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Bayless v. Dieckhaus2/18/2005
Affirmed.
Ronald F. Bayless, Jr., appeals from a dismissal granted in favor of Brittany Dieckhaus. On appeal, Bayless argues that the statute of limitations was tolled under K.S.A. 60-517. We disagree with Bayless' argument. The statute of limitations was not tolled under K.S.A. 60-517 because: (1) Bayless, exercising due diligence, should have been able to locate Dieckhaus and (2) Bayless could have effected service of process on Dieckhaus within the statute of limitations period. Because this action was commenced outside the statute of limitations period, the trial court properly dismissed the action. Accordingly, we affirm the trial court's ruling.
The facts of this case are not in dispute. Bayless was injured in a car accident on February 7, 2001, when Dieckhaus ran a stop sign and hit the car that Bayless was driving. At that time, Dieckhaus was residing with her parents at 8828 Candlelight Lane in Lenexa. Dieckhaus began attending Northwest Missouri State University in the fall of 2001. During the school term, Dieckhaus lived in an apartment in Maryville, Missouri. Nevertheless, Dieckhaus lived at her parents' house during breaks, summers, and one weekend a month. Her parents' residence was Dieckhaus' permanent address.
In May 2002, Dieckhaus' family moved to 15228 Woodson in Overland Park. After the move, Dieckhaus' father updated their address with the post office. Dieckhaus changed her license in July 2002 to reflect the new address. Dieckhaus' mother updated their address with their automobile insurance company in May 2002.
Bayless filed suit against Dieckhaus on February 3, 2003, 4 days before the statute of limitations under K.S.A. 2004 Supp. 60-513 had expired. Summons was issued for service at 8828 Candlelight Lane in Lenexa; however, the service was unsuccessful. The sheriff's return from February 7, 2003, contained the following statement: "Subject no longer resides at address given. The Brinkman residence, whereabouts unknown." According to Bayless, he then employed an investigations firm to locate Dieckhaus. Bayless indicated that on March 31, 2003, the investigations firm reported Dieckhaus' address was still at 8828 Candlelight Lane in Lenexa.
An alias summons was issued on June 11, 2003, to be served by certified mail on Dieckhaus at the Candlelight Lane address. The post office returned the certified mail letter with the notation that the forwarding time had expired and there was a new address in the name of Michael J. Dieckhaus at 15228 Woodson in Overland Park.
On June 19, 2003, the letter was then sent to Brittany Dieckhaus by certified mail at the new address but was returned unclaimed. Importantly, the 90-day deadline under K.S.A. 60-203 to serve Dieckhaus had expired on May 3, 2003. Moreover, Bayless failed to request a 30-day extension of the 90-day deadline as provided for under K.S.A. 60-203. The court record indicates that Bayless took no other action on the service of process until November 2003. On November 26, 2003, a special process server accomplished residential service on Dieckhaus by serving her mother at the Woodson address.
After Dieckhaus received the November 2003 service of process, she answered the petition, raising the affirmative defense that Bayless' claims were time barred by the statute of limitations. Dieckhaus then moved to dismiss the case based on the 2-year statute of limitations. The trial court granted the motion, finding that the statute of limitations had run.
On appeal, Bayless argues that the trial court erred in granting Dieckhaus' motion to dismiss based on the statute of limitations. In granting Dieckhaus' motion to dismiss, the trial court cons
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