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Lambert v. Peterson

Supreme Court of Kansas

April 19, 2019

Jaylene Lambert, Individually, and as Administrator of the Estate of Stan Novak, Appellants,
v.
John E. Peterson, M.D., Burrel C. Gaddy Jr., M.D., Ahmed Baig, M.D., Jeffrey Bissing, D.O., Christopher Welch, P.A., Erik Westlake, C.R.N.A., Michael Manalo, M.D., Ken Norton, M.D., Healthsouth MidAmerica Rehabilitation Hospital, Shawnee Mission Medical Center, and Mary Burch, Ph.D., Appellees.

         SYLLABUS

         A party responding to a motion to dismiss filed under K.S.A. 2018 Supp. 60-212 may respond with information outside the pleadings. But the responding party must then comply with the procedural requirements relating to summary judgment motions under K.S.A. 2018 Supp. 60-256. The responding party may not rely merely on allegations but must state specific facts and support those facts with citations to affidavits, declarations, or other materials allowed in the statute, rules, and caselaw relating to summary judgment procedure.

          Appeal from Wyandotte District Court; Robert P. Burns, judge.

          Jean Ann Uvodich, of Olathe, argued the cause and was on the brief for appellant.

          Jeff K. Brown, of Logan Logan & Watson, L.C., of Prairie Village, argued the cause and was on the brief for appellees Erik Westlake, Michael Manalo, and Ken Norton.

          Brent G. Wright and Justin Fowler, of Horn Aylward & Bandy, L.L.C., of Kansas City, Missouri, were on the brief for appellee Ahmed Baig.

          Christopher J. Lucas and Bruce Keplinger, of Norris & Keplinger, L.L.C., of Overland Park, were on the brief for appellee Shawnee Mission Medical Center.

          Stephanie A. Preut and Brian J. Niceswanger, of Evans & Dixon, L.L.C., of Overland Park, were on the brief for appellee John E. Peterson.

          Casey L. Walker and Janet M. Simpson, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park, were on the brief for appellees Burrel C. Gaddy Jr. and Christopher Welch.

          OPINION

          LUCKERT, J.

         Jaylene Lambert, individually and as administrator of the estate of Stan Novak, asks us to reverse a district court order granting the defendants' motions to dismiss. The district court found her petition was filed one day after the statute of limitations had expired. She argues the statute of limitations does not act as a bar because her attorney electronically submitted her petition for filing before the statute of limitations ran and promptly responded when the clerk returned it because of an electronic filing issue. She asks us to determine whether a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system or when the clerk of the district court accepts and file stamps it.

         We cannot reach the substance of Lambert's argument, however, because no evidence in the record supports Lambert's factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk. And without this evidence there is no factual support for her argument. She has thus failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings. See K.S.A. 2018 Supp. 60-212(d); K.S.A. 2018 Supp. 60-256.

         Facts and Procedural History

         Novak died on June 22, 2014. Lambert filed her petition on June 23, 2016, according to the file stamp placed on Lambert's petition by the Wyandotte District Court Clerk. The defendants were medical providers and facilities Lambert alleged committed ...


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