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Fisher v. Decarvalho

Supreme Court of Kansas

December 13, 2013

Melanie A. Fisher, Appellant,
v.
Alex F. Decarvalho, M.D., Appellee

As Amended December 26, 2013.

Page 215

Review of the judgment of the Court of Appeals in 45 Kan.App.2d 1133, 260 P.3d 1218 (2011). Appeal from Ellis District Court; Thomas L. Toepfer, judge.

SYLLABUS

BY THE COURT

1. Pursuant to the return receipt delivery method of service of process, an adult individual defendant who is not disabled may be served by certified mail at his or her business address only if all of the following conditions are met: (1) the plaintiff first attempts to serve the individual by return receipt delivery at the individual's dwelling house or usual place of abode; (2) the plaintiff files a return on service indicating that delivery at the individual's dwelling house or usual place of abode was refused or unclaimed; and (3) the certified mail to the business address must be sent by restricted delivery, meaning that the mail is to be delivered to the addressee only.

2. A plaintiff's substantial compliance with any statutory method of serving process shall effect 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 in which his or her person, status, or property was subject to being affected. K.S.A. 60-204.

3. Substantial compliance with a statute means compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.

4. By requiring that service by return receipt delivery to an individual at a business address be completed by certified mail, restricted delivery, i.e., endorsed " deliver to addressee only," the legislature has signaled that actual delivery to the individual is an essential matter that is necessary to assure the reasonable objective of making the party served aware that an action or proceeding is pending in a specified court in which his or her person, status, or property is subject to being affected.

5. Under K.S.A. 60-303(e), the voluntary appearance by a party is the equivalent of service of process on that party as of the date of the appearance. But an appearance to request an extension of time in which to answer or respond to the petition is not a voluntary appearance that will equate to service of process.

6. If service of process purports to have been made within 90 days of the filing of the petition but that service of process is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have commenced at the time of the filing of the petition if valid service is obtained within 90 days after the adjudication of invalidity of the original service, unless that time is extended an additional 30 days for good cause shown. K.S.A. 60-203(b).

7. When a plaintiff sends a petition and summons to the defendant's business address by certified mail, receives back a signed return receipt, files a return of service with the court, and proceeds with the prosecution of the case on its merits, service of process is purported to have been made within the meaning of K.S.A. 60-203(b). Thereafter, if service of process is adjudicated to be defective for any reason, the provisions of K.S.A. 60-203(b) may be utilized to save the cause of action.

David R. Morantz, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, argued the cause, and Lynn R. Johnson, of the same firm, was with him on the briefs for appellant.

Trevin E. Wray, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Janet M. Simpson, of the same firm, was with him on the brief for appellee.

OPINION

Page 216

[298 Kan. 483] Johnson, J.

Melanie A. Fisher attempted to commence a medical malpractice action against Alex F. DeCarvalho, M.D., by mailing the summons and petition via unrestricted certified mail, sent to the doctor's business address. The doctor actually received the petition and filed an answer that asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, [298 Kan. 484] and a statute of limitations bar. After participating in the discovery process for a time, the doctor filed a motion to dismiss, alleging an absence of personal jurisdiction because Fisher's attempted certified mailing did not comply with the requirements of K.S.A. 60-304(a) to effect a valid service of process. The district court dismissed the lawsuit with prejudice, finding that Fisher had failed to substantially comply with the statutory requirements for service of process by return receipt mail delivery, that the defendant's actual notice of the lawsuit did not confer personal jurisdiction on the district court absent a proper service of process, and that Fisher was not entitled to the additional time to effect service after the adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at service did not appear to be valid, as required by Grimmett v. Burke, 21 Kan.App.2d 638, Syl. ¶ 4, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996). The Court of Appeals affirmed the district court's dismissal in Fisher v. DeCarvalho, 45 Kan.App.2d 1133, 260 P.3d 1218 (2011), and we granted review.

We agree with the results reached below on the issues of substantial compliance and actual notice, but we find that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court's adjudication of invalidity. We reverse and remand with directions for the district court to afford the plaintiff that opportunity.

Factual and Procedural Overview

On October 1, 2007, Dr. DeCarvalho performed an arthroscopic procedure on Fisher's right knee. Unsatisfied with the result, Fisher filed a medical malpractice lawsuit against the doctor 2 years later, on October 1, 2009. Fisher elected to obtain service of process on the defendant by mail, rather than personal service, ostensibly to avoid disrupting the doctor's medical practice. Accordingly, on November 30, 2009, after requesting and receiving a summons from the district court clerk's office, Fisher's counsel mailed the summons and petition to the doctor's medical office by unrestricted [298 Kan. 485] certified mail, i.e., the mail did not direct that delivery was to be made only to the addressee, Dr. DeCarvalho.

On December 14, 2009, Fisher filed a return of service with the district court that included a return receipt on the certified mail reflecting that an individual named Phyllis Bieker had signed for the envelope on December 2, 2009. The return of service did not indicate Bieker's relationship to the defendant or explain why she was authorized to accept service of process on his behalf.

Nevertheless, the defendant does not deny that he had actual notice of the lawsuit, and he filed an answer to the petition on January 4, 2010, after requesting and receiving a 10-day clerk's extension. In his answer, the defendant asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a violation of the statute of limitations. On March 1, 2010, the defendant served Fisher with interrogatories and a request for production of documents. Two days later, the defendant responded to plaintiff's discovery requests.

The following month, on April 26, 2010, the defendant filed a motion to dismiss for lack of personal jurisdiction, arguing that Fisher had failed to effect proper service of process prior to the expiration of the statute of limitations.

Page 217

Specifically, the defendant claimed that the initial attempt at service by certified, unrestricted mail at his place of business was invalid because it did not comply with the requirements for service by return receipt delivery to an individual set forth in K.S.A. 60-304(a).

In response, Fisher argued that the provisions of K.S.A. 60-204 validated the service of process because she had substantially complied with the requirements of K.S.A. 60-304(a). Additionally, she asserted that the defendant had actual knowledge of the lawsuit, as evidenced by his timely answer to the petition and his active participation in the discovery process, which established that the purpose of the service of process had been fulfilled. In the alternative, Fisher contended that even if the district court adjudicated her initial service of process to be invalid, she was entitled to an additional 90 (or 120) days after the invalidity adjudication to effect valid service, as provided in K.S.A. 60-203(b).

[298 Kan. 486] On May 26, 2010, the district court found in favor of the defendant and dismissed the lawsuit with prejudice. En route to that disposition, the district court rejected Fisher's assertion that she had substantially complied with the statutory requirements for mail service and, therefore, the court held that she was not entitled to the validation benefit of K.S.A. 60-204. Further, the district court opined that the defendant's actual notice of the lawsuit was not enough to confer personal jurisdiction upon the court in the absence of a proper statutory service of process. Finally, the district court found that Fisher was not entitled to the additional time to effect service after the court's invalidity adjudication, as specifically provided in K.S.A. 60-203(b), because the initial service of process in this case did not meet Grimmett's requirement of facial validity. See Grimmett, 21 Kan.App.2d at 647-48.

On appeal to the Court of Appeals, Fisher focused on three arguments. First, she continued to argue that her service upon the defendant substantially complied with the statutory method for effecting service of process by return receipt delivery, so that the initial service was statutorily defined as valid under K.S.A. 60-204. Second, for the first time on appeal, Fisher argued that pursuant to K.S.A. 60-303(e), the defendant voluntarily acknowledged service by appearing in the action through his pleadings and discovery. For her third argument, Fisher asserted that even if the initial service was invalid, the plain language of K.S.A. 60-203(b) provided her an additional time--at least 90 days after the court determination of invalidity--to cure the defect(s) through another, valid service of process.

The Court of Appeals affirmed the district court's dismissal with prejudice. First, comparing Fisher's attempted mail service against the specific requirements clearly set forth in K.S.A. 60-304(a), the panel opined that plaintiff's efforts fell well short of this court's definition of " substantial compliance" in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 874, 127 P.3d 319 (2006), so that the attempted service of process could not be deemed valid under K.S.A. 60-204. Fisher, 45 Kan.App.2d at 1147.

Second, the Court of Appeals exercised review over Fisher's argument regarding a voluntary entry of appearance under K.S.A. 60-303(e), [298 Kan. 487] notwithstanding her raising that issue for the first time on appeal. But the panel relied on Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers, 280 Kan. at 875, for the proposition that the filing of a motion for extension of time to answer a petition does not waive an insufficiency of service of process defense. Therefore, because the defendant's other participation in the lawsuit occurred after the action was barred by the statute of limitations, those appearances did not cure the faulty service of process. Fisher, 45 Kan.App.2d at 1148-49.

Finally, the Court of Appeals rejected Fisher's argument that she was entitled to an additional 90 days to effect valid service of process under K.S.A. 60-203(b). 45 Kan.App.2d at 1152-53. Although the panel expressed concern over Grimmett's " judicially created" requirements for the application of K.S.A. ...


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