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Handy v. Reed12/24/2003
e period, the second basis for summary is also well founded."
Contentions of Handy
Handy has timely appealed. He contends (1) the granting of summary judgment was erroneous because there are controverted issues of material facts existing in the case, and (2) he properly relied on the trial court's authority under K.S.A. 60-241(a)(2) to enter the order in Handy I on January 3, 2001, allowing him to refile within a 6-month period, resulting in Handy II being timely commenced, relating back to September 5, 2000, and not being barred by either the statute of limitations or the statute of repose.
Contentions of Dr. Reed
Dr. Reed argues, as he did before the trial court that (1) Handy I was not "commenced" on September 5, 2000, (2) Handy had actual knowledge of the extent and severity of his injuries prior to September 5, 1998, (3) Handy did not commence his action against Dr. Reed within 2 years of the time he admits his injuries were reasonably ascertainable or within 4 years of the occurrence of the act giving rise to his claims, (4) K.S.A. 60-241(a)(1) rather than K.S.A. 60-241(a)(2) applies to Handy's dismissal of Handy I, and (5) even if K.S.A. 60-241(a)(2) applies, the dismissal order was invalid because it affects Dr. Reed's rights despite the fact the court had never acquired jurisdiction over him at the time the order was issued and because the trial court did not have the power or statutory authorization to enter an order overriding and contrary to Kansas statutory law which has been legislatively established.
Standards of Review
The standard of review where summary judgment is granted is well known. The trial court (and appellate court on review) 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. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). However, if the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Ultimately, the issues in this case are controlled by various statutes and their interrelation. Resolving these questions are questions of law over which our appellate review is unlimited. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000). Our rules of statutory construction, like the review of grants of summary judgment, are well known and need not be restated here.
Statutes of Limitations and Repose
Handy's allegations in his petition in regards to the rendering of services by a health care provider and with the statutes of limitation and repose in issue relate directly to the following statutory provision of K.S.A. 60-513 which states: "(a) The following actions shall be brought within two years: . . . (7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract." Additionally, K.S.A. 60-513(c) is directly applicable in this case and states:
"(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise
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