Huffman v. Stormont-Vail Healthcare, Inc.

1

NOT DESIGNATED FOR PUBLICATION

No. 113,383

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DONNA L. HUFFMAN, CRAIG A. REINMUTH,
and
LAURREL HUFFMAN,
Appellants,

V.

STORMONT-VAIL HEALTHCARE, INC., STORMONT-VAIL, INC., STORMONT-VAIL
SERVICES, INC., MICHELLE SCHIERLING, M.D., EKWENSI GRIFFITH, D.O.,
and
AMERICAN COLLEGE OF SURGEONS,
Appellees.


MEMORANDUM OPINION

Appeal from Jefferson County District Court; PHILLIP L. SIEVE, judge. Opinion filed July 8,
2016. Affirmed.

Donna L. Huffman, of The Law Office of Donna L. Huffman, of Oskaloosa, for appellants.

Mary E. Christopher and Alison J. St.Clair, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of
Topeka, for appellees.

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: Donna L. Huffman, Craig A. Reinmuth, and Laurrel Huffman
(collectively Plaintiffs) filed a civil lawsuit against Stormont-Vail Healthcare, Inc.,
Stormont-Vail, Inc., Stormont-Vail Services, Inc., Michelle Schierling, M.D., Ekwensi
Griffith, D.O., and the American College of Surgeons (collectively Defendants). Later,
the district court issued an ex parte order granting Plaintiffs a "good cause" extension of
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time to serve process pursuant to K.S.A. 2015 Supp. 60-203(a)(1). Defendants challenged
the validity of the extension, however, and the district court found, in retrospect, that its
ex parte order was invalid because Plaintiffs had not shown good cause. Because of
Plaintiffs' failure to serve Defendants within 90 days of filing their petition, their action
was not commenced before the applicable statute of limitations expired. In part, as a
result of this failure, the district court dismissed Plaintiffs' case with prejudice and they
appealed. After carefully reviewing the record on appeal and considering the parties'
briefs and oral arguments, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2011, Donna was involved in an automobile accident, and paramedics
transported her to Stormont-Vail Hospital (Stormont-Vail) where she received treatment
for her injuries and was discharged later that day. Almost 2 years later, on June 21, 2013,
Plaintiffs filed a lawsuit against Defendants for damages they allegedly sustained due to
the medical care Donna received at Stormont-Vail and their billing practices used after
providing her medical services. Stormont-Vail, Inc., Stormont-Vail Services, Inc., and the
American College of Surgeons were later dismissed from the case either voluntarily or
without objection from Plaintiffs.

In their petition, Plaintiffs raised the following claims: negligence; negligence per
se; negligent failure to provide statutory trauma center treatment; medical malpractice;
tortious inference with a contract or, alternatively, tortious interference with a prospective
business advantage; loss of consortium; pain and suffering; outrageous conduct causing
severe emotional distress; and misrepresentation or fraud. On appeal, the parties agree
that under K.S.A. 60-513 the statute of limitations for these claims is 2 years.

The focus of this appeal is on the Kansas statute relating to service of process.
Under K.S.A. 2015 Supp. 60-203(a)(1), a civil action is commenced at the time the
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petition is filed with the clerk of the court if service of process is obtained within 90 days.
District courts may, however, extend this 90-day period for "an additional 30 days upon a
showing of good cause by the plaintiff." See K.S.A. 2015 Supp. 60-203(a)(1). If service
is not effected during the initial 90-day period or the properly extended 120-day period,
the civil action is considered commenced on the date of service of process or first
publication. K.S.A. 2015 Supp. 60-203(a)(2). As a result, for Plaintiffs' lawsuit to be
considered timely, Plaintiffs needed to properly serve Defendants with process no later
than September 19, 2013. See K.S.A. 2015 Supp. 60-203(a)(1).

But on September 13, 2013, the district court signed an ex parte order granting
Plaintiffs' "application for the extension of time . . . [f]or good cause shown," which gave
them until October 21, 2013, to effect service. See K.S.A. 2015 Supp. 60-206(a)(1)(C).
The order, which shows a file stamp date of September 16, 2013, did not explicitly state a
finding of "good cause," nor did it specify why Plaintiffs needed an additional 30 days to
serve Defendants. Moreover, a written motion for extension of time was not filed in the
district court in conjunction with the order.

On November 22, 2013, Defendants moved to dismiss Plaintiffs' case, with
prejudice, due to improper service of process. Defendants contended the district court
improperly granted Plaintiffs' request for a 30-day extension of time to serve process.
They argued that due to Plaintiffs' failure to file a written motion, Plaintiffs had not
shown good cause because there was "no record that they demonstrated any cause."
Defendants also argued that even if Plaintiffs had attempted to show good cause, they
would have been unable to do so because the record did not show any reasonable and
diligent efforts to serve process prior to obtaining the extension. In support, Defendants
noted that the district court clerk issued summonses only the day before the district judge
signed the ex parte order.

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Plaintiffs responded to the motion, disputing Defendants' claim that they failed to
make any reasonable and diligent attempts to serve process prior to requesting an
extension because "the petition, various letters, and communications occurred between
Plaintiffs and Defendants[,] . . . and [Donna] . . . erroneously believed Counsel [for
Defendants] would accept service [on their behalf.]" With regard to Defendants'
contention that they had failed to demonstrate any cause for the extension, Plaintiffs
attached a written motion to their response. The motion, which was signed by Donna,
was dated September 10, 2013, and was not file stamped. In the motion, Donna alleged
the "[p]arties initially communicated and provided a copy of the complaint delaying
service while communicating," and more time was required because:

"On Friday, September 6, 2013[,] Plaintiffs were advised . . . outside Counsel
will be retained and anticipates they will accept service however one party is out of state
and in an abundance of caution as service impacts jurisdiction under potential statute of
limitations for some claims an [sic] a request for an additional 30 days is made."

Donna also noted that retained counsel would be "entering an appearance for Plaintiffs, if
[he or she had] not already [done so]."

Subsequently, Defendants challenged Plaintiffs' reliance on the motion for
extension of time because it was unclear whether the motion was actually provided to the
district court prior to the issuance of the ex parte order. Additionally, Defendants argued
that while Kansas caselaw provides that good cause generally does not exist if a motion is
not filed, even if Plaintiffs filed a timely motion, the reasons Donna cited were
insufficient to establish good cause. Defendants also claimed it was unreasonable for
Donna to assume that Defendants' counsel would accept service, because "[a]t no time
prior to the filing of [P]laintiffs' [p]etition did [D]efendants or counsel for [D]efendants
indicate that service on counsel would be deemed acceptable." In fact, on September 13,
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2013, Defendants' counsel had informed Donna that outside counsel would not be
accepting service.

The district court held a hearing on Defendants' motion to dismiss on January 16,
2014. At the hearing, the district judge explained that while he had a "pretty vivid
recollection" of receiving the ex parte order Plaintiffs drafted, he had "no recollection" of
receiving a motion, and he asked Plaintiffs' counsel, Dennis Hawver, to address this
situation because he had "real serious reservations . . . about the validity of that
extension." In response, Hawver insisted that Donna had "electronic proof of
transmission . . . and . . . a witness that [who would] testify that he mailed [it]." Hawver
then stated: "[W]e have a strange situation here in [the] Jefferson County Clerk's Office
where my client, when she is acting as counsel, on occasion her motions are
[intentionally] not filed even though they are submitted." As proof, Hawver offered
documentation from another Jefferson County civil case, which he claimed showed that it
was "a pattern and practice" of the clerk not to file motions. The district judge, however,
discounted this information because he wanted "to keep focus on this case."

Donna then made the following remarks:

"Very briefly—I appreciate the leniency of the Court. I have on my computer—
which the Court can confirm when they get home, or feel free to look on my computer—
that there was a—I emailed you a copy of the fax that I sent to your fax number, that I
had, on September 10th[.] . . . And I have the e-mail to you that has one single attachment
that has the motion in the same order, and then on the 13th you responded that you were
signing the order, you would get it to the clerk.
"And I only point that out because there seems to be some confusion there, and
I'm just here to refresh your recollection. I know you can check that on your computer, or
you can look at mine, but I—I know you have a lot of cases, Your Honor, but the motion
was with the order."

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The district judge questioned the parties as to the Le v. Joslin, 41 Kan. App. 2d
280, 285-89, 202 P.3d 677 (2009), case which he stated stood for the proposition that
"'[i]f good cause was not shown . . . at the time the judge signed the order . . . then the
order [was] invalid, and it [could not] be later rehabilitated by counsel bringing in
additional facts.'" Defendants agreed with this interpretation of Le, but Hawver claimed
that Donna's motion demonstrated that good cause existed, at that time, for several
reasons: (1) While the motion did not mention that Donna had brain damage, she
requested the extension "out of an abundance of caution, knowing that she was brain
damaged . . . and . . . was aware of her limitations"; (2) Donna needed additional time to
serve process because she was attempting to retain counsel; and (3) Donna anticipated
that Defendants' counsel would accept service. Additionally, when asked if she tried to
serve Defendants prior to requesting an extension, Donna replied, "[W]e had given them
the—the draft—the petition, and [Hawver wrote] a letter and they wanted to confer."

Ultimately, the district judge granted Defendants' motion to dismiss. In ruling, the
district judge stated:

"Let me . . . just say this: I have no recollection of . . . seeing that [motion] as support of
my signing the order extending the time for service. I do have vivid recollection—pretty
vivid recollection—of receiving that order, I believe, as an attachment to an e-mail—
maybe it was in regular mail; I can't remember for sure—from Ms. Huffman in which she
request[ed] an extension of time for service—30 day extension, statutory; and I signed
that.
"But I can—I can say this without any reservation: That in signing that order I
did not make a finding that there was good cause for extending it, and I think that under
all these circumstances that I just committed plain error in signing that order extending
the time for service."

The district judge also found that, pursuant to K.S.A. 2015 Supp. 60-203(a)(1) and
Le, Plaintiffs failed to sustain their burden to demonstrate the good cause necessary to
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obtain a 30-day extension because Plaintiffs failed to file any written motion, made no
reasonable and diligent attempts to serve Defendants prior to requesting the extension,
and the motion Plaintiffs attached to their response to Defendants' motion to dismiss bore
"no indicia of having been filed with the [c]ourt, and [it merely] indicate[d] [that] the 30-
day extension of time was sought 'in an abundance of caution,'" which did not qualify as
good cause. Alternatively, the district judge also found that Plaintiffs had failed to
properly serve Defendants within 120 days of the filing of the lawsuit.

After the January 16, 2014, hearing and prior to the issuance of a final journal
entry, Plaintiffs filed a motion seeking the district judge's recusal and lodged several
objections to Defendants' proposed journal entry. The district judge denied the motion for
recusal on October 15, 2014, and 5 days later, on October 20, 2014, he filed his final
journal entry regarding Defendants' motion to dismiss. Four days later, on October 24,
2014, Plaintiffs moved for reconsideration of the recusal decision and filed a document
entitled "Premature Notice of Appeal."

Although Plaintiffs' recusal motion was reconsidered, the original denial was
ultimately affirmed in a journal entry filed on February 4, 2015. Twenty days later, on
February 24, 2015, Plaintiffs filed a notice of appeal. Plaintiffs docketed their appeal on
March 30, 2015.

Shortly thereafter, Defendants moved our court for an involuntary dismissal of
Plaintiffs' appeal. Defendants argued that Plaintiffs failed to file a timely notice of appeal
because Plaintiffs filed their notice of appeal more than 30 days after the district court
filed its October 20 journal entry. Although Defendants acknowledged that Plaintiffs filed
a "Premature Notice of Appeal" on October 24, Defendants, relying upon Kansas
Supreme Court Rule 2.03 (2015 Kan. Ct. R. Annot. 13), insisted that Plaintiffs'
"Premature Notice of Appeal" did not qualify as an effective notice of appeal because it
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was filed after the district court entered its final judgment in the case, rather than before.
Unpersuaded by Defendants' argument, our court retained Plaintiffs' appeal.

JURISDICTION

At the outset, Defendants request reconsideration of our court's decision to deny
their motion to involuntarily dismiss Plaintiffs' appeal on jurisdictional grounds. In their
brief, Defendants merely reiterate the arguments they made previously in support of their
motion. We exercise unlimited review over jurisdictional issues. In re T.S.W., 294 Kan.
423, 432, 276 P.3d 133 (2012).

We concur with the prior finding of our court that we have jurisdiction over this
appeal. As we stated:

"Appellees' motion for involuntary dismissal is denied. . . . Appellants filed a
notice of appeal well within 30 days of the district court's October 20, 2014 ruling. It is
true that Appellants did not docket an appeal within 21 days of the filing of this notice of
appeal, but the 21-day deadline for docketing is not jurisdictional. See Adams v. St.
Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998). Appellants'
timely-filed notice of appeal gives this court jurisdiction over the rulings made in the
district court's October 20, 2014 journal entry. Appellants' February 24, 2015 notice of
appeal gives this court jurisdiction over the district court's February 2015 rulings relating
to recusal. Both of these issues were docketed as one appeal, and this court has
jurisdiction over the appeal."

PLAINTIFFS' FAILURE TO ADDRESS ALTERNATIVE GROUNDS FOR DISMISSAL

The district court dismissed the Plaintiffs' case on two grounds, the invalidity of
the extension order and, alternatively, Plaintiffs' failure to properly serve Defendants
within 120 days. Specifically, the district court determined that Plaintiffs failed to comply
with the statutory procedure outlined in K.S.A. 2015 Supp. 60-303 and K.S.A. 2015
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Supp. 60-304 when they attempted to serve Stormont-Vail, as "[t]he return receipt
[P]laintiffs attached to their [r]eturn of [s]ervice . . . was not signed by Stormont-Vail
HealthCare, Inc.'s registered agent, Jim Kilmartin, nor did the person who signed the
return receipt indicate his status as an agent able to accept service of process." Similarly,
Plaintiffs' purported service on Drs. Griffith and Schierling was deemed improper
because Plaintiffs did not attach copies of return receipts evidencing delivery to the
returns of service. Moreover, the printouts from the United States Postal Service website
that Plaintiffs did attach "state the time and date of delivery and the city and state where
delivery was made, but . . . do not state the nature of the process, to whom delivered, the
address where delivered, or the person or entity effecting delivery."

Inexplicably, Plaintiffs do not challenge this alternative basis for the district court's
dismissal order. Instead, they focus solely upon the propriety of the district court's
conclusion that they failed to show good cause for an extension of time to serve process
upon Defendants. Issues not briefed by the appellant are deemed waived and abandoned.
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

Importantly, an appellant's failure to address all of the alternative grounds for the
district court's judgment renders the issues on appeal academic and unassailable. See
Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 627-28, 464 P.2d 281 (1970) (when
district court's decision is based on alternative grounds, appellant's failure to challenge
both grounds on appeal "renders unnecessary" a decision on the issue raised); Parker v.
Mid-Century Ins. Co., 25 Kan. App. 2d 329, 332, 962 P.2d 1114 (1998) (appellant did not
challenge one of the district court's conclusions of law, and the ruling was deemed
conclusive).

We conclude that Plaintiffs' appeal necessarily fails because even if the district
court erred when it found the extension order was invalid, Plaintiffs' cause of action is
still time-barred by the statute of limitations due to their failure to challenge the district
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court's determination that they did not properly effect service within 120 days of the
filing of their petition. Nevertheless, for the sake of completeness, we will review the
other basis for the district court's decision.

THE VALIDITY OF THE EX PARTE EXTENSION ORDER

The central issue raised on appeal is whether the district court erred when it
dismissed Plaintiffs' case, with prejudice, on the basis of improper service of process. In
resolving this issue, we consider the propriety of the district court's finding that Plaintiffs
failed to demonstrate good cause prior to obtaining the ex parte extension order.

We exercise unlimited review over a district court's decision on a motion to
dismiss. Mangus v. Stump, 45 Kan. App. 2d 987, 991, 260 P.3d 1210 (2011), rev. denied
293 Kan. 1107 (2012); Baeza v. Kemal, No. 113,057, 2015 WL 7162332, at *4 (Kan.
App. 2015) (unpublished opinion), petition for rev. filed December 13, 2015, cross-
petition for rev. filed December 23, 2015. Moreover, in order to resolve Plaintiffs'
arguments concerning the existence of good cause, we must interpret and apply K.S.A.
2015 Supp. 60-203(a), which is a question of law subject to de novo review. See
Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

A showing of good cause by the plaintiff is a condition precedent to granting an
extension of time to serve process under K.S.A. 2015 Supp. 60-203(a)(1). Le, 41 Kan.
App. 2d at 285. Moreover, a plaintiff may not "first obtain the [extension] order and then,
when challenged, at a later date actually establish her grounds for good cause." Finley v.
Estate of DeGrazio, 285 Kan. 202, 209, 170 P.3d 407 (2007). As a result, Plaintiffs must
overcome the district court's finding that they failed to show good cause prior to
obtaining an extension of time, because they did not "file any written motion in
connection with the [proposed] [o]rder."

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Plaintiffs claim the district court's findings were not only erroneous, they were
arbitrary and unreasonable because the district judge based his decision upon his inability
to recall receiving the motion. Plaintiffs point to the evidence they presented which they
claim established that the motion was provided to the district judge via email and its
absence from the record was due to "some clerical or other misunderstanding" on the part
of the court clerk. In support, Plaintiffs rely on the email Donna mentioned at the hearing
and the documentation she showed the district judge pertaining to another Jefferson
County civil case. Of note, Plaintiffs did not request that any documentation pertaining to
the email be added to the record at the hearing on Defendants' motion to dismiss.

Plaintiffs filed a "Notice of Filing the Proffers" in the district court on February
24, 2015, the same day they filed their second notice of appeal, and several documents
are attached to the notice. These documents comprise the evidentiary basis relied upon by
Plaintiffs in support of their arguments.

First, Plaintiffs attached a document that appears to be a copy of an email Donna
sent the district judge. This email, dated September 10, 2013, reads:

"I called your home and left a message. I am sending this to you by email attachment as I
couldn't get the fax to work (I'm sure I'm not doing it correctly and apologize).
"If you wouldn't mind reviewing at your earliest convenience and advising if this is
approved.
"I am happy to discuss or supplement any or all of them further at your discretion or
request."

The document further indicates that the email contained one attachment labeled
"178168283-153457072.pdf (338K)."

Second, Plaintiffs' notice of appeal contains a copy of a motion and proposed
order, which Donna claims she attached to this email. The top left-hand corner of the
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motion contains the notation "Sep 10 13 03:57p" and "p.4" appears in the top right-hand
corner. The proposed order contains an identical notation in the top left-hand corner, but
the top right-hand corner states: "p.5."

Third, Plaintiffs attached what appears to be a follow-up email Donna asserts she
sent the district judge on September 12, 2013, which states:

"I am not meaning to be pushy but noticed you were working this morning and wondered
if you had the chance to make a determination on the motions to extend service I had sent
Tuesday or would like more information before deciding.
"I appreciate your consideration of the matter and look to hear from you."

Apparently, 2 days later, the district judge responded: "I will sign and forward to
the Clerk's office on Monday the 16th."

Fourth, Plaintiffs attached two documents from the other, unrelated Jefferson
County case: (1) a Record of Activity (ROA) detailing the filings in the case which
contains a handwritten note indicating the court clerk told Donna her "motion" would be
filed if the judge did not sign the order, and (2) a motion for default judgment, which was
file stamped on September 23, 2013.

Having reviewed the four categories of documentation, we find the district court
did not err when it discounted this evidence. Quite simply, none of this documentation
proves that Plaintiffs forwarded the district judge a motion for extension of time with the
proposed extension order.

With regard to the purported email Donna sent on September 10, 2013, the
printout Plaintiffs attached to their notice does not prove that the motion was actually
attached to the email because only one attachment with a generic label is listed on the
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email. It is also unclear whether Plaintiffs sent the email because the printout does not
contain any indicia that it originated from an email server. Significantly, the following
statement appears at the bottom of the other emails Plaintiffs attached to their notice:
"https://mail.aol.com/webmail-std/en-us/PrintMessage." It is unknown why the
September 10, 2013, email does not contain the same notation.

Similarly, the documentation from the other, unrelated Jefferson County case does
not prove that Plaintiffs' motion was absent from the record due to an error by the court
clerk. Unlike the motion in this case, the motion for default judgment in the other case
that was supposedly never filed is file stamped. Moreover, the file stamp raises questions
concerning the authenticity of the handwritten note reflected on the ROA report, because
the report covers a timespan predating the file stamp date and, thus, neither the motion
nor the order the clerk apparently filed in lieu of the motion are reflected on the report.

For their part, Defendants do not address the Plaintiffs' notice of proffers, nor the
sufficiency of the evidence attached to it. Instead, Defendants note that Plaintiffs'
purported motion has no file stamp, and they urge us to find, as the district court did, that
the facts of this case are analogous to Le.

The Defendants argue that in Le, our court found that a "plaintiff [is] required to
demonstrate good cause prior to obtaining an extension and [the plaintiff may not] first
obtain the extension and establish the grounds later when challenged.]" In Le, Le filed a
negligence action, and she obtained a 30-day extension of time to serve process without
filing a written motion. The defendant challenged the ex parte extension order on the
grounds that Le failed to make a proper showing of "good cause." 41 Kan. App. 2d at
283. The district court agreed, reversed its prior finding of "good cause," and dismissed
Le's cause of action because it was barred by the applicable statute of limitations. 41 Kan.
App. 2d at 283.

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On appeal, Le contended the district court erred when it found the ex parte
extension order was not supported by "good cause." 41 Kan. App. 2d at 284. On appeal,
our court noted that, although the extension order contained "a conclusory statement"
indicating it was issued for good cause shown, the appellate record was devoid of any
information that supported this statement. 41 Kan. App. 2d at 285-86. Our court then
explained, "Our Supreme Court and this court have noted that the better practice, if not
the required procedure to request such an extension, is by written motion under Rule 133
(2008 Kan. Ct. R. Annot. 216)." 41 Kan. App. 2d at 285-86. Without a written motion,
our court could not determine "what showing of good cause was made" by Le. 41 Kan.
App. 2d at 286. Consequently, our court found that Le failed to satisfy the condition
precedent to obtaining an extension of time to serve process because she "needed to show
good cause before she obtained the 30-day extension, not when the extension [was] later
challenged." 41 Kan. App. 2d at 287.

Similar to Le, the record does not support Plaintiffs' claim that they submitted their
written motion to the district judge before he signed the ex parte extension order. As a
result, the district court did not err when it granted Defendants' motion to dismiss
Plaintiffs' case as time-barred because Plaintiffs failed to show good cause prior to
obtaining an extension of time.

In addition to the district court's finding that Plaintiffs failed to establish good
cause prior to obtaining the 30-day order of extension, the district court also found that
Plaintiffs were required to show a reasonable and diligent attempt at service prior to
requesting an extension and the Plaintiffs had failed to make this requisite showing. On
appeal, Plaintiffs challenge the district court's additional findings. Given our holding on
the primary issue, however, we decline to address the other grounds found by the district
court to justify its legal conclusion that the extension order was invalid.


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THE SAVINGS PROVISION IN K.S.A. 2015 SUPP. 60-204

Relying upon Fisher v. DeCarvalho, 298 Kan. 482, 483, 314 P.3d 214 (2013),
Plaintiffs assert that despite any "irregularity in form or procedure or any defect in
making service," Defendants were properly served under K.S.A. 2015 Supp. 60-204,
because Defendants were made aware of the lawsuit, communications took place between
the parties, and Defendants were provided with a copy of the petition.

K.S.A. 2015 Supp. 60-204 contains a savings provision, which provides:

"The methods of serving process set out in article 3 of this chapter constitute
sufficient service of process in all civil actions and proceedings, but are alternatives to
and do not restrict different methods specifically provided by law. Substantial compliance
with any method of serving process effects 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 that might affect the party or the
party's status or property."

In other words, service of process shall be deemed valid notwithstanding some
irregularity or omission, if the plaintiff substantially complied with the applicable service
statutes and the defendant was made aware of the pending action or proceeding against
his person, status, or property. K.S.A. 2015 Supp. 60-204. In Fisher, our Supreme Court
clarified that substantial compliance means "''''compliance in respect to the essential
matters necessary to assure every reasonable objective of the statute.'''' [Citation
omitted.]" 298 Kan. at 490.

Plaintiffs did not raise this particular issue below, and, generally, issues asserted
for the first time on appeal are not properly before this court for review. See Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). There are several
exceptions to the general rule that a new legal theory may not be asserted for the first
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time on appeal, and Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41)
requires an appellant to explain why an issue that was not raised below should be
considered. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008),
cert. denied 555 U.S. 1778 (2009) (outlining exceptions). Litigants who fail to comply
with this rule risk a finding that the issue is improperly briefed and will be deemed
waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014)
(cautioning future litigants to comply with Rule); State v. Godfrey, 301 Kan. 1041, 1044,
350 P.3d 1068 (2015) ("We are now sufficiently post-Williams that litigants have no
excuse for noncompliance with Rule 6.02[a][5].").

Plaintiffs neglect to explain why our court should consider the applicability of
K.S.A. 2015 Supp. 60-204 for the first time on appeal. Plaintiffs mention that our
Supreme Court issued its ruling in Fisher "[a]fter the filing of the responses in the district
court on the issue of insufficient service," which suggests a justification for their failure
to raise this issue below. But Fisher was decided on December 13, 2013; therefore,
Plaintiffs could have raised any issues related to Fisher at the motion to dismiss hearing
held on January 16, 2014. In fact, Hawver was obviously aware of Fisher as he attempted
to rely upon this case in another context during the hearing.

Nevertheless, even if Plaintiffs had preserved this issue, their argument fails. The
savings provision set forth in K.S.A. 2015 Supp. 60-204 only operates to validate an
otherwise ineffective attempt at service if the plaintiff substantially complied with one of
the statutory methods of serving process. Fisher, 298 Kan. 482, Syl. ¶ 2. As explained
earlier, Plaintiffs did not make any attempt to serve Defendants prior to the expiration of
the original 90-day period. "K.S.A. 60-204 was not intended to create new methods of
serving process." 298 Kan. at 491. Likewise, a "defendant's fortuitous acquisition of . . .
awareness [of the action] does not affect [the] calculus[;] K.S.A. 60-204's validation must
emanate from the serving party's actions." 298 Kan. at 492.

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For all these reasons, we conclude that the savings provision of K.S.A. 2015 Supp.
60-204 is not applicable in this case.

THE UNIQUE CIRCUMSTANCES DOCTRINE

Alternatively, Plaintiffs urge us to apply the unique circumstances doctrine to
prevent their civil action from being dismissed as time-barred. Although our Supreme
Court has determined that use of the unique circumstances doctrine to exercise
jurisdiction over an untimely appeal is not proper because appellate courts have no
authority to create equitable exceptions to jurisdictional requirements, the court has
determined that the doctrine remains viable to save a cause of action from being
dismissed on statute of limitations grounds. See Woods v. Unified Gov't of Wyandotte
County/KCK, 294 Kan. 292, 298-99, 275 P.3d 46 (2012); Board of Sedgwick County
Comm'rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011); Baeza, 2015
WL 7162332, at *9-10.

Plaintiffs did not raise this issue below. In fact, rather than asking for an
application of the unique circumstances doctrine in the district court, Hawver merely
questioned whether Plaintiffs should be "so severely penalized" for the district judge's
error in granting an extension without making a finding of good cause. Again, issues
asserted for the first time on appeal are not properly before this court for review. See
Wolfe Electric, Inc., 293 Kan. at 403. Plaintiffs neglected to explain why we should
address the applicability of the unique circumstances doctrine for the first time on appeal.
In light of our Supreme Court's directives advising litigants of the ramifications of failing
to explain why an issue that was not raised below should be considered, we decline to
address this issue. See Williams, 298 Kan. at 1085; Godfrey, 301 Kan. at 1044.

Affirmed.