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Handy v. Reed12/24/2003
r afforded by the running of the statute of limitations . . . is subject to a large degree of legislative control.'" KPERS, 262 Kan. at 676 (quoting Harding, 250 Kan. at 667).
As we have clearly set forth, the trial court never obtained jurisdiction over Dr. Reed in Handy I. Dr. Reed has been given by the Kansas Legislature the right to be free of claims which have not been timely commenced against him within the time set forth in K.S.A. 60-513. It was improper for the trial court to deny Dr. Reed his statutory rights by a court order in a case in which he was not a party.
The cases as to the necessity of having "jurisdiction over the person" are legion and well summarized in Casad, Jurisdiction and Forum Selection, ยง 4.13, p. 44 (2d ed. 2002), by the following statement:
"The right to be heard is fundamental to our conception of justice. Before the power of the state can be used to deprive a person of life, liberty, or property the person must have an opportunity for a day in court. And before the day in court, the person must receive some notice [i.e., service of process]. . . ."
The trial court's order in Handy I dated January 3, 2001, does not comply with the requirements of K.S.A. 60-203 and K.S.A. 60-518 and does not validly extend the statute of limitations within which Handy had to file a claim against Dr. Reed.
We have considered but completely discounted that the ruling in Peterson v. Garney Constr. Co., 2 Kan. App. 2d 587, 584 P.2d 1269 (1978), requires the trial court to be considered to have the authority to judicially extend the statute of limitations without statutory authority. Peterson differs greatly factually and does not justify granting a trial court authority that does not exist.
The trial court in this case correctly recognized that the power to extend the statute of limitations did not exist for both of the reasons above stated and correctly held that Handy II was not lawfully commenced until July 3, 2001, a time when both the statute of limitations and the statute of repose had run. The trial court correctly granted summary judgment to Dr. Reed in this case.
Had we decided that Handy II was deemed commenced on September 5, 2000, the language of K.S.A. 60-513(c) that if "the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitations shall not commence until the fact of injury becomes reasonably ascertainable to the injured party" would be material in this case.
Dr. Reed appears to have valid arguments that Handy should not only have actually known but also that the facts of his injury were reasonably ascertainable at the time of his appointments with Dr. Frevert on December 10, 1997, and July 23, 1998. However, Handy argues the facts were not known or reasonably ascertainable to him until the first appointment after his September 4, 1998, surgery or November 20, 1998, when Dr. Frevert informed Handy he would never return to his former employment and have limited use of his left arm.
We need make only slight comment on the parties' disagreement over the application of Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), to the facts of our case. We agree with the trial court's conclusion that Jones is factually different because there the opinion of the experts (doctors) were in dispute. Here, it is clear the fact of the injuries were known and told to Handy and from the latest of those times, November 20, 1998, it was more than 2 years before this case was filed.
Therefore, the disputed facts, however resolved, do not present a genuine issue of material fact which precluded the grantin
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