323 P.3d 867
Kan. Ct. App.2014Background
- Lehman appeals district court dismissal of her negligence action against the City of Topeka.
- Case No. 10-C-1150 (Aug. 16, 2010) was dismissed for lack of prosecution after Miller Paving’s bankruptcy stayed Miller’s involvement.
- Lehman then filed Case No. 12-C-555 (May 16, 2012) naming only the City.
- City moved to dismiss under K.S.A. 60-518 saving statute; district court held 60-518 did not save Lehman’s second suit since it was filed >6 months after dismissal.
- Lehman argued (i) no notice of dismissal; (ii) Miller’s bankruptcy stay stayed the entire case; the court did not reach these arguments on preserved issues and affirmed dismissal.
- Court held: saving statute did not apply; Miller’s automatic stay did not extend to the City; thus case properly dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 60-518 save Lehman’s second suit? | Lehman argues the saving statute tolls time. | City argues second suit filed after 6 months from dismissal. | No; 60-518 not applicable; second suit filed beyond 6 months. |
| Was Lehman’s dismissal notice issue preserved? | Lehman contends lack of notice voided dismissal. | City contends issue not preserved for review. | Not addressed on appeal due to lack of preservation. |
| Did Miller’s bankruptcy stay extend to all defendants? | Stay applied to entire case, including City. | Stay confined to Miller, not co-defendants. | Stay extended only to Miller; did not toll or stay City’s claims. |
Key Cases Cited
- Seaboard Corp. v. Marsh, Inc., 284 P.3d 314 (Kan. 2012) (explains the saving statute purpose and grace period)
- Davidson v. Denning, 914 P.2d 936 (Kan. 1996) (summaries summary-judgment standard under de novo review)
- Admire Bank & Trust v. City of Emporia, 829 P.2d 578 (Kan. 1992) (treats dismissal as summary-judgment-like when outside pleadings considered)
- In re Sprint Corp. Securities Litigation, 232 F. Supp. 2d 1193 (D. Kan. 2002) (stay not extended to codefendants; debtor-focused stay)
- Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (10th Cir. 1984) (stay extension limited to debtor in bankruptcy contexts)
- A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994 (4th Cir.) (narrow exception permitting stay against codefendants in unusual circumstances)
- Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir. 1983) (supported reasoning that stay applies to debtor rather than co-defendants)