Wilson v. Larned State Hospital

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NOT DESIGNATED FOR PUBLICATION

No. 112,193

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

POLLY WILSON, et al.,
Appellants,

v.

LARNED STATE HOSPITAL, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed March 18, 2016.
Reversed and remanded with directions.

Caleb Boone, of Hays, for appellants.

Kimberly M.J. Lynch, special assistant attorney general, of Kansas Department for Aging and
Disability Services, of Topeka, for appellees Larned State Hospital, Secretary of KDADS, Superintendent
of Larned State Hospital, Holly Hertel, and Karen Brown Soden.

Ronald D. Smith, of Smith & Burnett, L.L.C., of Larned, for appellee Jasenthu L. Fernando, M.D.

Gregory S. Young and Brian L. White, of Hinkle Law Firm, L.L.C., of Wichita, for appellee
Nurul Hoque, M.D.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

Per Curiam: The Ellis County District Court dismissed this medical malpractice
action with prejudice because the plaintiffs' amended petition failed to list in the caption
all of the defendants identified in the body of the pleading. Whether we review the ruling
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for legal error or for an abuse of discretion, the district court was wrong. We, therefore,
reverse and remand with directions that the action be reinstated.

This case arises from apparently tragic circumstances. Dustan Wilson was
admitted and treated at Larned State Hospital for mental illness. Shortly after he was
discharged from the hospital, he committed suicide. He was 28 years old. Because the
district court dismissed the action before any discovery had been done, we really know
little else about the underlying facts. We have before us a question of civil procedure and
that's all. Our discussion on that issue should not be taken to suggest anything about the
merits of the claim. The obvious tragedy lies in the grief of a family having to say
goodbye too soon to a young adult.

Polly Wilson, Dustan's mother, filed a petition on behalf of her son's estate and as
the legal representative of his minor daughter alleging various physicians and other
healthcare providers negligently treated and released Dustan proximately causing his
death. The petition was filed with the Clerk of the Ellis County District Court by fax on
May 14, 2013, literally minutes before the statute of limitations arguably would have run.
The body of the petition identified more than 20 defendants, but the caption listed only
three—the hospital itself, the superintendent of the hospital, and the Secretary of the
Kansas Department of Social and Rehabilitation Services. Before any of the defendants
filed responsive pleadings or motions, Wilson filed an amended petition. The amended
petition listed the hospital, its superintendent, and the Secretary of the Kansas
Department of Aging and Disability Services in the caption and identified more than 20
defendants in the text.

As we understand the record, Wilson successfully served only some of the
defendants with process. Various defendants filed either answers or motions to dismiss.
The defendants named in the caption argued they were not proper parties or lacked the
capacity to be sued and should be dismissed. Several defendants suggested the amended
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petition should be dismissed because most of the defendants were not listed in the
caption. The district court held a hearing on the defense motions on December 4, 2013,
and instructed Wilson to file a motion to amend adding the State of Kansas as a party if
she wished to proceed under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., since
the State operates the hospital. The district court continued the hearing so Wilson could
respond to a brief some of the defendants had filed that day.

On January 10, 2014, Wilson filed a motion to amend that set out various changes
she intended to make in what would be a second amended petition. The changes did not
expressly include naming all of the defendants in the caption. Wilson did not include a
copy of the proposed second amended petition with her motion, contrary to the customary
practice. The statute outlining the procedure for amending pleadings does not require a
copy of the proposed pleading be submitted with a motion to amend. See K.S.A. 2015
Supp. 60-215. We are aware of no court rule imposing such a requirement on the parties
in this case.

On April 23, 2014, the district court entered a seven-page memorandum decision
dismissing this case because Wilson had not filed a petition listing all of the identified
defendants in the caption. The district court had never ruled on Wilson's motion for leave
to file a second amended petition. Wilson has timely appealed the district court's
decision.

The district court relied principally on K.S.A. 2015 Supp. 60-210(a) in dismissing
Wilson's suit. The statute states:

"Every pleading must have a caption with the court's name, a title, a file number
and a designation as in subsection (a) of K.S.A. 60-207, and amendments thereto. The
title of the petition must name all the parties; the title of other pleadings, after naming the
first party on each side, may refer generally to other parties."
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Although the memorandum decision does not say the dismissal is with prejudice, we
believe that it necessarily was. See K.S.A. 2015 Supp. 60-241(b)(1) (if defendant moves
to dismiss because plaintiff "fails . . . to comply with this chapter[,]" court-ordered
dismissal with prejudice unless order states otherwise). Accordingly, the plaintiffs may
not refile their claims and face an insuperable legal bar to having them decided on the
merits.

The issue on appeal arguably turns on the proper interpretation of K.S.A. 2015
Supp. 60-210(a) and, thus, presents a question of law over which we exercise unlimited
review without deference to the district court. See State v. Turner, 293 Kan. 1085, 1086,
272 P.3d 19 (2012); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). But district
courts exercise considerable latitude in managing cases and dockets, so this decision to
dismiss is arguably a discretionary call that we would review for abuse of discretion. See
Holt v. State, 290 Kan. 491, 497-98, 232 P.3d 848 (2010) (recognizing inherent authority
to control docket); Harsch v. Miller, 288 Kan. 280, 288, 200 P.3d 467 (2009)
(recognizing authority to manage case). A district court abuses its discretion by ruling in
a way no reasonable judicial officer would under the circumstances, if it ignores
controlling facts or relies on unproven factual representations, or if it acts outside the
legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013); State
v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012). Here, however, the labeling of the standard may have more academic than
practical significance. Any abuse of discretion would rest on the district court's
misapplication of the proper legal framework—an error that often overlaps with a pure
mistake of law, as it would regarding the construction of K.S.A. 2015 Supp. 60-210.

The district court's ruling is at cross-purposes with the fundamental goal of the
civil justice process in security resolution of disputes on their merits. See Jenkins v.
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Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978) ("[A] court should resolve any doubt in
favor of the motion [to set aside a default judgment] so that cases may be decided on their
merits."); Sharp v. Sharp, 196 Kan. 38, 41-42, 409 P.2d 1019 (1966) ("The law favors
trial of causes upon the merits and looks with disfavor upon default judgments.");
McDaniel v. Southwestern Bell, Inc., 45 Kan. App. 2d 805, 809, 256 P.3d 872 (2011),
rev. denied 293 Kan. 1107 (2012) ("It is the long-standing policy of our courts that the
law favors the determination of disputed claims on the merits."). Absent substantial
prejudice to a party, the courts are reluctant to impose judgment in that party's favor
because of an opposing party's initial failure to comply with a procedural rule, since that
ignores the merits of the underlying legal dispute. Here, none of the defendants could
claim material prejudice from the way they have been identified in the petition or the
amended petition. Although most of them have been omitted from the captions of the
petitions, they have been plainly identified in the body of the pleadings as defendants.

The Kansas Code of Civil Procedure contemplates a preference for adjudicating
cases on their merits rather than technicalities. See K.S.A. 2015 Supp. 60-102 (code
should be "liberally construed . . . to secure the just, speedy and inexpensive
determination of every action and proceeding"); K.S.A. 2015 Supp. 60-208(e)
("Pleadings must be construed so as to do justice."); K.S.A. 2015 Supp. 60-261 ("At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."). Although we have not found a factually
comparable case, the Kansas Supreme Court has consistently declined to construe
pleadings to impose outcome determinative consequences on parties for technical
irregularities. See Baska v. Scherzer, 283 Kan. 750, 755, 156 P.3d 617 (2007) (noting
"[t]he law of this state is realistic. Substance prevails over form," when finding the
plaintiff intended to bring an action for assault and battery rather than negligence.); Gibbs
v. Mikesell, 183 Kan. 123, 133, 325 P.2d 359 (1958) ("[T]he function of a petition is to
advise the defendant precisely what plaintiff claims against him." In construction of
petition for purpose of determining its effect, allegations must be liberally construed with
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a view to substantial justice between the parties.); Hastie v. Burrage, 69 Kan. 560, 561-
62, 77 Pac. 268 (1904) (omission of name of court and county from caption of petition
deemed correctable defect; "[t]he defendants could in no way have been misled or
prejudiced by the omission," since the information was included in the summons).

This court has fashioned a three-part test to determine whether a district court has
properly dismissed a case without prejudice because of the plaintiff's failure to timely
prosecute the action. Fischer v. Roberge, 34 Kan. App. 2d 312, 315, 120 P.3d 796
(2005); Namelo v. Broyles, 33 Kan. App. 2d 349, 356-57, 103 P.3d 486 (2004), rev.
denied 279 Kan. 1007 (2005). The test offers guidance by way of analogy in that the
grounds for dismissing a case with prejudice ought to be at least as stringent as those for
dismissing without prejudice, thereby allowing a plaintiff to refile the case. In dismissing
for a failure to prosecute, this court considers: (1) prejudice to the opposing party from
the failure; (2) interference with the judicial process; and (3) the culpability of the
litigant. Fischer, 34 Kan. App. 2d at 315; Namelo, 33 Kan. App. 2d at 355-56.

Those considerations weigh heavily against the district court's ruling. As we have
said, the defendants have not been prejudiced in their ability to argue their cause on the
merits because only a few of them have been named in the caption of the pleadings. The
first factor cuts against dismissal. The third factor, addressing culpability of the litigant,
bears on fault that may be attributed either to Polly Wilson in her capacity as the legal
representative for the two plaintiffs—Dustan's estate and his surviving minor daughter—
or to her lawyer. Nothing in the record suggests Polly Wilson bears any direct
responsibility for her lawyer's foul-ups. But the lawyer's inability or unwillingness to
name all of the defendants in the caption of the pleadings seems inexplicable. There is
nothing confusing or complicated about the requirement in K.S.A. 2015 Supp. 60-210(a).
It sets forth an elementary principle of civil procedure. Even if there were no statute,
common sense suggests all of the parties ought to be named in the caption of the pleading
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initiating a civil action. This consideration is mixed in the sense Wilson is not at fault but
her lawyer has failed to comply with a basic rule.

As to the remaining factor, there hasn't been significant interference with the
judicial process to this point. While the lawyer's failure to file a petition or amended
petition conforming to K.S.A. 2015 Supp. 60-210 may be disquieting on some level, it
hasn't stymied the overall progress of the litigation. Moreover, the district court never
entered an order specifically directing Wilson to file a petition complying with K.S.A.
2015 Supp. 60-210. We presume that sort of directive might have been part of an order
granting Wilson's motion to file a second amended petition that remained pending when
the district court dismissed the case. The failure to comply with such an order would have
warranted sanctions that arguably include a monetary penalty on Wilson's lawyer,
dismissal of the case, or both. See In re Marriage of Wilson, 43 Kan. App. 2d 258, 266,
223 P.3d 815 (2010); Knutson Mortgage Corp. v. Coleman, 24 Kan. App. 2d 650, 652-
53, 951 P.2d 548 (1997); Patterson v. Allstate Ins. Co., No. 92,697, 2005 WL 1661485,
at *2 (Kan. App. 2005) (unpublished opinion) ("The draconian sanction of dismissal with
prejudice is justified by a party's wilful and intentional disobedience of a direct court
order."). Here, Wilson flouted no court order. The parties were able to proceed with the
litigation despite the absence of some of the defendants from the captions on the
petitions.

Taking account of all of the circumstances, we find insufficient legal bases for the
district court to have entered an order dismissing Wilson's action with prejudice because
some of the defendants were not named in the caption of the petition or the amended
petition. The decision went outside the appropriate legal framework under which a
district court could dismiss a civil case with prejudice for failure to comply with a
procedural rule.

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We recognize that K.S.A. 2015 Supp. 60-210(a) is written as a mandatory
requirement. The statute, however, imposes no sanction or penalty for a failure to
comply, unlike, for example, K.S.A. 2015 Supp. 60-237(b)(2) that permits a district court
to strike a party's pleadings for disregarding a discovery order. Although K.S.A. 2015
Supp. 60-210(a) exists, in part, to give fair notice to defendants, we question whether that
is even the primary purpose. We expect most people served with process would examine
the summons and the attached petition in some detail. If the body of the petition
identified them as defendants and recited some purported wrongdoing on their part, we
doubt they would forgo responding or seeking legal advice because they hadn't been
listed in the caption. Moreover, the summons itself informs the recipient he or she is a
defendant in a legal action and sets out the deadline for responding. See Hastie, 69 Kan.
at 561-62.

We think the statutory requirement more likely is primarily for the benefit of
outsiders to the litigation. For example, court clerks need not wade through petitions to
pick out defendants if the parties are named in the captions. That facilitates the
compilation of litigation indexes, among other things. Likewise, someone trying to
determine if a particular person or entity has been sued need look only at the caption of a
petition to confirm as much. Those inquiries may be pertinent to title searches, credit
checks, or similar investigations.

Ultimately, a plaintiff ought to be required to comply with K.S.A. 2015 Supp. 60-
210(a) to serve the interests the legislature intended to protect. But absent either
substantial prejudice to an opposing party from the failure or defiance of a direct court
order for compliance, dismissal of defendants omitted from the caption is too harsh a
sanction. And even then a district court ought to consider alternative penalties to compel
compliance.

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Finally, we recognize an entirely different and, perhaps, more prosaic reason the
district court could not have ordered dismissal of the amended petition for failure to
comply with K.S.A. 2015 Supp. 60-210(a). The statute requires the defendants to be
named in the caption of a petition. Here, there were defendants named in the caption of
the petition and the amended petition—just not all of them. We fail to see how a petition
with defendants named in the caption can be dismissed for failing to name defendants in
the caption.

The district court did not simply dismiss from the action those defendants left off
the caption; it dismissed the action. While the defendants named in the caption had
asserted various defenses, such as lack of capacity and failure to state a proper claim, the
district court neither ruled on those defenses nor dismissed the defendants on those
grounds.

Accordingly, we find the district court either misapplied K.S.A. 2015 Supp. 60-
210(a) as a matter of law or abused its discretion in applying an off-kilter legal
framework to dismiss Wilson's amended petition. We, therefore, reverse the district
court's order dismissing the amended petition and remand with directions that the district
court reinstate the action and otherwise proceed in a manner consistent with this decision.

The district court entered a separate order dismissing Dr. Jasenthu L. Fernando as
a defendant. Wilson has not challenged that order on appeal. So the dismissal of Dr.
Fernando is unaffected by our decision. But on remand, Wilson's request to amend to add
Dr. Wineetha Fernando, Jasenthu's wife, as a defendant entails unresolved issues.

Reversed and remanded with directions.


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* * *
BUSER J., dissenting: I dissent from the majority's judgment.

At the outset, I agree with three important findings made by my colleagues. First, I
agree that "K.S.A. 2015 Supp. 60-210(a) is written as a mandatory requirement." That
compulsory obligation requires that the "title of the petition must name all the parties."
(Emphasis added.) Slip op. at 7. K.S.A. 2015 Supp. 60-210(a). Second, I concur with the
majority's view that "a plaintiff ought to be required to comply with K.S.A. 2015 Supp.
60-210(a) to serve the interests the legislature intended to protect." Slip op. at 8. Third, I
agree with my colleagues that, in this case, counsel for the plaintiffs' "inability or
unwillingness to name all of the defendants in the caption of the pleadings seems
inexplicable. There is nothing confusing or complicated about the requirement in K.S.A.
2015 Supp. 60-210(a). It sets forth an elementary principle of civil procedure. . . .
[C]ommon sense suggests all of the parties ought to be named in the caption of the
pleading initiating a civil action. . . . [Wilson's] lawyer has failed to comply with a basic
rule." Slip op. at 6.

Given Wilson's baffling failure to comply with the mandatory requirement of
K.S.A. 2015 Supp. 60-210(a), what is the appropriate remedy? My colleagues suggest
that dismissal of the petition was "too harsh a sanction." Slip op. at 8. I disagree.
Inattention to the Kansas Code of Civil Procedure by Wilson's counsel has caused this
litigation to be long and difficult. In this context, given Wilson's counsel's repeated
failure to rectify the inadequacies of the amended petition, I am unable to find that he has
shown the district court's remedy was an abuse of discretion. See Northern Natural Gas
Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.
Ct. 162 (2013). (The party asserting the district court abused its discretion bears the
burden of showing an abuse of discretion.).

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Wilson's counsel filed this lawsuit on May 14, 2013, only minutes before the
expiration of the statute of limitations. Only 3 defendants were listed in the caption, but
23 defendants were named throughout the body of the 7 page petition. The three
defendants listed in the caption of the petition were "Larned State Hospital; Kansas
Secretary of SRS; and Superintendent or Director of Larned State Hospital, et al." Almost
3 months later, on August 9, 2013, Wilson's counsel filed an amended petition which
deleted "Kansas Secretary of SRS" and substituted "Kansas Secretary of Aging and
Disability Services" as a party defendant in the caption. With this amended filing, 25
defendants were now named throughout the petition, yet only 3 were listed in the caption.
Notably, of the 25 individuals named as defendants, Wilson's counsel only issued
summonses on 6 defendants.

On September 30, 2013, the defendants filed a motion to dismiss citing, among
other grounds, that Wilson's counsel had failed to name the individual defendants in the
caption of the petition in violation of K.S.A. 2015 Supp. 60-210(a). Oral arguments were
heard on the motions to dismiss and the district court took the motions under advisement.

Over 3 months later, on January 10, 2014, Wilson's counsel filed a motion to
amend the petition. Of particular importance, the motion sought to substitute the State of
Kansas for certain defendants named in the body of the petition. This motion was filed
because, as Wilson's counsel concedes on appeal "[t]he State of Kansas should have been
named as a [d]efendant in the caption of the original [p]etition. The [p]etition simply and
clearly (albeit legally erroneously, due to statutory immunity) stated that the Larned State
Hospital and State of Kansas Larned State Hospital employees were being sued."

However, as of the date of the district court's decision dismissing the petition,
April 23, 2014, according to the district court: "In the original complaint, amended
complaint, and in plaintiff's motion to amend the complaint, plaintiff never seeks
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permission to amend the caption to name either the State of Kansas or any of the
individuals referenced in the body of the complaint." (Emphasis added.)

In summary—during almost 1 year of litigation—from May 14, 2013, (the date the
original petition was filed) until April 23, 2014, (the date the amended petition was
dismissed), Wilson never sought to amend the petition to add the names of the individual
defendants or the putative proper party, State of Kansas, to the case caption. On appeal,
Wilson characterizes the failure to identify the State of Kansas in the caption of the
petition as a "minor defect in the [p]leadings." Yet, nowhere in his briefing has Wilson's
counsel provided any explanation regarding why this omission occurred or why it was
not timely rectified.

Moreover, Wilson's counsel's inattention to Kansas civil procedure was further
exemplified by his concession in the district court that the three defendants actually
identified in the case caption were not even subject to being sued in this matter under
Kansas law. In fact, during oral arguments before the Court of Appeals on January 16,
2016, Wilson's counsel reiterated that the three governmental entities erroneously listed
as defendants in the caption of the petition were, as of that date, still improperly named as
defendants in the caption of the petition. Once again, on appeal, Wilson's counsel has
failed to offer any reason or good cause for this serious pleading error or his failure to
promptly correct it.

Simply stated, over 2 1/2 years since this litigation began, not only had the
multitude of defendants mentioned in the body of the petition not been named in the
caption of the petition, as mandated by K.S.A. 2015 Supp. 60-210(a), the three
defendants Wilson's counsel identified in the caption were erroneously named as the
defendants who allegedly committed "psychiatric malpractice or medical negligence"
resulting in the death of Dustan Wilson.

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Given the careless and error-prone actions and omissions by Wilson's counsel
throughout this lengthy litigation, the district court did not err in finding:

"This court has been left with a most difficult task in reaching a decision on the
motions to dismiss. This court understands that pleadings should be liberally construed to
allow plaintiff the opportunity to pursue a cause of action and receive her day in court. In
addition, honest mistakes in the drafting of pleadings should be allowed correction in the
interests of justice. However, the Rules of Civil Procedure were adopted with certain
purposes in mind, not the least of which is to make sure that litigation proceeds in an
orderly fashion. Essential to that purpose is that parties have the right to know that they
have been sued so that they can make appropriate arrangements to defend themselves
from the claims.
"In this litigation, that purpose has been frustrated by the actions of the
plaintiff. . . . .
"The plaintiff in this case initially chose to name three defendants in the caption,
In oral argument, plaintiff conceded that the three named defendants in the caption were
not subject to being sued under Kansas law. In the amended petition filed prior to any
answers by defendants, plaintiff named the same three defendants. In response to
defendants' motions to dismiss, plaintiff filed a motion to amend the pleadings but again
did not request permission to amend the caption to name the proper defendants. The court
can only conclude that plaintiff has intentionally decided to ignore the mandatory
language of 60-210(a) and 60-207."

In summary, given the haphazard handling of this lawsuit by Wilson's counsel, I
would find the district court's dismissal of the petition was well within its judicial
discretion. In particular, I would conclude this judicial action was not arbitrary, fanciful,
or unreasonable; based on an error of law; or based on an error of fact. Northern Natural
Gas Co., 296 Kan. at 935.