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Moore v. Luther11/30/2001
Appeal from Lyon District Court; JOHN O. SANDERSON, judge.
Affirmed in part, reversed in part, and remanded with directions.
The plaintiffs, Richard and Sandra Moore, appeal the district court's dismissal, with prejudice, of their civil lawsuit against the alleged tortfeasor, Glen Luther. We affirm in part, reverse in part, and remand with instructions to dismiss the lawsuit without prejudice.
This case began rather routinely as an automobile collision case. On March 31, 1997, Sandra Moore sustained personal injuries and the vehicle she co-owned with her husband, Richard, sustained physical damage when she swerved to avoid colliding with the vehicle in which Glen Luther was effecting a U-turn on an interstate highway. Moore unsuccessfully sought recompense from Luther's insurer, State Farm Insurance Company. On March 26, 1999, 5 days prior to the statute of limitations deadline, the Moores filed their lawsuit against Luther. The petition initially named another defendant, but that fact has no bearing on this appeal.
The plaintiffs attempted to serve Luther, who was an Iowa resident, by certified mail, addressed to the residence he had provided at the time of the accident. The return receipt for the summons and petition indicated someone at that address signed for the documents on April 8, 1999, albeit the signature is illegible.
Unbeknown to the plaintiff, Glen Luther had died of unrelated causes on September 5, 1997. A week later, an Iowa court had appointed Luther's widow, Virginia, as executor of his probate estate. The Moores were not given notice of the probate proceedings in Iowa. The estate closed January 30, 1998, and Virginia was discharged as executor. Thus, when plaintiffs' petition was filed, Glen Luther had died and his Iowa probate estate had ceased to exist.
Luther's insurer referred the petition to Bradley Russell, an Overland Park attorney. Despite knowing of Luther's death, Russell entered his appearance and filed an answer on Glen Luther's behalf in May 1999, specifically stating that he and his firm were "Attorneys for Defendant." The answer denied that Luther lived at the address on the service of process and asserted a number of affirmative defenses, including lack of subject matter and personal jurisdiction, lack of capacity to be sued, and insufficient process. Plaintiffs neglected to investigate the basis for the affirmative defenses. Russell perpetuated the charade by serving discovery documents upon the plaintiffs, ostensibly propounded by the deceased defendant.
The plaintiffs first learned of their problem after Russell filed suggestions of death on July 23, 1999. Three days later, Russell moved to dismiss the lawsuit, arguing that Luther was not a proper party and plaintiffs did not (and could not) obtain proper service of process.
Plaintiffs attempted to substitute Virginia Luther, as executor of Glen Luther's estate, pursuant to K.S.A. 60-225. Defense counsel opposed the motion, arguing that Luther's estate was closed. The trial court agreed and denied the substitution. Russell exacerbated the situation by informing the trial court that, pursuant to Kent v. Chase, Special Administrator, 1 Kan. App. 2d 251, 563 P.2d 1103 (1977), the only proper party would be a special administrator appointed by an Iowa probate court. The trial court, apparently unaware that the 1980 amendments to K.S.A. 59-805 (see L. 1980, ch. 166, ยง 5) effectively overruled the Kent case, withheld ruling on the dismissal motion to give plaintiffs an opportunity to obtain an Iowa special administrator.
After the case languished for several months, defense counsel renewed the motion to dismiss. T
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