Lozano v. Alvarez
113060
| Kan. | May 26, 2017Background
- Dec. 4, 2010: Lozano alleges he was battered by the Alvarezes at a company party. Statute of limitations (K.S.A. 60-514(b)) would expire Dec. 5, 2011.
- Dec. 5, 2011: Lozano files the original action (Lozano I) one day before limitations run.
- Aug. 28, 2012: Lozano I dismissed without prejudice for lack of prosecution.
- Feb. 27, 2013: Lozano refiles using K.S.A. 60-518 (Lozano II); that dismissal-based 6-month grace period expired Feb. 28, 2013.
- Dec. 31, 2013: Lozano II dismissed without prejudice for lack of prosecution.
- June 18, 2014: Lozano files a third suit (Lozano III) claiming another K.S.A. 60-518 toll; district court dismissed with prejudice and Court of Appeals affirmed; Kansas Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether K.S.A. 60-518 may be invoked serially to refile after successive dismissals | Lozano: statute’s plain language refers to "any action," so each refiled case that meets the three statutory triggers can invoke a new 6-month grace period | Alvarezes: savings statute provides only one post-expiration grace period tied to the original timely-filed action; serial refiling would unlawfully extend limitations | Court: K.S.A. 60-518 provides one 6-month grace period following dismissal of the original action filed "within due time;" refiling that was itself filed after limitations cannot trigger another grace period |
| Whether a refiled action that itself was filed after limitations can qualify as an "action commenced within due time" under K.S.A. 60-518 | Lozano: a refiled action commenced within the prior 6-month window qualifies as "any action" under the statute | Alvarezes: an action must have been commenced within the statute of limitations (i.e., "within due time") to be the triggering original action | Court: only actions commenced within the limitations period qualify; a refile filed after limitations is not an "action" to which §60-518 applies |
Key Cases Cited
- Denton v. Atchison, 76 Kan. 89 (1907) (refuses serial refiling; savings statute grants one grace period following an originally timely action)
- Clanton v. Estivo, 26 Kan. App. 2d 340 (1999) (Court of Appeals held the savings statute could not be used more than once)
- Seaton v. Hixon, 35 Kan. 663 (1886) (interprets "within due time" to mean within the statute of limitations)
- Roy v. Young, 278 Kan. 244 (2004) (explains that §60-518 tolls the limitations period under certain circumstances to allow adjudication on the merits)