plaintiff's lawyer. But I fail to see just how, for example, a lawyer
might fairly believe that service of process on a city can be accomplished by delivering
the papers to the city attorney when the governing statute plainly identifies the mayor and
the city clerk as the only proper recipients. The legislature intended to protect plaintiffs,
as litigants, from just that sort of technical misstep by their lawyers in serving process
when those missteps can be readily corrected and do not materially impair defendants'
ability to respond on the merits. See Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013
(1978) ("A litigant should not be unnecessarily penalized for the simple neglect of his
agent or counsel."). Here, again, the Grimmett panel reads into K.S.A. 60-203(b) a
good-faith requirement cannot be found in the statutory language. See Unruh v. Purina
Mills, 289 Kan. 1185, 1201, 221 P.3d 1130 (2009) (The court declines to require that a
defendant act in "bad faith" to support an award of attorney fees to a plaintiff under the
Kansas Consumer Protection Act because the legislature included no such language in the
applicable statute.). As the Unruh court stated: "If the legislature intended a bad-faith
requirement, it could have included such language." 289 Kan. at 1201. Maybe a good-
faith requirement in K.S.A. 60-203(b) would have been superior legislation. Maybe not.
But it clearly wasn't what the legislature enacted. And it shouldn't be what the courts
apply.

The final factor requires that the plaintiff not realize the defendant disputes the
legal sufficiency of service until it's too late to take any remedial action, i.e., re-serving
the defendant within the time period during which service will relate back to the filing
date of the petition under K.S.A. 60-203(a). Seldom will that be true, and the requirement
severely constricts the remedial impact of K.S.A. 60-203(b). Defects in the form of the
process or its service, along with any resulting lack of personal jurisdiction over the
defendant, must be asserted as defenses at the outset of the litigation or they are lost.
K.S.A. 60-212(b), (h). A defendant may identify them in the answer or raise them in a
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motion filed before answering. K.S.A. 60-212(b). Either way, they are put in play during
the earliest stages of a case. But they may not be adjudicated until much later, especially
if they simply have been identified in the answer and are not briefed until the summary
judgment phase.

Again, nothing in the language of K.S.A. 60-203(b) curtails the protection against
dismissal for faulty service when a defendant promptly contests service. But the gloss of
that factor effectively requires a plaintiff to re-serve a defendant in the abundance of
caution if a defense of lack of personal jurisdiction, insufficiency of process, or
insufficiency of service of process has been asserted in the answer. To do otherwise
would tempt fate by risking a loss on that defense late in the case, after the limitations
period had run, and having no recourse to K.S.A. 60-203(b) to serve the defendant at that
point. With enactment of K.S.A. 60-203(b), a technical defect in service of process was
supposed to become a fixable mistake during the course of litigation. The third Grimmett
factor negates that objective and reduces the statutory right of a plaintiff to re-serve the
defendant after an adjudication of defective service to empty words of little practical use.

By encouraging needless effort and expense in re-serving defendants, obviously
already in and actively litigating cases, when they assert defenses based on defective
service, the third factor runs counter to K.S.A. 60-102 recognizing that the Kansas Code
of Civil Procedure should be construed "to secure the just, speedy and inexpensive
determination of every action." And nothing would prevent a defendant from asserting
any successive service of process to be legally deficient in a vaguely absurdist game in
which a plaintiff must either serve again or gamble service has been accomplished
correctly.


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IV.

Applied as written, K.S.A. 60-203(b) avoids those machinations. Plaintiff serves
process. Defendant responds and says service wasn't done right. The district court
decides. If it rules for plaintiff, that's the end of the matter. If it rules for the defendant,
plaintiff has 90 days to make proper service while the case continues. The process is
sensibly and orderly; it aims to get at the merits of the legal dispute without undue
wrangling over procedural technicalities. Basically, if a defendant has appeared and is
litigating the case, he or she has suffered no real prejudice because of a technical defect
in service. And the plaintiff should be given the opportunity to correct the error without
suffering a substantial penalty. The Grimmett panel, in fact, suggested the purpose of
K.S.A. 60-203(b) lies in giving a plaintiff "a second chance at service" if the original
service has been declared invalid but nonetheless afforded defendant notice of the suit.
Grimmett, 21 Kan. App. 2d at 647. But the factors the panel imposes on the statutory
language bury that purpose.

I am not the first to question the appropriateness of the Grimmett factors. Estate of
Norris v. Hastings, 36 Kan. App. 2d 479, 484-87, 141 P.3d 511, rev. denied 282 Kan. 788
(2006) (Knudson, J., dissenting). Recently, a panel of this court suggested without much
elaboration the Grimmett factors distort the plain meaning of K.S.A. 60-203(b). Fisher v.
DeCarvalho, 45 Kan. App. 2d 1133, 1153, 260 P.3d 1218 (2011); 45 Kan. App. 2d at
1155 (Pierron, J., concurring). In his dissent in Estate of Norris, Judge Knudson
forcefully outlined the basic unfairness of welding those factors to the statutory language
of K.S.A. 60-203 as immutable modifications. He found they often would require an
outcome that "turns . . . K.S.A. 60-203(b) on its head." 36 Kan. App. 2d at 487. I would
go further and suggest the factors have no place in construing or applying K.S.A. 60-
203(b).

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The Grimmett panel rationalized its judicial overhaul of K.S.A. 60-203(b) with an
odd horrible: plaintiffs might get away with serving defendants with process by leaving
the papers at bars, churches, or Arrowhead Stadium in gross disregard of any legal
requirements. 21 Kan. App. 2d at 647. But it seems unlikely service in that manner would
convey even actual notice of an action to a defendant. The defendant, having no notice of
the action, would not respond, contest service, or trigger an adjudication of service under
K.S.A. 60-203(b). By the same token, however, the plaintiff would be in no position to
take a default against the defendant in the absence of legally sufficient service. See
Porter v. Wells Fargo Bank, 45 Kan. App. 2d 931, 932, 935-36, 257 P.3d 788 (2011)
(default judgment improperly entered when plaintiff never obtained valid service of
process on defendant). So a plaintiff, having served in the manner feared in Grimmett,
would have a suit on file but no defendant on the hook. And the statute of limitations
clock would continue to tick because the action had not been commenced. On closer
examination, the horrible doesn't seem all that horrible—certainly not fearsome enough
to warrant jiggering K.S.A. 60-203(b).

That judicial tailoring runs counter to a pair of settled legal principles. First, of
course, courts are not to stitch additional requirements onto statutes or snip away parts
they view as poorly designed. Robinson v. City of Wichita Retirement Bd. of Trustees,
291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court "will not speculate on legislative
intent and will not read the [statutory] provision to add something not readily found in
it."); Unruh, 289 Kan. at 1201 (rejecting an argument that "asks the court to read into the
statute language that is not present"). The Kansas Supreme Court encapsulated the rule of
interpretation this way: "A statute should not be read to add that which is not contained
in the language of the statute or to read out what, as a matter of ordinary language, is
included in the statute." Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d
494 (2007).

18

Second, the law favors determining legal disputes on their merits. See McDaniel v.
Southwestern Bell, Inc., 45 Kan. App. 2d 805, 809, 256 P.3d 872 (2011), rev. denied 293
Kan. ___ (2012) ("It is the long-standing policy of our courts that the law favors the
determination of disputed claims on the merits."). The proposition has often been stated
in the context of lifting a default judgment to allow a defendant to litigate the merits of
the claim filed against him or her. Jenkins, 223 Kan. at 299 ("[A] court should resolve
any doubt in favor of the motion [to set aside the default] so that cases may be decided on
their merits."). In short, "[t]he law favors trial of causes upon the merits and looks with
disfavor upon default judgments." Sharp v. Sharp, 196 Kan. 38, 41-42, 409 P.2d 1019
(1966). The irony is almost perverse. Properly served defendants, having done nothing to
respond and facing defaults, may (at least sometimes) be rescued because the underlying
legal disputes should be heard. That, after all, is what the judicial system strives to
achieve. But plaintiffs who fail to obtain technically pristine service of process may be
gamed out of their opportunity for judgments on the merits thanks to the Grimmett
factors.

The Kansas Supreme Court picked up on the Grimmett factors and endorsed their
use in construing K.S.A. 60-203(b) in an unusual context: measuring the legal
sufficiency of the service of a driver's appeal to the district court from an administrative
suspension of driving privileges. Pieren-Abbott, 279 Kan. 83, Syl. ¶¶ 2, 8. Nothing in
Pieren-Abbott suggests the court intended to confine the factors to that particular
circumstance. But neither did the court make any in-depth analysis of Grimmett or the
soundness of its factors in traditional civil litigation. Nonetheless, a fair reading of
Pieren-Abbott requires that the Grimmett factors be applied here. See Estate of Norris, 36
Kan. App. 2d at 483-84 (acknowledging Pieren-Abbott as controlling authority in
personal injury action). And those factors, rather than the plain language of K.S.A. 60-
203(b), mandate judgment against Kuhn.