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Morris v. Morris9/1/2000
Appeal from Lyon District Court; JOHN O. SANDERSON, judge.
Affirmed.
In this automobile accident case, Virginia L. Morris appeals the summary dismissal of her claims. The trial court granted summary judgment to Kelly E. Morris (not a relative of Virginia). The court held the statute of limitations had expired as Kelly was not served with process within the statutory time period.
Virginia was injured in an automobile accident in Emporia on July 8, 1996. A lawsuit was filed on July 6, 1998, in Lyon County District Court naming Kelly as defendant.
Service of process was obtained upon Kelly on October 22, 1998, when he picked up the summons at the Finney County Sheriff's office. Kelly filed a motion to dismiss for lack of jurisdiction on the basis that Virginia's claim was barred by the applicable 2-year statute of limitations, K.S.A. 1999 Supp. 60-513(a)(4), due to untimely service of process under K.S.A. 60-203. Kelly also affirmatively pled the statute of limitations as a defense in his answer.
In January 1999, Kelly filed a motion for summary judgment, similarly alleging lack of jurisdiction based on the running of the statute of limitations. In his motion, Kelly asserted that since service was not obtained upon him within 90 days after the filing of the petition, then, by reason of 60-203, the action was deemed to have commenced on October 22, 1998, the date he was served. The trial court granted Virginia's motion for discovery. In her subsequent response to the summary judgment motion, Virginia alleged that the running of the statute of limitations was tolled by reason of K.S.A. 60-517 due to an error by the Ellis County Sheriff's office and also due to Kelly's evading of service of process.
After a hearing, the trial court sustained Kelly's motion for summary judgment. The court found Virginia had failed to sustain her burden of proving facts sufficient to toll the statute of limitations. The court stated Virginia had not proven that Kelly had concealed himself either prior to or after the filing of the petition. The court also found an application of the doctrine of unique circumstances would not have resulted in timely service of process. The court stated there was no material issue of fact and Virginia had failed to commence her action within the 2-year statute of limitation.
Virginia first argues the statute of limitations should be tolled because Kelly absconded or hid himself so that service of process could not be obtained through the exercise of due diligence.
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]" Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
"The interpretation and application of statute of limitations is a question of law for which the court's review is unlimited. [Citation omitted.] Likewise, the court's review of conclu
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