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FENNESY v. LBI MGT.3/5/1993
Deborah Fennesy appeals the dismissal of her claims against Redman Building Products, Inc., d/b/a AlenCo, Inc. An unknown assailant broke into Fennesy's apartment through the apartment's sliding glass door and attacked Fennesy while she was sleeping. Fennesy sued multiple defendants and sought recovery under multiple theories. In a second amended petition, Fennesy named Redman as the manufacturer of the door and alleged her injuries were caused by Redman placing an unreasonably dangerous and defective door into the stream of commerce (count 16), by Redman's negligence in the design, testing, manufacturing, and sale of the door (count 17), and by Redman's representation that the door was "forced entry resistant" (count 18). While not delineated as such, all of the claims alleged by Fennesy are included within a "product liability claim" as defined by K.S.A. 1992 Supp. 60-3302(c).
The district court granted Redman's motion to dismiss, finding Fennesy's claim against Redman was barred by the statute of limitations. The court concluded a two-year statute of limitations
was applicable to Fennesy's claim. In its journal entry of dismissal, the court adopted as its rationale the arguments contained in Redman's memoranda in support of its motion to dismiss. The amended petition which first named Redman was filed after the two-year statute of limitations had run. Redman argued, and the court agreed, that the claim against Redman did not relate back to a timely filed claim against Parker-Hannifin Corporation, f/k/a AlenCo, Inc. The court amended its order of dismissal to include the language required by K.S.A. 1992 Supp. 60-254(b) to certify the judgment for immediate appeal.
Fennesy contends the court erred in dismissing her claim against Redman as untimely filed. She relies on K.S.A. 1992 Supp. 60-203 and K.S.A. 60-215(c) to argue her second amended petition adding Redman, d/b/a AlenCo, Inc., as a defendant relates back to the date of the filing of her first amended petition which named Parker-Hannifin, f/k/a AlenCo, Inc.
Fennesy was injured on October 11, 1988. The original petition is not in the record on appeal, but both parties state it was filed on June 12, 1990. According to Fennesy, the door manufacturer's identity was difficult to ascertain, but eventually she learned the door was manufactured by "AlenCo," a Texas corporation. Fennesy amended her petition on October 9, 1990, to add Parker-Hannifin Corporation, f/k/a AlenCo, Inc., as a party defendant and to include claims against Parker-Hannifin as the alleged door manufacturer. In count 16, Fennesy alleged a claim against "defendant Parker-Hannifin Corporation, f/k/a AlenCo, Inc., (hereinafter referred to as `AlenCo')." After describing the corporate relationship between Parker-Hannifin and AlenCo, Fennesy made reference in counts 16, 17, and 18 only to "AlenCo" when enumerating specific claims concerning the manufacture, design, and marketing of the door. After counts 16, 17 and 18, Fennesy prayed for judgment against AlenCo.
On October 22, 1990, Parker-Hannifin was served with the first amended petition. The two-year statute of limitations had run on October 11, 1990. Pursuant to 60-203(a), the petition filed against Parker-Hannifin was timely because service was obtained within 90 days of filing the petition.
Fennesy later discovered she had named the wrong "AlenCo" and that Redman, d/b/a AlenCo, Inc., was the manufacturer of
the door in question. On December 21, 1990, she served Redman with a summons and a copy of the first amended petition which named Parker-Hannifin, f/k/a AlenCo, Inc. Fennesy's motion seeking the court's permission to file a second amended p
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