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Updated: June 06, 2011

No. 105,040 IN THE COURT OF APPEALS OF THE STATE OF KANSAS DANNY MANGUS, Appellee, v. HARL G. STUMP, M.D. and VICTOR M. EDDY, M.D., Appellants.

SYLLABUS BY THE COURT 1. A district court's decision on a motion to dismiss is subject to a de novo standard of review.

2. An appellate court reviews the district court's application of the unique circumstances doctrine using a bifurcated standard of review. Whether the unique circumstances doctrine is available to the court as an equitable remedy in a given situation is a question of law subject to de novo review. If the unique circumstances doctrine is available as an equitable remedy, then whether the district court properly applied the doctrine to the facts of a particular case is subject to an abuse of discretion standard of review.

3. The unique circumstances doctrine is one of specific and limited application. The doctrine cannot be applied to confer jurisdiction upon a court where jurisdiction otherwise does not exist. In other words, the unique circumstances doctrine cannot be

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applied to circumvent jurisdictional requirements, no matter how unfair or unjust the result may be.

4. The proper application of the unique circumstances doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error.

5. Subject matter jurisdiction is vested by statute and establishes the court's authority to hear and decide a particular type of action. Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court's lack of jurisdiction.

6. In Kansas, the statute of limitations is an affirmative defense that must be proved and pled by a defendant or else the defense is waived. Whether a lawsuit is filed within the applicable statute of limitations has nothing to do with the district court's subject matter jurisdiction to hear a particular type of case.

7. Under the facts of this case, the district court properly applied the unique circumstances doctrine to prevent the plaintiff's cause of action from being barred by the statute of limitations.

Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed June 3, 2011. Affirmed.

Michael R. O'Neil and Shannon L. Holmberg, of Gilliland & Hayes, P.A., of Hutchinson, for appellants.

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Debra Egli James, of Hampton & Royce, L.C., of Salina, for appellee.

Before MALONE, P.J., PIERRON and ARNOLD-BURGER, JJ.

MALONE, J: This is an interlocutory appeal filed by Harl G. Stump, M.D., and Victor M. Eddy, M.D., challenging the district court's decision to apply the unique circumstances doctrine to prevent a cause of action filed by Danny Mangus from being barred by the statute of limitations. Although we recognize that the unique circumstances doctrine is one of specific and limited application, we affirm the district court's utilization of the doctrine under the facts of this case.

On May 29, 2008, Mangus filed a petition against Stump and Eddy (defendants) alleging medical negligence. The petition claimed the defendants negligently performed a laparoscopic cholecystectomy on Mangus on or about June 2, 2006. On April 27, 2009, Mangus' petition was voluntarily dismissed without prejudice. Mangus refiled his petition on October 23, 2009, pursuant to K.S.A. 60-518.

On January 19, 2010, Mangus filed a motion for extension of time to serve process upon defendants under K.S.A. 60-203. In an effort to show good cause for a 30-day extension of time to serve the defendants, Mangus alleged the following: (1) His attorney's daughter faced serious medical issues from mid-September 2009 to late December 2009; (2) his attorney was involved in the trial of two separate cases in December 2009; (3) his attorney's legal assistant took a 5-week leave of absence to take care of a sick relative in October 2009; and (4) his attorney's law firm experienced a computer server crash that resulted in a substantial loss of data in November 2009.

On January 20, 2010, the district court issued an ex parte order granting Mangus an additional 30 days to serve the defendants. The order indicated the extension of time was granted by the district court after "reviewing [Mangus'] Motion, and being fully 3

advised in the premises." Thereafter, summons was served upon Stump on February 10, 2010, and upon Eddy on February 12, 2010, within the 30-day extension of time.

On March 9, 2010, the defendants filed a motion to dismiss pursuant to K.S.A. 60212(b)(6) due to the expiration of the statute of limitations. In their motion to dismiss, the defendants argued that Mangus failed to establish good cause for an extension of time to serve process because he did not attempt to serve the defendants prior to requesting the extension of time. Thus, the defendants contended that the order allowing Mangus an additional 30 days to serve process was improperly granted. As a result, the defendants asserted that Mangus' cause of action was not timely commenced and was barred by the applicable statute of limitations.

In his response to the motion to dismiss, Mangus conceded the fact that he did not attempt to serve the defendants prior to requesting the extension of time. However, Mangus argued that a finding of good cause to obtain an extension of time was not contingent upon Mangus having made an attempt to serve process on the defendants. Mangus also asserted that the unique circumstances doctrine should be applied to save his cause of action should the district court reverse its good-cause finding because he had relied in good faith on the district court's order.

On April 15, 2010, the district court held a hearing on the motion to dismiss. On June 21, 2010, the district court issued a memorandum decision. The district court determined that an attempt to serve process prior to requesting an extension of time is not a sine qua non of good cause, but it is one crucial factor to consider. The district court revisited the good-cause issue, and after hearing full argument from each side, the district court found "that good cause did not, in fact, exist at the time the Court signed the Order of Extension."

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The district court next considered Mangus' request to apply the unique circumstances doctrine to prevent his cause of action from being barred by the statute of limitations. The district court noted that when it issued the order extending time, Mangus' attorney still had 2 days to effect service on the defendants. The district court found there was substantial reason to believe that Mangus' attorney could have obtained service of process on the defendants before the initial deadline expired, but "she was deprived of that opportunity by relying on the Court's order." The district court also found that "resolution of the good cause issue in this case [was] not so obvious that [Mangus'] counsel should have disregarded the Court's order." The district court concluded:

"What was [Mangus'] counsel to do here? She had informed the Court in detail, in writing, of the matters she relied upon for good cause. There was no dishonesty or negligent misrepresentation. The Court made an independent, fully informed (given that the court had access to its file) decision concerning her Motion. That the Court was incorrect, in hindsight, in doing so deprived [Mangus] of two days in which to attempt service. The Court finds that, given what she offered the court in support of good cause, [Mangus'] counsel was justified in relying upon the Court's Order. "The Court further finds that application of the unique circumstances doctrine serves the interest of justice, in that failure to apply it here would deprive [Mangus] of his cause of action, due in large part to the Court reversing its initial ruling by reasons not strictly caused by [Mangus] or his counsel. Finally, the circumstances here are, indeed, unique. "Therefore, the Court finds the unique circumstances doctrine should be applied here to allow her service of process upon the defendants to have the effect of commencing [Mangus'] cause of action within the period of limitation."

The district court subsequently made the necessary findings under K.S.A. 2010 Supp. 60-2102(c) to allow the defendants to seek an interlocutory appeal. The defendants filed a timely application for an interlocutory appeal, which this court granted.

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On appeal, the defendants argue that the district court erred by applying the unique circumstances doctrine to prevent Mangus' cause of action from being barred by the statute of limitations. Mangus responds by first arguing there is no requirement for a plaintiff to attempt to serve process prior to requesting an extension of time under K.S.A. 60-203(a); thus, the district court erred when it set aside its order extending time for service of process. However, Mangus did not cross-appeal this adverse ruling by the district court, so the issue of whether the district court erred when it set aside the order extending time for service of process has not properly been raised on appeal. See K.S.A. 2010 Supp. 60-2103(h). In the alternative, Mangus argues that the district court properly applied the unique circumstances doctrine in order to prevent his cause of action from being barred by the applicable statute of limitations.

A district court's decision on a motion to dismiss is subject to a de novo standard of review. Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006). Further, the defendants' arguments on appeal involve the interpretation of statutory language. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Finally, this court must determine whether the unique circumstances doctrine should be applied. The Kansas Supreme Court has held that the unique circumstances doctrine is one of specific and limited application, and whether it applies is a question of law subject to de novo review. Finley v. Estate of DeGrazio, 285 Kan. 202, Syl.

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