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Lehman v. The City of Topeka

Court of Appeals of Kansas

April 4, 2014

GWENDOLYN LEHMAN, Appellant,
v.
THE CITY OF TOPEKA, KANSAS, Appellee

Page 868

Appeal from Shawnee District Court; REBECCA W. CROTTY, judge.

SYLLABUS

BY THE COURT

1. A motion to dismiss for failure to state a claim under K.S.A. 2013 Supp. 60-212(b)(6) is treated like a motion for summary judgment under K.S.A. 2013 Supp. 60-212(d) if matters outside the pleadings are presented to and not excluded by the court.

2. The standard of review relating to summary judgment is discussed and applied.

3. When a suit is timely commenced and then dismissed for some reason unrelated to its merit, K.S.A. 60-518 provides that the suit may be refiled within 6 months of the date of dismissal even though the statute of limitations has otherwise expired.

4. As a general rule, issues not raised before the lower court cannot be raised for the first time on appeal.

5. The automatic stay provision found in the federal bankruptcy statutes at 11 U.S.C. § 362(a)(1) (2012) does not extend to third-party defendants or a debtor's solvent codefendants in state court.

Lawrence W. Williamson, Jr., of Williamson Law Firm, LLC, of Kansas City, Missouri, for appellant.

Shelly Starr, chief of litigation, City of Topeka, for appellee.

Before HILL, P.J., STANDRIDGE, J., and LARSON, S.J.

OPINION

Page 869

Standridge, J.:

Gwendolyn Lehman appeals the district court's decision to dismiss her negligence action against the City of Topeka (the City), arguing the court erred in applying the Kansas saving statute, K.S.A. 60-518, in a manner that failed to save her action [50 Kan.App.2d 116] filed outside the applicable statute of limitations. Lehman contends the statute of limitations was tolled because (1) she never received notice of the dismissal of the previous case and (2) the automatic stay ...


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