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Handy v. Reed12/24/2003
to the cause of action."
Statutes Relating to Commencement of Actions, Dismissal of Actions, and Saving of Actions
The result in this complex case will turn on the wording and construction of the statutes relating to commencement, dismissal, and saving of Handy I and Handy II. We next set forth the applicable provision of these statutes.
K.S.A. 60-203 provides:
"(a) A civil action is commenced at the time of (1) filing a petition with the court, if service of process is obtained or the first publication is made for service of publication within 90 days after the petition is filed, except that the Court may extend that time an additional 30 days upon a showing of good cause by the plaintiff."
(Emphasis added.)
Dr. Reed argues that because he had never been served at the time of the dismissal in Handy I, the provisions of K.S.A. 60-241(a)(1) relating to voluntary dismissal apply, and because the dismissal is to be entered "as a matter of course," the court does not have the power to set terms and conditions upon which such dismissal can be achieved when the dismissal is in effect voluntary.
The facts of our case show the dismissal in Handy I was by order of the court. We set forth here and will ultimately reach our conclusion based on the language of K.S.A. 60-241(a)(2), which states:
"(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice."
Finally, if the refiling of Handy II relates back to the filing of Handy I, it is only because of the authorization of the savings statute, K.S.A. 60-518:
"If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure."
Analysis
We have previously set forth the contentions of both Handy and Dr. Reed. We will respond to those arguments, but we resolve this appeal by answering the following three questions:
1. On what date is Handy II deemed to have been commenced?
ANSWER: July 3, 2001.
2. Was it legally proper for the trial court to judicially extend the statute of limitations beyond that which has been legislatively established?
ANSWER: No.
3. Does a material fact remain to be determined that requires summary judgment in favor of Dr. Reed to be reversed?
ANSWER: No. Even taking the latest date when Handy admits he reasonably ascertained his injury (November 20, 1998), the period of limitations within which to bring his cause of action against Dr. Reed has expired.
Although Handy II was filed on July 3, 2001, and service was obtained on Dr. Reed making this the commencement date of this action, Handy argues the actual commencement date of Handy II must be determined to relate back to September 5, 2000, the date Handy I was filed.
Critical to our analysis of this issue is the fact that Dr. Re
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