Baeza v. Kemal

1

NOT DESIGNATED FOR PUBLICATION

No. 113,057

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERTO BAEZA,
Appellant,

v.

ALI KEMAL,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed November 13,
2015. Affirmed.

Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

David P. Calvert, of David P. Calvert, P.A., of Wichita, for appellee.

Before MALONE, C.J., GREEN and POWELL, JJ.

Per Curiam: Roberto Baeza appeals the trial court's dismissal of his civil action
against Kemal Ali with prejudice. Although this case is docketed as Roberto Baeza v. Ali
Kemal, the appellee's name is actually Kemal Ali. On appeal, Baeza argues that this court
must reverse the trial court's dismissal of his action because the trial court incorrectly
determined that he failed to make a showing of good cause for a 30-day extension of time
to obtain service of process under K.S.A. 2014 Supp. 60-203(a)(1). In the alternative,
Baeza argues that the trial court incorrectly determined that the unique circumstances
doctrine did not excuse his untimely service. As discussed below, however, neither of
2

Baeza's arguments have merit. Accordingly, we affirm the trial court's dismissal of
Baeza's action with prejudice.

On May 17, 2012, Baeza, Ali, and Matthew McGuire were involved in a 3-car
accident. McGuire had come to a complete stop while attempting to merge into another
lane. Baeza, who was directly behind McGuire, failed to stop and drove into the back of
McGuire's car. Ali, who was behind Baeza, was also unable to stop and drove into the
back of Baeza's car. The front of Baeza's car was under the back of McGuire's car. Ali's
car nearly came to a complete stop before barely bumping Baeza's car. Both McGuire and
Ali told the investigating police officer that Baeza crashed into McGuire's car before Ali
bumped into Baeza's car. Based on the positions of the cars, McGuire's statement to the
police, and Ali's statement to the police, the investigating officer issued a ticket to Baeza
for inattentive driving.

For an unknown reason, the investigating officer made two accident reports
documenting the single accident. The first accident report, numbered 12C034245,
contained information concerning the collision between Baeza and McGuire. The second
accident report, numbered 12C034246, contained information concerning the collision
between Baeza and Ali. Even though the investigating officer made two accident reports,
both reports contained Ali's contact information, including his home address and phone
number. Moreover, the accident reports referenced each other. The 12C034245 accident
report stated that there was a connecting case numbered 12C034246, and the 12C034246
accident report stated that there was a connecting case numbered 12C034245.

Although it seems the accident was Baeza's fault, on May 14, 2014, Baeza filed
suit against Ali for damages exceeding $75,000. In his petition, Baeza alleged that Ali
negligently slammed into his car, which caused his car to collide with McGuire's car.
Because of the collision, Baeza claimed that he "suffered permanent bodily injuries and
economic losses." The petition further stated that Ali could be found and served with
3

process at his home address. The home address listed in the petition was the same home
address listed in both accident reports. A summons, which also stated that Ali could be
found and served with process at this same home address, was issued the same day.
Nevertheless, Baeza did not immediately serve process on Ali.

Under K.S.A. 2014 Supp. 60-203(a)(1), a plaintiff has 90 days to serve process on
a defendant after filing his or her petition with the court "except that the court may extend
that time an additional 30 days upon a showing of good cause by the plaintiff." On
August 11, 2014, 89 days after Baeza filed his petition with the court, Baeza moved for a
30-day extension of time to serve process. In his motion, Baeza provided the following
explanation for why he needed additional time to serve Ali with process:

"The accident giving rise to this claim is unusual in that it involved a three car collision
but it appears that two separate accident reports were generated (car 1 vs. [car] 2) (car 2
vs. [car] 3). Counsel for Plaintiff has not yet obtained the more pertinent of the accident
reports, which caused him delay in proceeding with service of process. Counsel for
Plaintiff respectfully states that this was his oversight, and respectfully requests that the
Court permit him to rectify this error and not prejudice the Plaintiff for same."

Additionally, it seems that Baeza's attorney, Peter Antosh, and the trial judge had a
telephone conversation concerning the motion. The transcript of this conversation is not
included in the record on appeal. On August 12, 2014, the trial judge issued an ex parte
order granting the 30-day extension of time to serve process. Baeza finally served a
summons on Ali on September 11, 2014, 120 days after he filed the petition. Baeza
served process on Ali at the same home address listed in the accident reports and his
petition.

Ali immediately moved to dismiss Baeza's action with prejudice. In this motion,
Ali asserted that the action was time-barred by the statute of limitations because the trial
court had erred in granting the motion for a 30-day extension of time to serve process. Ali
4

argued that the trial court had erred because Baeza had not shown good cause for that
extension under K.S.A. 2014 Supp. 60-203(a)(1). Specifically, Ali argued that Baeza
failed to show good cause for the extension because he had made no efforts to serve him
with a summons before the expiration of the 90-day time limit under K.S.A. 2014 Supp.
60-203(a)(1). To support this argument, Ali relied on Le v. Joslin, 41 Kan. App. 2d 280,
287-89, 202 P. 3d 677 (2009), which held that the trial court properly found Le failed to
show good cause for an extension of time to serve process when Le was capable of
serving process yet never even attempted to serve process before obtaining an extension.

The trial court set the motion for hearing on September 19, 2014. At this hearing,
however, neither Baeza nor Antosh appeared. The trial court dismissed Baeza's case with
prejudice, finding that it erred in granting the time extension because Baeza failed to
show good cause for the extension.

Following the dismissal, Baeza moved to set aside the trial court's judgment. On
November 7, 2014, the trial court held a hearing on Baeza's motion to set aside judgment.
Instead of arguing the motion to set aside judgment, however, the parties agreed to set
aside the trial court's dismissal with prejudice and reargue the merits of Ali's motion to
dismiss with prejudice. Again, Ali asserted that dismissal of Baeza's action was proper
under Le because Baeza was capable of serving process yet never attempted to serve
process on him before asking for the 30-day extension. Baeza countered that the
underlying facts in Le were not similar to his case; thus, the trial court should not follow
Le. Furthermore, citing Mangus v. Stump, 45 Kan. App. 2d 987, 260 P.3d 1210, 2011,
rev. denied 293 Kan. 1107 (2012), Baeza argued that even if good cause for the extension
did not exist, the unique circumstances doctrine excused his untimely service. Antosh
told the trial court that the unique circumstances doctrine applied because if the trial court
had not granted the 30-day extension, Baeza would have been able to timely serve
process on Ali. Antosh explained that he would have personally served Ali by tacking the
summons on Ali's door before the statute of limitations expired.
5

In addition to those arguments, the trial court questioned Antosh about why Baeza
failed to serve a summons on Ali within 90 days of filing his petition. During this
questioning, Antosh admitted that Baeza had been his client in this case and in a workers
compensation case since 2012. Antosh admitted that he obtained the first accident report,
which references that there was a second accident report, on May 12, 2014. Antosh
further admitted that he knew Ali's home address because it was listed in the first
accident report, but because the first accident report did not contain Ali's driver's license
number he was "hoping for an out-of-state driver's license" so he could "secure process
on the Secretary of State." Ali's counsel additionally pointed out to the trial court that
both accident reports were available for immediate download on the City of Wichita
website.

The trial court ultimately dismissed Baeza's case with prejudice. In making this
ruling, the trial judge explained that based on his understanding of Le and Mangus, a
plaintiff must make some effort to serve process within 90 days of filing his or her
petition. The trial judge noted that in Mangus, Mangus' attorney fully explained to the
trial court the reasons why she needed an extension of time to serve process. Then, the
trial judge stated the following:

"My memory is, Mr. Antosh, that you had called my office discussing this and
you'd indicated that you're running out of time and I think my advice was, well, if you're
out of time, then you need to file a motion to extend time for service of process; which
you did on August 11th, 2014.
"And my memory of that conversation was that pretty much the same things that
are in the motion were discussed on the phone . . . .
"The point that I'm trying to make is that if you simply look at the motion that
was filed and the facts that are asserted in the motion, it would appear that, . . . you've got
90 days running; you have difficulty in obtaining police reports that would—that are
necessary in order to obtain service of process.
"And so on the face of the motion, . . . I found good cause. And I think that if
those are the facts, and that's all . . . , good cause is probably present on that motion.
6

"Having said that again, once Mr. Calvert [Ali's attorney] files a motion
challenging that . . . as a result of the adversarial process, it becomes clear that . . . these
accident reports—the first accident report was in your possession on May 12th, that
accident report referenced the second accident report, there was really nothing preventing
you from obtaining the second accident report. It just didn't happen until the end.
"And once those facts are fleshed out, it appears then that . . . you don't have
good cause because there was—the real attempt to start the process of getting this
defendant served occurred at the end of the 90-day period and there really wasn't any
reason why that process couldn't have started earlier. Had the process started earlier, we
would have had service within 90 days. . . . [T]hose facts all of a sudden change the
contour of whether or not good cause exists.
"So it doesn't appear to me that there was good cause to grant the motion now
that I'm aware that . . . accident reports were available; they just weren't requested until
after 90 days; . . . the things that delayed the service of process were delays that were
simply created by the fact that the effort to serve process was pushed off to the tail end of
that 90-day period.
"And I'm not—I don't want to appear to be unduly critical to plaintiff's counsel in
terms of what was represented in the motion . . . . I just think that once the motion is filed
and then you have an adversarial challenge, then the question becomes was my ruling
correct based on what was represented in the motion; and if the answer is no, and the
complete picture was provided in the motion, then I think you have unique
circumstances. Which is what we had in the [sic] Judge Bouker's case in the Mangus
decision.
"If, on the other hand, we have a bare bones filing, motion's granted, then we
have a challenge, and then as a result of the challenge additional facts are brought
forward that change my mind, then the question is, were those facts included in the
original motion; and if the answer is no, I don't believe that you have a circumstance
where the unique circumstances doctrine applies because it's not completely my error if
I'm not given all the information with which to completely evaluate a motion such as this.
. . . .
"So I don't believe we have good cause to extend the 90 days. I don't know that I
would have reached the same decision had a more complete motion been filed. So I don't
know that this is a circumstance where the unique circumstances doctrine is going to kick
in to save the case.
7

"So, Mr. Calvert, your motion to dismiss will be granted."

DID THE TRIAL COURT ERR WHEN IT DISMISSED BAEZA'S ACTION WITH PREJUDICE?

On appeal, Baeza asks this court to reverse the trial court's dismissal of his case
with prejudice. First, Baeza argues that he provided the trial court with good cause for a
30-day extension of time to serve process on Ali. In the alternative, Baeza argues that
even if he failed to provide the trial court with good cause for the extension, his action
was not barred under the unique circumstances doctrine.

Standard of Review

An appellate court exercises de novo review over the trial court's decision on a
motion to dismiss. Mangus, 45 Kan. App. 2d at 991. Additionally, Baeza's argument
concerning whether he had good cause for an extension of time to serve process under
K.S.A. 2014 Supp. 60-203(a)(1) requires this court to interpret statutory language.
Statutory interpretation presents a question of law over which an appellate court has
unlimited review. Le, 41 Kan. App. 2d at 284. Last, whether the unique circumstances
doctrine is applicable is a question of law subject to de novo review. Finley v. Estate of
DeGrazio, 285 Kan. 202, Syl. ¶ 1, 170 P.3d 407 (2007).

Application of K.S.A. 2014 Supp. 60-203(a)(1)

K.S.A. 2014 Supp. 60-203(a) states:

"A civil action is commenced at the time of: (1) Filing a petition with the court, if
service of process is obtained or the first publication is made for service by publication
within 90 days after the petition is filed, except that the court may extend that time an
additional 30 days upon a showing of good cause by the plaintiff; or (2) service of
8

process or first publication, if service of process or first publication is not made within
the time specified by paragraph (1)."

As a result, to timely commence a civil action, a plaintiff must serve process on the
defendant within 90 days of the date that the plaintiff filed his or her petition with the
court. Moreover, "[t]he showing of good cause by the plaintiff is a condition precedent to
the trial court's decision of whether to grant the 30-day extension under K.S.A. 60-
203(a)(1)." Le, 41 Kan. App. 2d at 285.

In this case, the car accident giving rise to this cause of action occurred on May
17, 2012. Under K.S.A. 60-513(a)(4), Baeza had 2 years to file an action against Ali for
damages arising from the car accident. Thus, Baeza had until May 17, 2014, to file his
action against Ali. Baeza ultimately filed his action against Ali on May 14, 2014, just 3
days before the statute of limitations expired. Then, Baeza failed to serve a summons on
Ali within 90 days of filing his petition as stated in K.S.A. 2014 Supp. 60-203(a)(1).
Instead, Baeza moved for a 30-day extension of time to serve process for good cause. The
trial court granted this extension. Baeza finally served a summons on Ali on September
11, 2014, the 30th day of his 30-day extension.

Because Baeza failed to serve process on Ali before the statute of limitations
expired, the question as to whether Baeza timely commenced his action depends upon if
Baeza served process on Ali within the time limits stated in K.S.A. 2014 Supp. 60-
203(a)(1). As a result, Baeza's action would be time-barred by the statute of limitations
unless the trial court erred in ruling that he had not shown good cause for the extension or
the trial court erred in ruling that the unique circumstances doctrine was inapplicable.

9

The Trial Court Correctly Determined That Baeza Failed to Show Good Cause for a 30-
Day Extension of Time to Serve Process on Ali.

Baeza contends that the trial court erred when it ruled that he had not shown good
cause for a 30-day extension of time to serve process on Ali under K.S.A. 2014 Supp. 60-
203(a)(1). Baeza takes issue with the trial court's reliance on Le in reaching its
determination. Baeza asserts that Le was "not on point and formed an insufficient basis
for reversal of the extension."

In Le, Le filed her petition before the applicable statute of limitations had expired.
Nevertheless, Le did not serve process on the defendant until after the statute of
limitations had expired. Moreover, like in Baeza's case, Le requested and was granted a
30-day extension of time to serve process following the expiration of the statutory 90-day
period to serve process under K.S.A. 60-203(a)(1). Le served her summons on the
defendant during this 30-day extension. Later, however, the trial court determined that it
had erred when it granted the extension because Le had failed to show good cause for the
extension.

The Le court affirmed the trial court's dismissal, determining that nothing in the
record on appeal supported that Le had shown good cause for the extension as required
under K.S.A. 60-203(a)(1). 41 Kan. App. 2d at 285-89. The Le court further held that the
trial court properly determined that good cause did not exist because nothing in the record
indicated that something outside of Le's control was preventing her from serving process
yet "Le never even attempted to serve [the defendant] before obtaining the 30-day
extension under K.S.A. 60-203." 41 Kan. App. 2d at 287-88. Thus, the Le holding stands
for the proposition that a plaintiff who is capable of obtaining service of process within
90 days of filing his or her petition, but fails to do so, cannot make a showing of good
cause for a 30-day extension under K.S.A. 2014 Supp. 60-203(a)(1).
10

In this case, the trial court initially granted the 30-day extension because in
Baeza's motion, Baeza had indicated that he did not have all the relevant information to
serve process on Ali. During the hearing, however, the trial court became aware of facts
not included in Baeza's motion. Those facts clearly proved that Baeza was capable of
obtaining service of process within 90 days of filing his petition but failed to do so.

At the hearing, the trial court learned that Baeza had known Ali's home address
since he obtained the first accident report 2 days before he filed his petition. The trial
court further learned that both Baeza's petition and the summons, which was issued the
same day as the petition, contained Ali's home address. The trial court also learned that
even if the second accident report contained important information, it was available for
immediate download on the City of Wichita website. Most importantly, while arguing
that the unique circumstances doctrine applied, Antosh told the trial court that Baeza
would have been able to timely serve process on Ali within 90 days of filing his petition
but for the trial court's order granting the 30-day extension of time to serve process.
Antosh asserted that if the trial court had denied the motion, he would have personally
served Ali by tacking a summons on Ali's home door on August 12, 2014, the 90th day
after Baeza filed his petition. By making this statement, Antosh admitted to the trial court
that Baeza did not need the extension to obtain timely service of process.

Thus, although Baeza asserts that the trial court incorrectly relied on Le because it
was "not on point," a review of the facts in Baeza's case clearly shows that Le was on
point. Again, the Le court held that good cause for a 30-day extension of time to serve
process under K.S.A. 60-203(a)(1) cannot exist when nothing is preventing a plaintiff
from serving process yet that plaintiff fails to even attempt to serve process before
obtaining an extension. 41 Kan. App. 2d at 288. Here, there is ample evidence to support
that Baeza was capable of serving process on Ali within 90 days of filing his petition but
failed to do so before obtaining the extension. Accordingly, the trial court did not err
11

when it relied on Le to rule that Baeza had failed to show good cause for the 30-day
extension under K.S.A. 2014 Supp. 60-203(a)(1).

It is also important to note that Baeza's remaining criticisms of Le are unfounded.
First, Baeza takes issue with the fact that the Le court cited Fidelity Sav. Ass'n of Kansas
v. Ricker, 141 F.R.D. 324, 326 (D. Kan. 1992), a case where the federal district court
examined what constitutes "good cause" under K.S.A. 60-203(a)(1). Baeza points out that
the Kansas rules of civil procedure and the federal rules of civil procedure are very
different. Nevertheless, both K.S.A. 2014 Supp. 60-203(a)(1) and Fed. R. Civ. Proc. 4(m)
require a showing of good cause for an extension of time to serve process. Although
Fidelity is a federal case, the Fidelity court examined good cause for an extension under
K.S.A. 60-203(a)(1), not Fed. R. Civ. Proc. 4, because the case had originally been filed
in state court before being removed to federal district court. 141 F.R.D. at 325–26.
Moreover, as the Fidelity court noted in 1992, no Kansas caselaw defining "good cause"
under K.S.A. 60-203(a)(1) existed. 141 F.R.D. at 325. "While federal cases do not
override established Kansas law, they may be persuasive authority." Lewis v. Kansas
Production Co., 40 Kan. App. 2d 1123, 1131, 199 P.3d 180 (2009). Given that the
Fidelity court examined K.S.A. 60-203(a)(1) and Kansas caselaw defining good cause
was lacking, Fidelity was highly persuasive authority.

Second, Baeza argues that the Le holding regarding good cause is incorrect
because the plain language of K.S.A. 2014 Supp. 60-203(a)(1) does not require that a
plaintiff attempt to serve process before requesting an extension of time for good cause.
Baeza correctly asserts that the plain language of K.S.A. 2014 Supp. 60-203(a)(1) does
not include such a requirement. Nonetheless, if the facts of the case prove that nothing is
preventing a plaintiff from serving a defendant with a summons within 90 days of filing
his or her petition, yet that plaintiff fails to take any action, how could good cause for an
extension exist? The legislature included the "good cause" language in K.S.A. 2014
Supp. 60-203(a)(1) for a reason. The legislature intended that a trial court grant a 30-day
12

extension of time to serve process only when the plaintiff has provided the court with a
legitimate reason why it was unable to serve process within the 90-day time limit of
K.S.A. 2014 Supp. 60-203(a)(1). If this court were to find that Baeza had shown good
cause for an extension even though he took no actions to attempt to serve process before
obtaining the extension, this court would render the good cause language in K.S.A. 2014
Supp. 60-203(a)(1) meaningless. Thus, Baeza's criticism is baseless.

Finally, even if this court determined that the trial court's reliance on Le was
improper, Baeza's good cause argument would still fail under our Supreme Court's
holdings in Finley. When the trial court reaches the correct result, the trial court's finding
will be upheld even though it relied upon the wrong ground for its finding. Hockett v. The
Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011).

In Finley, our Supreme Court made two holdings which control the outcome of
Baeza's good cause argument. First, our Supreme Court held that "providing good cause
at the time of the requested extension requires that the represented facts—which
purportedly constitute good cause—be grounded in the truth." Finley, 285 Kan. at 209.
Regarding what constituted "the truth," our Supreme Court stated:

"Misrepresentation need not be intentional. For example, fraudulent misrepresentation
requires proof that the defendant knew the statement was untrue or was reckless as to the
truth or falsity, while negligent misrepresentation only requires proof that the defendant
failed to exercise reasonable care or competence to obtain or communicate true
information." Finley, 285 Kan. at 212 (citing Gerhardt v. Harris, 261 Kan. 1007, 1018,
934 P.2d 976 [1997]).

Here, Baeza's motion for a 30-day extension to serve process was not grounded in
the truth. For example, Baeza's motion stated:

13

"The accident giving rise to this claim is unusual in that it involved a three car collision
but it appears that two separate accident reports were generated (car 1 vs. [car] 2) (car 2
vs. [car] 3). Counsel for Plaintiff has not yet obtained the more pertinent of the accident
reports, which caused him delay in proceeding with service of process. Counsel for
Plaintiff respectfully states that this was his oversight, and respectfully requests that the
Court permit him to rectify this error and not prejudice the Plaintiff for same."

Although Antosh states that the failure to obtain the second accident report was his
oversight, this statement fails to inform the trial court that Baeza already knew Ali's home
address from the first accident report. Instead, the statement implies that Baeza cannot
serve process until he gets the second accident report. The statement about the more
pertinent accident report also implies that Baeza had been making efforts to obtain the
second accident report. Certainly, Baeza's motion fails to inform the trial court that the
second accident report was available for immediate download on the City of Wichita
website. Furthermore, the trial judge clearly felt that Baeza's motion failed to inform him
of the whole truth, as the trial judge stated that there was obviously no good cause for the
extension "once [the] facts [were] fleshed out."

At the very least, Baeza "failed to exercise reasonable care or competence to
obtain or communicate true information" to the trial court in his motion. See Finley, 285
Kan. at 212. Given our Supreme Court's holding in Finley that good cause for an
extension cannot exist unless the facts represented to the trial court are grounded in the
truth, Baeza cannot successfully argue that the trial court erred in determining that he had
failed to show good cause for an extension on appeal.

Second, in Finley, our Supreme Court also held that "a mistake of counsel or
ignorance of the rules usually does not constitute good cause for failure of timely
service." 285 Kan. at 209 (citing In re Kirkland, 86 F.3d 172, 175 [10th Cir. 1996]). In
Baeza's motion and at the hearing, Antosh stated that Baeza's failure to obtain the second
accident report was his fault. Although Antosh continued to assert that obtaining the
14

second accident report was somehow necessary before service could occur, Antosh
nevertheless admitted that the failure to timely serve Ali was his mistake. Consequently,
under Finley, Antosh's mistakes cannot constitute good cause.

In summary, Baeza was capable of timely serving process on Ali yet failed to do
so. Despite having Ali's home address, Baeza asked for a 30-day extension of time to
serve process before he ever even attempted to serve process on Ali. Under this court's
holding in Le, the trial court correctly ruled that Baeza had failed to show good cause for
an extension. Furthermore, assuming arguendo that the trial court's reliance on Le was
improper, Baeza's good cause arguments would still fail given our Supreme Court's
holdings in Finley. As a result, we affirm the trial court's determination that good cause
for Baeza's 30-day extension of time to serve process did not exist.

The Trial Court Correctly Ruled That the Unique Circumstances Doctrine Did Not
Excuse Baeza's Untimely Service of Process.

Next, Baeza argues that even if he failed to show good cause for the 30-day
extension of time to serve process under K.S.A. 2014 Supp. 60-203(a)(1), his untimely
service of process was excused by the unique circumstances doctrine. The unique
circumstances doctrine is applicable in very limited and specific situations. Finley, 285
Kan. at 207. When the unique circumstances doctrine is applicable, it prevents a
plaintiff's action from being barred by the statute of limitations even though the plaintiff
did not timely serve process. In Finley, our Supreme Court determined that the unique
circumstances doctrine "depends upon such concepts as equity, the interests of justice,
good faith, estoppel, or nonparty error." 285 Kan. at 209.

Baeza contends that this court should reverse the trial court's ruling that the unique
circumstances doctrine did not excuse his untimely service of process. Baeza argues that
his "case almost perfectly parallels Mangus v. Stump," where this court affirmed the trial
15

court's ruling that the unique circumstances doctrine excused Mangus' untimely service of
process. 45 Kan. App. 2d 287, Syl. ¶ 7. Despite Baeza's contention, his case stands in
stark contrast to Mangus.

In Mangus, this court compared the facts of Mangus' case to the facts in Finley. 45
Kan. App. 2d at 999. Regarding this comparison, the Mangus court stated the following:

"The facts herein are similar to the facts in Finley where the Kansas Supreme
Court found it was inappropriate to apply the unique circumstances doctrine. However,
the facts herein are distinguishable from Finley in one important respect. In Finley, the
plaintiff's counsel made untrue representations to the court in order to secure the 30-day
extension of time. The Finley court emphasized this misrepresentation in determining that
it was inappropriate to apply an equitable exception to the facts of that case. 285 Kan. at
209. Here, Mangus' counsel did not misrepresent any facts to the district court in order to
obtain the 30-day extension of time." 45 Kan. App. 2d at 999.

Thus, the Mangus court distinguished the facts of Mangus' case from Finley because
Mangus had been upfront with the trial court, not misrepresenting any facts to obtain the
extension. The Mangus court affirmed the trial court's ruling that the unique
circumstances doctrine was applicable based on this distinction. 45 Kan. App. 2d at 1000.

Baeza, however, obtained the 30-day extension of time to serve process based
upon facts not wholly grounded in the truth. As previously discussed, Baeza failed to
include pertinent information in his motion. Because Baeza excluded this information in
his motion, the trial judge was unable to make a fully informed decision on the motion.
Moreover, in dismissing Baeza's action, the trial judge specifically noted that Baeza
failed to include relevant information in his motion that prevented the judge from making
an informed ruling on the motion. Consequently, the underlying facts of Baeza's case are
not parallel to the facts in Mangus. Instead, the facts in Baeza's case parallel the facts in
Finley, where our Supreme Court refused to conclude that the unique circumstances
16

doctrine applied because Finley had misled the court to obtain the extension. Thus, based
on our Supreme Court's holding in Finley and this court's holding in Mangus, the trial
court correctly ruled that the unique circumstances doctrine did not excuse Baeza's
untimely service of process.

Finally, it is worth mentioning that in Finley, our Supreme Court also held that the
unique circumstances doctrine applies only when the untimely filing was a result of a
nonparty error. 285 Kan. at 211. Again, in Baeza's motion and at the hearing, Antosh
stated that Baeza's failure to timely serve process was his error. Additionally, in arguing
that the unique circumstances doctrine applied, Antosh told the trial court that if the trial
court had not granted the 30-day extension of time to serve process, he would have timely
served process on Ali by tacking the summons on Ali's door himself. By making this
statement, Antosh admitted that the failure to timely serve process was a party error.
Clearly, the unique circumstances doctrine cannot excuse a plaintiff's untimely service of
process when that plaintiff admits that he could have timely served process without the
extension. Therefore, Baeza's unique circumstances argument also fails because his
untimely service resulted from party error.

Conclusion

For the foregoing reasons, the trial court correctly concluded that Baeza had failed
to show good cause for the 30-day extension of time to serve process under K.S.A. 2014
Supp. 60-203(a)(1). Moreover, the trial court correctly concluded that the unique
circumstances doctrine did not excuse Baeza's untimely service on Ali. Because Baeza
has failed to show good cause for the extension or, alternatively, that the unique
circumstances doctrine saved his action, Baeza did not timely serve process on Ali when
he ultimately served a summons on Ali 120 days after he filed his petition. Consequently,
Baeza's action was not commenced on May 14, 2014, when he had filed his petition just
3 days before the statute of limitations expired. As a result, the trial court properly
17

dismissed Baeza's action with prejudice because Baeza's action was now barred by the
statute of limitations. Accordingly, we affirm the trial court's dismissal of his case with
prejudice.

Affirmed.