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Lozano v. Alvarez

Supreme Court of Kansas

May 26, 2017

Dario Lozano, Appellant,
v.
Oscar Alvarez and Aracely Alvarez, Appellees.

         SYLLABUS BY THE COURT

         1. The 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 period.

         2. The 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed October 2, 2015.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.

          Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, argued the cause and was on the brief for appellant.

          Andrew M. Stein, of Doll Law Firm, LLC, of Dodge City, argued the cause and was on the brief for appellees.

          OPINION

          Johnson, J.

         Plaintiff, 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.

         Factual and Procedural Overview

         The 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 of prosecution.

         On 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.

         Lozano 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 ...

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