Jaylene Lambert, Individually, and as Administrator of the Estate of Stan Novak, Appellants,
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.
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.
from Wyandotte District Court; Robert P. Burns, judge.
Ann Uvodich, of Olathe, argued the cause and was on the brief
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.
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.
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.
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.
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.
and Procedural History
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 ...