In re Care & Treatment of Thomas

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,943
116,221

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
SHAYNE THOMAS.


MEMORANDUM OPINION

Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed April 21, 2017.
Vacated and remanded with directions.

Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, for appellant.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.

Before LEBEN, P.J., PIERRON and BRUNS, JJ.

Per Curiam: The State of Kansas appeals the district court's dismissal with
prejudice of two actions filed against Shayne Thomas under the Kansas Sexually Violent
Predator Act, K.S.A. 59-29a01 et seq. The only issue on appeal is whether the district
court appropriately dismissed these actions with prejudice. For the reasons set forth in
this opinion, we find that the district court erred in dismissing the actions with prejudice.
Accordingly, we vacate both orders of dismissal with prejudice entered by the district
court. Moreover, we direct the district court to enter an order dismissing the 2014 case
without prejudice. Finally, we direct the district court to reinstate the 2015 case so that
the parties may proceed with the resolution of their claims and defenses on the merits.



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FACTS

The material facts are undisputed. In 2006, Thomas was convicted of aggravated
indecent liberties with a child and attempted rape. He was subsequently sentenced to 100
months in prison. Prior to his release from prison in 2014, the State filed a petition in
district court seeking a determination that Thomas is a sexually violent predator and
requesting that he be involuntarily committed to the sexual predator treatment program at
Larned State Hospital.

On June 2, 2014, the district court held a hearing to determine whether there was
probable cause to detain Thomas as a sexually violent predator. The district court, after
considering the evidence and arguments presented, found there was probable cause to
believe that Thomas is a sexually violent predator. Accordingly, the district court ordered
the Butler County Sheriff to transport Thomas to Larned State Hospital for further
evaluation.

Thomas filed a motion for immediate release on the grounds that the Kansas
Sexually Violent Predator Act is unconstitutional. Specifically, Thomas argued that the
State violated his equal protection rights. Thomas also filed two motions to dismiss. The
first motion asserted that he had been declared legally incompetent and was incapable of
giving consent to the mental health examination performed by the health care provider
that had testified at the probable cause hearing. The second motion asserted that the State
had not served his legal guardian with process. A few weeks later, Thomas filed another
motion seeking immediate release.

On August 29, 2014, the district court held a hearing to address the pending
motions. At the hearing, the district court denied Thomas' motions for immediate release.
In addition, the district court denied Thomas' motions to dismiss.

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Thomas filed a petition for writ of habeas corpus with the Kansas Supreme Court
on December 17, 2014, requesting that the district court dismiss the case filed against him
pursuant to the Kansas Sexually Violent Predator Act for lack of service of process. On
August 27, 2015, the Kansas Supreme Court in In re Care & Treatment of Thomas, No.
112,943, issued an order directing the district court to "dismiss the sexually violent
predator action filed against Petitioner because the State failed to obtain valid service of
process." However, the order was silent as to whether the district court should dismiss the
case with or without prejudice. Likewise, the order did not address Thomas' request to
prohibit the State from filing a second petition.

Evidently, the district court was prepared to file an order dismissing the 2014 case
on September 1, 2015. It also appears that the State may have advised the district court
that it would be submitting a few proposed changes to the district court's proposed order
of dismissal. Instead, the State filed a notice of voluntary dismissal and filed a new
petition seeking to commit Thomas to the sexually predator treatment program. The next
day, the district court dismissed both the initial case as well as the new petition with
prejudice.

On September 16, 2015, the State filed a motion for clarification or modification
of order with the Kansas Supreme Court in In re Care & Treatment of Thomas, No.
112,943. Specifically, the State asked whether the order directed the district court to
dismiss the initial action with or without prejudice. The Kansas Supreme Court entered
an order denying the State's motion for clarification or modification without explanation
on October 1, 2015.

Thereafter, the district court denied motions to alter or amend filed by the State in
both cases. The State filed timely notices of appeal in each case. Because they involve the
same parties and issue, we consolidated the cases for the purposes of appeal.

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ANALYSIS

The State contends that the district court erred in dismissing these actions with
prejudice. Our review of a district court's dismissal of an action on jurisdictional grounds
involves a question of law and is unlimited. See Aeroflex Wichita, Inc. v. Filardo, 294
Kan. 258, 270, 275 P.3d 869 (2012); Merriman v. Crompton Corp., 282 Kan. 433, 439,
146 P.3d 162 (2006); 5B Wright & Miller, Federal Practice and Procedure: Civil, §
1351, p. 314 (3d ed. 2004). Nevertheless, Thomas contends that we should review this
case for abuse of discretion. Although we disagree with Thomas' contention regarding the
standard of review, the result would be the same under either standard because a mistake
of law by the district court would also constitute an abuse of discretion. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).

We understand the district court's confusion because the order issued by the
Kansas Supreme Court directing dismissal of the 2014 case did not specify whether the
dismissal should be with or without prejudice. Likewise, the order did not address the
issue of whether the State could file another petition pursuant to the Kansas Sexually
Violent Predator Act against Thomas. In addition, the Kansas Supreme Court denied the
State's motion for clarification or modification of the order without explanation. Thus, we
will attempt to answer this procedural question.

K.S.A. 2016 Supp. 60-241(b)(1) states:

"If the plaintiff fails to prosecute or to comply with this chapter or a court order,
a defendant may move to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this paragraph and any dismissal not under this
section, except one for lack of jurisdiction, improper venue or failure to join a party under
K.S.A. 60-219, and amendments thereto, operates as an adjudication on the merits."
(Emphasis added.)

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Accordingly, an involuntary dismissal is generally an adjudication on the merits.
However, there are several exceptions to this general rule. See In re Care & Treatment of
Johnson, 32 Kan. App. 2d 525, 531, 85 P.3d 1252 (2004) (recognizing as a general
principal that a dismissal for lack of jurisdiction, specifically subject matter jurisdiction,
does not count as an adjudication on the merits); Anderson v. Richard, No. 112,027, 2015
WL 802759, at *4 (Kan. App. 2015) (unpublished opinion) (finding the trial court erred
by dismissing a case with prejudice for failure to join parties). The one that is relevant to
this case involves involuntary dismissals for lack of jurisdiction. Based on the plain
language of the statute, such dismissals do not operate as an adjudication on the merits.

Personal jurisdiction may be only be acquired by the issuance and service of
process in the method prescribed by statute or by a voluntary entry of appearance. See
Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999); Hajda v.
University of Kansas Hosp. Auth., 51 Kan. App. 2d 761, 767, 356 P.3d 1 (2015), rev.
denied 303 Kan. 1077 (2016). Accordingly, a failure to serve process is a jurisdictional
defect. Here, our Supreme Court clearly ordered the district court to dismiss the 2014
case for "[failure] to obtain valid service of process." Thus, the district court should have
considered the dismissal of the 2014 case to be an adjudication not on the merits.

In light of the above analysis, we conclude that the district court should have
dismissed the 2014 case without prejudice. Moreover, because the 2014 case should have
been dismissed without prejudice, the district court also erred in dismissing the 2015
case. As such, we find that the district court should reinstate the 2015 action and permit
the State to attempt to properly obtain service of process if it has not already done so.
Nothing in this opinion should be construed to limit any other defenses that may be
available to Thomas.

In summary, we vacate both orders of dismissal entered by the district court. We
direct the district court to enter an order dismissing the 2014 case without prejudice.
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Furthermore, we direct the district court to reinstate the 2015 case so that the parties may
proceed with the resolution of their claims and defenses on the merits.

Vacated and remanded with directions.