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Underhill v. Thompson

May 25, 2007


Appeal from Sedgwick District Court; BENJAMIN L. BURGESS and ANTHONY J. POWELL, judges.


1. Under K.S.A. 60-212(b)(6), if matters outside the pleading are presented and not excluded by the court, a motion to dismiss will be treated as one for summary judgment.

2. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

3. An appellate court's review of the interpretation of the statute of limitations is a question of law for which the court's review is unlimited.

4. Under K.S.A. 60-513(a)(4), a negligence action must be brought within 2 years.

5. When an action is time barred on its face, it must be dismissed unless the statute of limitations was tolled. The plaintiff has the burden of proving facts sufficient to toll the limitations.

6. Under K.S.A. 60-517, when a cause of action accrues against a person who is out of the state, or a person who has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. Nevertheless, the period of limitation will not be extended as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of Article 3 of the Kansas Code of Civil Procedure.

7. In determining whether a statute of limitations is tolled under K.S.A. 60-517, a court must consider whether plaintiff, in the exercise of due diligence, knew or should have known of defendant's whereabouts, and whether defendant concealed himself.

8. Due diligence requires such a measure of prudence a reasonable person would make in light of the circumstances.

9. The burden of proof on the issue of concealment rests with the plaintiff.

10. The mere inability of a plaintiff to locate a defendant where there has been no attempt by defendant to conceal himself or herself is not sufficient to establish concealment within the meaning of the tolling statute.

11. A violation of K.S.A. 8-248, requiring a driver to update his or her address, does not prove concealment and toll the running of the statue of limitations.

12. Because a defendant must take some affirmative act to conceal himself or herself from service of process, the defendant's version of the facts is often essential for the court in determining whether the defendant has concealed himself or herself from service of process.

13. A party may not invite error and complain of that error on appeal.

The opinion of the court was delivered by: Green, J.



Susan A. Underhill appeals from a judgment of the trial court dismissing her negligence action against John G. Thompson because the action was time barred. Because Underhill did not serve Thompson until after the statute of limitations had run, the trial court properly dismissed her claim. Accordingly, we affirm.

The case arose out of a simple car accident. Thompson rear-ended Underhill on August 20, 2002. According to Thompson, Underhill did not appear injured and left the scene on her own. Thompson gave both Underhill and the officer his correct address: 2520 South Minnesota Street in Wichita.

On July 21, 2004, Underhill filed a negligence action against Thompson. Underhill delayed filing her action because she was undergoing treatment for her injuries and did not know the full extent of her damages.

Two months later, Underhill hired Branda Detective Agency to serve Thompson. Donald Branda, the owner of the agency, discovered Thompson no longer lived on Minnesota Street. He further contacted the utility company, water company, and possible relatives from Augusta, Kansas, but could not find a current address for Thompson. He then searched a State of Kansas employment database and ...

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