pampamk

In need of some direction, served, answered, received interrogatories

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@hot in az,

My husband said if we won the appeal , why do they get another chance????? Good question.

The "Remand" word in "Reverse and Remand" gave Midland this second chance

and they grabbed it.

I fully expect to lose in justice court again , and this is not appealable.

Who said that it's not appealable ?
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Back from trial 3 1/2 hours long. Lost. Pretty much knew when the judge granted their telephonic witness, and denied my MIL, I was done. Then he would not let the witness be questioned on the Case account because she said she did not know anyuthing about Chase. She did admit she had never seen my account. I am devastated. Well, Pam up to you to represent the Pam's now!!

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@hot in az... I feel your pain. I know it is hard to even think about, but agreeing GDMate, who said it is not appealable and why? You have fought for so long and I know you are drained, but if it is possible I say go for it!!! I truly am sorry!

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So, here is my completed case law "brief". I chose not to interject myself at all, I only used case law to try to prove my point. I started where my previous post had left off, with @Anon Amos suggestions to include everything that has happened after the answer hearing. My fear right now is not citing something correctly... I hope this doesn't bunch it all up together when I hit post....

27. December 6, 2013, defendant appeared for Answer Hearing for Petition filed April

30, 2012, 585 days later.

28. February 14, 2014 a hearing ensued and a trial date was set.

29. April 25, 2014 a trial ensued by magistrate court.

30. May 14, 2014 magistrate court ruled in favor of plaintiff.

31. May 28, 2014 defendant filed Notice of Appeal.

32. July 9, 2014 plaintiff requested Appeal hearing continued.

33. August 4, 2014 a hearing ensued on plaintiff Motion to Dismiss Appeal.

34. September 3, 2014 a hearing ensued on plaintiff’s Motion to Dismiss Appeal and a

trial De Novo ensued.

COMMENCEMENT OF ACTION:

K.S.A.60-203: Commencement of action. (a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).

“K.S.A. 60-203 is concerned exclusively with when a civil action is commenced. The exact date an action is "commenced" is often crucial in statute of limitations issues. Under section (a), a plaintiff may file an action on the last day of a two-year statute of limitations and still be within time as long as service of process is obtained within 90 days (or 120 days if extended by the court). If service is made later than the specified time period, the action is commenced on the date service is obtained.” Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986).

“K.S.A. 60-230, in essence, operates to relate service of process back to the date of the filing of the petition in determining when an action is commenced. Nowhere does K.S.A. 60-203 refer to the filing of a new action after a previous action has been dismissed…” Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986).

“Plaintiff herein did not bring himself within K.S.A. 60-203(B) by seeking proper service in the original action — instead, he filed a new case. That new case (the one before us) was commenced on the date of its filing (March 12, 1985), as service was obtained within 90 days thereafter — well beyond the statute of limitations on any of the causes of action…” Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986).

"A civil action is not commenced until the defendant is served or enters an appearance." Medina v. American Family Mut. Ins. Co., 29 Kan.App.2d 805, 811, 32 P.3d 205 (2001), rev. denied 273 Kan. 1036 (2002)

DUE DILIGENCE:

K.S.A. 60-517: f after the cause of action accrues he or she [i.e., the person against whom a cause of action has accrued] depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter. (emphasis added)

The United States District Court for the District of Kansas held that "known" within the Kansas tolling statute means "`known to plaintiff,' or by the exercise of due diligence should have been known to plaintiff." Carter v. Zahn, 37 F.R.D. 556, 559 (D. Kan. 1965). see also Carter v. Kretschmer, 2 Kan. App.2d 271, 577 P.2d 1211, rev. denied 225 Kan. 843 (1978),and In re Estate of Barnes, 212 Kan. 502, 508, 512 P.2d 387 (1973). “Both Zahn and Kretschmer equate the term "whereabouts" with an address where service of process can be effected, and in Kretschmer this court noted that absence sufficient to toll the statute of limitations means "beyond the reach of process from our courts." 2 Kan. App.2d at 272. Gideon v. Gates, 5 Kan. App.2d 23, 611 P.2d 166, rev. denied 228 Kan. 806 (1980).

“K.S.A. 60-517 does not contemplate a district court issuing an ex parte order tolling the statute of limitations until service of process can be obtained on a party. Rather, K.S.A. 60-517 contemplates that a plaintiff will at all times exercise due diligence to obtain service on a defendant.” Hogue v. Johnson, 28 Kan.App.2d 334, 338, 17 P.3d 364 (1999)

DOCTRINE OF UNIQUE CIRCUMSTANCES:

“This court also cautioned that the unique circumstances doctrine is one of "specific and limited application." In re Tax Appeal of Sumner County, 261 Kan. 307, 316, 930 P.2d 1385 (1997). In fact, this court has applied the unique circumstances doctrine only where an untimely filing was the result of a nonparty error.” See 261 Kan. at 317 (untimely filed petition for reconsideration excused where Board of Tax Appeals made erroneous statement with respect to filing period); Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). at 30-31 (applying unique circumstances doctrine where 40-day delay in serving summons was caused by error of clerk of the district court); Schroeder v. Urban, 242 Kan. 710, Syl., 750 P.2d 405 (1988) at 713-14 (untimely filing of appeal excused where the district court purported to extend the appeal period).

"Kansas courts have applied the unique circumstances doctrine only where an untimely filing was the result of a nonparty error." (Emphasis added.) Douglas v. Watson, case No. 91,197, 92 P.3d 613, 2004 WL 1489080, filed July 2, 2004.

SAVING STATUTE

“Note, K.S.A. 60-518 is inapplicable herein as the original action was not "commenced within due time" by virtue of the lack of service on Carl Brollier.” Newell v. Brollier, 239 Kan. 587, 588, 722 P.2d 528 (1986).

“We think it is important to note the reasoning of the Supreme Court in Denton in rejecting the argument that the savings statute authorizes repeated new actions within 1 year (now 6 months) after the dismissal of the preceding action. The court stated that, if it did authorize such actions, then a cause of action could be kept alive and litigation upon it prolonged indefinitely. The court reasoned that nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 76 Kan. at 91. A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. 76 Kan. at 92. Here, the language of G.S. 1868, 80-23 has remained fundamentally unchanged to the present time.” See Clanton v. Estivo, 26 Kan. App. 2d 340, 344, 988 P.2d 254, 257-58 (1999)

Defendant's Prayer: Defendant request that this honorable court dismiss the entire action, demand plaintiff to reimburse defendant of costs associated with this action and for such further relief as the court deems just and equitable

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So, a little refresher here... had a trial de novo in dc after winning my appeal. After arguments & closing statements,the dj asked us to submit an informal statement citing case law to support our arguments, he discussed with the plaintiff where I was right and she was wrong and spelled out to her what she needed to find and cite to win. Hence the post above. I get home today to find I have received the plaintiff letter to the judge. Here it is....

Dear Judge,

This is a classic case for unjust enrichment and quantum meruit and where equity should prevail. There have been two trials, one was held in the magistrate court and one in the district court of A County, Kansas. In neither one did the defendant even deny that she had a credit card with Capital One Bank, that she received invoices for the same at her correct address which showed a balance due as claimed by the Plaintiff. She admitted that as stated on the attachment to the Bill of Sale to Plaintiff from Capital One Bank that all of the information allegedly identifying her account was correct as to name, address, social security number, phone number, date of birth, date of last payment.

There are two main issues which we address below. The last payment date was July 15, 2010. Plaintiff filed suit in A County, Kansas on April 30, 2012, within the statute of limitations. The A County Sheriff returned the Summons on May 18, 2012 as "no service, B County address". Plaintiff on August 15, 2012 dismissed the A County case to re-file in B County, Kansas which was done the same day. Numerous attempts were made for service as shown by the docket sheet attached the last one being on March 7. 2013 hearing. The statute of limitations would expire July 15, 2013. The case was reinstated in A County, Kansas on August 27. 2013. K.S.A. §60-518 provides that if a case is filed within the statute of limitations and fails other than upon the merits it can be re-filed within six months after last failure. The case was reinstated within six months from the last failure which takes the case out of the statute of limitations question, pursuant to K.S.A. §60-518.

Summons was finally served on November 27, 2013 which was within 90 days of the Order of Reinstatement which takes care of the 90 day relation back question. We believe that resolution of the two issues results in judgment in favor of the Plaintiff.

We further maintain that K.S.A. §60-2103A precludes the statute of limitation from being raised on appeal due to appeal being out of time.

I don't know if I have stated on here, I think I have, what a grand master manipulator of words this attorney is. This letter is proof of that! It is also proof of what a liar she! I haven't a clue what she is referring to on March 7... a hearing, what hearing??? I hadn't even been served...Anyway..... My question, can and will a judge sanction an attorney for rewording a statute of law to fit her needs? I can't believe how she rewrote 60-518... I would like to think it will po the judge and he will take it upon himself to sanction her for rewriting the law... but I don't even know if that is possible....

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So I looked through all the papers and the only thing I can find is an alias summons filed date stamped Feb 6 for personal/residential service by B county sheriff, and had I been served, a hearing was scheduled for March 7, the hearing she is referring to in her letter. This lady is a piece of work... Now I am thinking maybe I shall write a letter to add to my case law... what do you think? Tomorrow is the deadline...

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@pampamk

The reason I asked about the saving statute is because, usually, new issues cannot be brought up in an appeal. However, if this is small claims court, the rules might be relaxed.

In my opinion, you have to stress to the judge that the saving statute does not apply here. Look at the statute:

60-518. New action, when. If any action BE COMMENCED WITHIN DUE TIME, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

According to 60-203, the first 2 actions were never commenced (started) because you were never served. The saving statute only applies to actions that were commenced.

For that same reason, the first action should not have been REinstated. To "reinstate" means to restore. You can only reinstate that which was once started. Since the 1st action (and 2nd) was never started, it could not be reinstated.

Black's Law Dictionary 1312 (8th ed. 2004) defines "reinstate" as "[t]o place again in a former state or position; to restore."

The former position of the 1st filing was not that of an action that was commenced. Therefore, it was not an action that could be restored.

The first and second actions were never commenced. Therefore the SOL was not tolled. Due to the fact that the first action was never commenced, it could not have been reinstated. It would have to have been considered a new action. As a result, based upon the date of last payment on the account, the action was time-barred.

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@BV80 It was a trial de novo, so it was as if it were it a brand new trial. We were not limited. The judge asked for this "brief" to support our arguments. Basically he told the plaintiff what she needed to find case law on and cite it to support her specific arguments. He told her how to beat me without actually saying "to win" cite some case law on this point... Which I don't agree with, and I think if he does rule against me it will only help me in my appeal. Anyway, that is the main reason I only cited case law in my brief, the way I see it, we have presented our arguments, he doesn't want any more arguments, he just wanted support of the arguments already presented. I did bring up the savings statute in my arguments and he did quote me to her in their "discussion" and he told her I was right, and asked her why she thought I wasn't correct, after she answered, he told her that she needed to cite case law to support her reasoning. He did this with every point I presented. I stressed at trial "commencement" issues, and why the savings statute doesn't apply, along with other points. What I find interesting is how she completely reworded the statute to meet her needs. He should immediately realize that as I repeated the saving statute several times. She did not cite any case law in her brief which I view as a determinate to her, however I say this knowing full well in the end it doesn't really matter, he will rule however he wants. There are many cases supporting our argument on commencement and the saving statute, and perhaps I should have cited them all, but I felt my best avenue was to keep this brief short and to the point, this may be to my determinate, but if he already has his mind made up, which I assume he does, it wouldn't really matter what or how much I said.

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Pampamk, I would still correct her interpretation of her staute, some judges won't go looking it up. They like the best argument. Correct her by saying what the statue is, and why she is wrong.

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@pampamk

I don't think that the attorney is a master manipulater. Either she doesn't understand the saving statute, or she's just sticking by her argument.

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Hello to all.... Well, I received the judge's ruling... finally. On to the Court of Appeals we go. DANGIT, just DANGIT!!! In my opinion he did not interpret the savings statute correctly. Here is the savings statute: Statute 60-518: New action, when. If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

 

Here is the part of the ruling he rules against me -- But the analysis does not end without another look at K.S.A. 60-518 which provides that Plaintiff "may commence a new action within six (6) months after such failure." Here the failure occurs on July 15, 2013. The case is commenced on November 27, 2013. November 27, 2013 is within six months of July 15, 2013. So K.S.A. 60-518 saves the plaintiff's claim.

 

Essentially he is saying the failure was the date the SOL ran in July. Which is not what the statute states. 

 

Here is but one citation from the court of appeals: http://www.kscourts.org/Cases-and-Opinions/Opinions/CtApp/2010/20100408/102466.pdf 

 

"A panel of our court recently held that, for our savings statute to apply, (1) the first suit must have been filed before the limitations expired or "commenced" within due time, (2) the first suit must have been dismissed for reasons other than the merits of the claim, (3) the second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the savings statute, the limitations period must have expired when the second suit was filed. Campbell v. Hubbard, 41 Kan. App. 2d 1, 2-3,

201 P.3d 702 (2008)."

 

This case is dealing with a case initially filed in another state, but remember KS has a statute dealing specifically with commencement: Statute 60-203: Commencement of action. (a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).

 

I found many cases dealing with the savings statute and cited most...

 

I must say I am truly surprised, and appalled, at how the judge construed the facts in his ruling...  I will post more later, just wanted to get this on here.

 

What do you think?

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@pampamk

 

I had a feeling that this was going to come down to the judge's interpretation of the saving statute in relation to the 2nd filing.  It appears that the judge either ignored or doesn't understand the meaning of the term "commence". 

 

Did you happen to quote Handy v. Reed?  If not, it's the case you need.  You're going to have to do some fancy explaining due to the fact that the lawsuit against you was filed 3 times, but in Handy, the Appeals Court specifically explains the relation of the saving statute to an original filing along with providing dates to clarify their explanation.

 

We hold the mere filing of the petition and dismissal of the action without ever serving the defendant does not allow the case to be deemed to have been commenced under K.S.A. 60-203(a) to allow the provisions of K.S.A. 60-518 to operate to save Handy's subsequent action.  Handy v. Reed, 32 Kan.App.2d 247, 254, 81 P.3d 450 (2003), rev. denied 211 Kan. 923 (2004).

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@BV80

@pampamk

 

I had a feeling that this was going to come down to the judge's interpretation of the saving statute in relation to the 2nd filing.  It appears that the judge either ignored or doesn't understand the meaning of the term "commence". 

 

I believe ignored is the term.... Hell he isn't using any of the filings, he is calling the running the of the SOL the failure, and the service of process being within 6 months of that. He even stated the statute on commencement and that the claim commenced on the date I was served, and plaintiff's claim could not be saved by that...

 

Did you happen to quote Handy v. Reed?  If not, it's the case you need.  You're going to have to do some fancy explaining due to the fact that the lawsuit against you was filed 3 times, but in Handy, the Appeals Court specifically explains the relation of the saving statute to an original filing along with providing dates to clarify their explanation.

 

We hold the mere filing of the petition and dismissal of the action without ever serving the defendant does not allow the case to be deemed to have been commenced under K.S.A. 60-203(a) to allow the provisions of K.S.A. 60-518 to operate to save Handy's subsequent action.  Handy v. Reed, 32 Kan.App.2d 247, 254, 81 P.3d 450 (2003), rev. denied 211 Kan. 923 (2004).

 

I cited many cases and yes Handy v Reed was one.

 

He stated many things in his ruling that are simply not true or turned them around. For instance: he states I made various arguments that judgement should not be granted and that I was not the correct defendant. Not exactly correct... I was arguing standing and the insufficiency of their evidence, one of my examples was cases of identity theft and the courts should require more/better evidence. He struck me down quickly on my standing argument, and wouldn't listen to me at all on it, I did object to their use of their evidence while questioning me. He states plaintiff clearly met the burden of proof on the debt. He made comment that plaintiff eventually learned that I lived in A county rather than B county as reflected in the earlier return of summons, he completely ignored that I do not... He made mention of the B county case was dismissed, but that is it, he didn't go on to say by the court for want of prosecution...

 

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Can you do a motion to reconsider first, then appeal? Point all that out in the motion.

I looked that up, I have ten days to do that, if I want. I just don't know what to do. Would that be a better option than appealing to Court of Appeals?

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Will the same judge rule on the motion to reconsider?  Also in my state a MTR does not stall the time on an appeal.  Look at your state law to make sure that if you file a MTD you don't lose your time to appeal.

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 I have been studying up on how to file my appeal. I have lots of questions, and am going to need lots of help. My time is running and I get nervous just thinking about it. I am sure I will ask many stupid questions, as I read the rules, I realize I haven't a clue what is being said.

 

Soooo, with that being said, here is my first stupid question.... The rules state to file my appeal in district court, does that mean I file my notice of appeal with the court clerk where I just had my trial? Statute 60-2103: Appellate procedure...A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal.

 

Thank you in advance for your patience and all of the help!!!

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In Az you file the appeal and fee with the same court you lost in , and they transfer it later to the higher court.

 

You should be able to google your states appeal rules. In az we only have very  limited time so check your state rules

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In Az you file the appeal and fee with the same court you lost in , and they transfer it later to the higher court.

 

You should be able to google your states appeal rules. In az we only have very  limited time so check your state rules

I've been reading and reading the rules, I just didn't realize one filed the appeal in the same court... I figured I was misunderstanding.

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So according to the form supplied for my Notice of Appeal it states:   (my name here) appeal(s) from (designate the judgement or part of the judgement or other appealable order) to the Court of Appeals of the State of Kansas. How should I word this? I don't want to be to vague, yet nor do I want to be to strict. I would like to appeal the judgement as a whole, the order finding against me where the judge misinterpreted the statute. I would also like to appeal his overruling my objection to hearsay on their evidence. Is it sufficient to say the judgement against defendant. Then bring all up in my brief? Ugh, I don't know what to do.... sigh... 


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I guess I should explain a little better. I am certain if I appealed on the misinterpretation of the statute only, I would prevail, on that issue.  I know I shouldn't even say that out-loud... However, I would especially like to appeal the overruling of my objection, I would love for one case to make it to the Court of Appeals and hear them say the evidence these jbd's are providing is insufficient.(I say this because I cannot find any case law pertaining to it for my state) Wouldn't that be fun!!! If that is what they would rule or not... I haven't a clue, probably not, but hey shouldn't we try??? I don't see how it would hurt my case, as the judge already ruled against me on it, but I don't want to take any chances either. Hell, I don't think I am making myself any clearer.  I am in over my head... I need someone to take my hand and lead me...

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