BY THE COURT
savings statute provisions of K.S.A. 60-518 apply only to an
action that was commenced during the statute of limitations
period and that was dismissed for a reason other than on the
merits after the expiration of the statute of limitations
dismissal of an action that was refiled during K.S.A.
60-518's 6-month grace period does not trigger another
grace period because the refiled case is not an
"action" to which K.S.A. 60-518 applies.
of the judgment of the Court of Appeals in an unpublished
opinion filed October 2, 2015. Appeal from Ford District
Court; Van Z. Hampton, judge. Opinion filed May 26, 2017.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
J. Antosh, of Garcia & Antosh, LLP, of Dodge City, argued
the cause and was on the brief for appellant.
M. Stein, of Doll Law Firm, LLC, of Dodge City, argued the
cause and was on the brief for appellees.
Dario Lozano, filed an intentional tort lawsuit against the
defendants, Oscar and Aracely Alvarez, claiming that they
battered him at a company holiday party. The case was
dismissed for lack of prosecution, refiled, and dismissed
again for lack of prosecution. Lozano filed this third
action, relying once again on K.S.A. 60-518. Ultimately, the
district court dismissed the lawsuit with prejudice and the
Court of Appeals affirmed, holding, inter alia, that
a party may use the Kansas savings statute, K.S.A. 60-518,
only one time to resurrect a case dismissed for a reason
other than upon the merits, when the statute of limitations
for the underlying cause of action has expired. We affirm the
result in this case.
and Procedural Overview
underlying facts are undisputed. On December 4, 2010, Lozano
and the Alvarezes fought during a company-sponsored Christmas
party. Exactly 1 year later, on the last day before the
applicable statute of limitations in K.S.A. 60-514(b) would
run, Lozano filed a civil action against the Alvarezes for
injuries he suffered as a result of the battery. (Lozano
I.) Lozano I was dismissed without prejudice by
the Ford County District Court on August 28, 2012, for lack
February 27, 2013, Lozano refiled his case using the Kansas
savings statute, which allows a case that has been dismissed
for a reason other than the merits to be refiled within 6
months of the dismissal, notwithstanding that the statute of
limitations has expired. (Lozano II.) The district
court dismissed Lozano II without prejudice on
December 31, 2013, once again for a lack of prosecution.
refiled the action on June 18, 2014, attempting to invoke
K.S.A. 60-518 a second time. (Lozano III.) The
Alvarezes moved to dismiss with prejudice, claiming the
savings statute did not permit the refiling. The district
court granted the motion, ruling that Clanton v.
Estivo, 26 Kan.App.2d 340, 988 P.2d 254 (1999), was
controlling and that it prohibited the use of K.S.A. 60-518
more than once.
A timeline of the relevant events is as ...