The Estate of Melvin Norris, By and Through Its Duly Appointed Administrator, Lorie L. Norris, Appellant, v. Mandy Hastings, Appellee, 36 Kan. App. 2d 479

Rulon, C.J.: Plaintiff Melvin Norris appeals the district court’s decision granting defendant Mandy Hastings’

summary judgment motion, finding that plaintiff s claim was barred by the statute of limitations because valid service was not timely obtained. We affirm. Underlying Procedural Facts The underlying claim involves a personal injuiy suit stemming from an automobile collision on April 27, 2000, between plaintiff and defendant. The accident report indicated that defendant’s address was 1531 Eastland Drive, Hutchinson, Kansas, which was the address listed on defendant’s driver’s license at the time of the incident.

On March 22, 2002, plaintiff filed suit against defendant and requested a summons be issued serving defendant at 1531 Eastland Drive, Hutchinson, Kansas. On March 28, 2002, a copy of tire summons and petition was left at the above address by the sheriff s office. Additionally, on April 11, 2002, a notice of service was mailed to the same address stating a copy of the summons and petition had been left at that address. However, defendant and her family no longer lived at that address on March 22, 2002. The current tenants gave the petition and summons to defendant’s mother.

Defendant’s mother called, informed defendant of the lawsuit, and mailed the petition and summons to defendant in Arizona. On April 17, 2002, defendant filed an answer denying she lived in Reno County, Kansas. Defendant’s answer specifically raised the affirmative defenses of insufficient process and insufficiency of service of process. On April 11, 2003, defendant moved for

summary judgment under K.S.A. 60-203(

a) on the grounds plaintiffs suit was barred by the statute of limitations because plaintiff had failed to serve defendant within 90 days of filing the petition. Plaintiff filed a response requesting the district court stay plaintiffs motion and

schedule a hearing on the issue of the sufficiency of the service of process. On November 10, 2003, the district court found plaintiff s initial service on defendant was invalid and defective. Defendant renewed her

summary judgment motion. On November 1, 2004, tire district court filed a memorandum decision adopting defendant’s proposed findings and conclusions in total and granting defendant

summary judgment. The court found plaintiff s action did not commence until after the expiration of the statute of limitations because plaintiff failed to properly serve defendant within 90 days of filing tíre petition. The court further found K.S.A. 60-203(

b) did not apply to correct the deficiency of service. Application of K.S.A. 60-203(

b) On appeal, plaintiff challenges the district court’s decision to grant defendant’s

summary judgment motion. The parties agree there is no dispute over the material facts in this case. The parties agree the district court’s decision was based on its

interpretation and application of K.S.A. 60-203(b). Consequently, this court exercises de novo review. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (where there is no factual dispute, appellate review of an order regarding summaxy judgment is de novo). This case involves a personal injury claim against the defendant. The statute of limitations on such a claim is 2 years. K.S.A. 60-513.

Because the incident on which the claim is based occurred on April 27, 2000, plaintiff s civil action must have “commenced” prior to April 27, 2002, or somehow x'elate back to a date prior to April 27, 2002, in order to have been timely filed. See K.S.A. 60-203(a); K.S.A. 60-513; Grimmett v. Burke, 21 Kan. App. 2d 638, 641, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996). A civil action commences on the date a petition is filed with the clerk of the court, so long as there is a valid service of process within 90 days of the filing. K.S.A. 60-203(a)(l).

Otherwise, the action commences upon the date of a valid service of process unless K.S.A. 60-203(

b) applies, allowing the action to relate back to the date the petition was originally filed. K.S.A. 60-203(a)(2). K.S.A. 60-203(

b) provides: “If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (

a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.” In Grimmett, this court recognized that K.S.A. 60-203(

b) should be liberally construed. 21 Kan. App. 2d at 647. It also held: “[Bjefore it can be said that service has ‘purported to have been made,’ it must be shown that a defendant was given actual notice of having been sued. We also conclude that the following factors should exist:

(1) The original service must have ‘appeared’ to be valid and the returns by the sheriff s office or other process servers must indicate that the service was valid.

(2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment.

(3) The plaintiff had no reason to believe tire defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service.” 21 Kan. App. 2d at 647-48. In Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 101, 106 P.3d 492 (2005), die Kansas Supreme Court recognized that the Grimmett factors “limit the application of K.S.A. 60-203(

b) in accordance with the legislature’s intent to give parties a second chance at service only when the original service was declared invalid despite the fact that it gave the defendant actual notice of suit.” 279 Kan. at 101-02. The Kansas Supreme Court adopted the Grimmett factors and held that they should be utilized to determine if K.S.A. 60-203(

b) applies when the district court has adjudicated a plaintiffs improper service of process defense on the merits. 279 Kan. at 102 (citing Yoh v. Hoffman, 29 Kan. App. 2d 312, 315, 27 P.3d 927, rev. denied 272 Kan. 1423 [2001]). On August 27, 2002, plaintiff s counsel and defendant’s counsel had a telephone conference. Defendant’s counsel informed plaintiffs counsel about the legal issue involved with the attempted service of process and that defendant did not live in Kansas. Later that day, defendant’s counsel provided plaintiff s counsel with defendant’s current address.

Plaintiff issued an alias summons which was served on defendant on August 30, 2002. Eventually, the district court found K.S.A. 60-203(

b) did not apply. The court found that although defendant received notice of the lawsuit from the attempted March 28,2002, service, the service was not valid. This record shows the returned envelope containing the April 18, 2002, notice of service indicated the service was not valid. Furthermore, the district court found plaintiff could not believe in good faith that service was valid. Finally, the court found plaintiff had reason to believe defendant was contesting service before the statute of limitations had run and while there was still an opportunity to correct any defective service.

The district court found valid service was not obtained until November 25, 2003, the date plaintiff served defendant with an alias summons. Pursuant to K.S.A. 60-203(a), the action commenced on November 25, 2003, well beyond the April 27,2002, date on which the statute of limitations expired. Plaintiff argues that Hughes v. Martin, 240 Kan. 370, 729 P.2d 1200 (1986), is controlling on this issue. Hughes instructs that K.S.A. 60-203(

b) should be applied liberally “in cases involving any irregularity or any defect in the service of process.” 240 Kan. at 376. Hughes does not entirely control this issue. While K.S.A. 60-203(

b) should be liberally construed to prevent actions from being barred based on good faith mistakes made as part of the service of process, our Supreme Court has recognized limits upon the statute’s application. Pieren-Abbott, 279 Kan. at 101-02 (adopting the Grimmett factors). Plaintiff argues that K.S.A. 60-203(

b) is applicable even considering the Grimmett factors. Plaintiff notes that defendant did receive notice of the suit as a result of the initial service, as tenants at defendant’s old address forwarded the petition and summons to defendant’s mother who phoned defendant and mailed the information to defendant in Arizona. Plaintiff argues he had a good faith belief that the service was valid.

Plaintiff contends that even though defendant filed an answer denying that defendant lived in Reno County, Kansas, and asserted the affirmative defenses of insufficient process and insufficient service of process, there was nothing to indicate the initial service was not valid.

Plaintiff argues that “matters relating to affirmative defenses are frequently set forth in answers filed by defendants to avoid inadvertent waiver of those defenses.” Plaintiff s arguments are not persuasive because plaintiff would have been able to see from the returned envelope filed with the court that defendant no longer lived at her previous address. Even without the envelope, defendant’s answer gave a clear indication service was not valid, given defendant denied living in Kansas and defendant was raising the affirmative defenses of insufficient process and insufficient service of process.

Plaintiff had sufficient time to correct any irregularities or deficiencies in the service of process or file for a 30-day extension to do so. As the district court noted, even though defendant was notified of the suit based on the initial service, such did not diminish the reality that (1) the original service did not appear to be valid; (2) plaintiff could not claim a good faith belief that service was valid; and (3) plaintiff had a reason to believe defendant was contesting service prior to the expiration of the statute of limitations. The district court did not err when refusing to apply K.S.A. 60-203(

b) to prevent plaintiffs claim from being barred by tire statute of limitations. Affirmed.