Approved by the Judicial Council December 4, 2009 Proposed Amendments to Kansas Code of Civil Procedure Judicial Council Civil Code Advisory Committee Comments December 4, 2009 Introduction The Kansas Code of Civil Procedure, effective January 1, 1964, was originally proposed by a Judicial Council Advisory Committee. The Kansas Code was patterned after the Federal Rules of Civil Procedure, and the Advisory Committee noted at the time the many benefits of conformity with the Federal Rules. One of the benefits is uniformity of practice in the state and federal courts in Kansas. In addition, interpretation and analysis of the federal rules are available to assist in construing the corresponding Kansas provisions. The Judicial Council Civil Code Advisory Committee has completed a two-year review of the Kansas Code of Civil Procedure, comparing the Kansas provisions with the corresponding federal rules. Prior to this review, the most recent comprehensive review of the Kansas Code of Civil Procedure was in the mid-1990's. The current review was prompted by a number of recent changes to the Federal Rules of Civil Procedure. The comprehensive Federal Style Project, effective December 1, 2007, involved amendments to virtually every civil rule. The goal of the Federal Style Project was to clarify and simplify the rules so that they would be easier to use and understand, without making substantive changes. Also effective on that date were the “Style-Substance” amendments, which involved minor technical changes to a small group of rules. Another group of amendments will become effective December 1, 2009, including the Time-Computation project that revises the way time is computed under the federal rules. In addition, the Civil Code Advisory Committee reviewed other federal rules amendments that Kansas has not adopted, including those that had taken effect since the last comprehensive review. The review was limited to Articles 1-3 of Chapter 60. The Committee concluded that some amendments to the federal rules that had not yet been incorporated into the Kansas Code were inapplicable to practice in state courts or were inconsistent with established Kansas practice reflecting strong state policies. In most instances, however, the Committee concluded that amendments to the federal rules were compatible with Kansas practice and policies. The Civil Code Advisory Committee previously reviewed a group of federal rules amendments dealing with the issue of e-discovery that went into effect on December 1, 2006, and recommended corresponding changes to the Kansas Code of Civil Procedure. That legislation was introduced and passed in the 2008 legislative session. The Comment section following each statute below generally refers to the restyling revisions that are recommended 1) to incorporate Federal Style Revision amendments in Kansas Code provisions modeled after the Federal Rules, and 2) to restyle Kansas Code provisions that have no federal counterpart using similar style guidelines. The Restyling Objectives below and the Comments regarding revisions patterned after federal rules amendments have been borrowed from the Federal Advisory Committee Notes and adapted for the Kansas Code. Restyling Objectives Some of the primary restyling objectives are summarized below. More detailed comments from the Federal Advisory Committee on the Federal Style Project as well as the other federal rules amendment packages can be found at: http://www.uscourts.gov/rules/. The restyled Kansas Code reduces the use of inconsistent terms that say the same thing in different ways. Because different words are presumed to have different meanings, such inconsistencies can result in confusion. The restyled rules reduce inconsistencies by using the same words to express the same meaning. For example, consistent expression is achieved without affecting meaning by the changes from “upon motion or on its own initiative” in K.S.A. 60-205(c) and variations in many other statutes to “on motion or on its own.” Some variations of expression have been carried forward when the context made that appropriate. As an example, “stipulate,” “agree,” and “consent” appear throughout the Kansas Code, and “written” qualifies these words in some places but not others. The number of variations has been reduced, but at times the former words were carried forward. None of the changes, when made, alters the statute's meaning. The restyled Kansas Code minimizes the use of inherently ambiguous words. For example, the word “shall” can mean “must,” “may,” or something else, depending on context. “Kansas courts have read ‘shall’ to mean ‘may’ where the context requires.” State v. Porting, 29 Kan. App. 2d 869, 892 P.2d 915 (1995) (citing Paul v. City of Manhattan, 212 Kan. 381, 385, 511 P.2d 244 (1973)). The potential for confusion is exacerbated by the fact that “shall” is no longer generally used in spoken or clearly written English. The restyled Kansas Code replaces "shall" with “must,” “may,” or “should,” depending on which one the context and established interpretation make correct in each section. The restyled rules minimize the use of redundant “intensifiers.” These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. “The court in its discretion may” becomes “the court may”; “unless the order expressly directs otherwise” becomes “unless the court orders otherwise.” The absence of intensifiers in the restyled Kansas Code does not change the substantive meaning. For example, the absence of the word “reasonable” to describe the notice of a motion for an order to compel discovery in K.S.A. 60- 237(a)(1) does not mean that “unreasonable” notice is permitted. The restyled Kansas Code also removes words and concepts that are outdated or redundant. The reference to “at law or in equity” in K.S.A. 60-201(b) has become redundant with the merger of law and equity. Outdated words and concepts include the reference to “demurrers, pleas, and exceptions” in K.S.A. 60-207(c) and references to “averments” in K.S.A. 60-208, 60-209, 60-210, and 60-255. The restyled Kansas Code removes a number of redundant cross-references. For example, K.S.A. 60-208(b) states that a general denial is subject to the obligations of K.S.A. 60-211, but all pleadings are subject to K.S.A. 60-211. Removing such cross-references does not defeat application of the formerly cross-referenced statute. 2 Proposed Amendments 1 60-101. Title. This act shall may be known cited as the code of civil procedure. 2 COMMENT 3 The language of K.S.A. 60-101 has been amended as part of the general restyling of the 4 Kansas Code to make it more easily understood and to make style and terminology 5 consistent throughout the Code. The change in this section is intended to be stylistic only. 6 60-102. Construction. The provisions of this act shall must be liberally construed and administered 7 to secure the just, speedy, and inexpensive determination of every action or and proceeding. 8 COMMENT 9 The language of K.S.A. 60-102 has been amended as part of the general restyling of the 10 Kansas Code to make it more easily understood and to make style and terminology 11 consistent throughout the Code. These changes are intended to be stylistic only. 12 60-103. Restricted mail defined. The term "restricted mail" as used in this chapter means mail, sent 13 postage or other delivery fees prepaid, that is endorsed which carries on its face the endorsements 14 "return receipt requested showing address where delivered" and "deliver to addressee only" and for 15 which the appropriate fees have been paid upon mailing for the processing of mail so endorsed in 16 accordance with the pursuant to applicable postal regulations so that the sender will receive a return 17 receipt notification with the date and address of delivery, and, if the addressee is a natural person, 18 only the addressee or an authorized agent will receive the mail of the postal department, except that 19 mail on which the addressee is not a natural person or persons the endorsement "deliver to addressee 20 only" may be omitted . 21 COMMENT 22 The language of K.S.A. 60-103 has been amended as part of the general restyling of the 23 Kansas Code to make it more easily understood and to make style and terminology 24 consistent throughout the Code. 25 There is no counterpart of this section in the federal rules, which do not use the term 26 “restricted mail.” The required endorsements in the section are no longer correct under 27 current postal regulations. The section was revised to remove the endorsement language so 28 that the section will remain accurate regardless of future postal regulation amendments, if 3 1 any. Although the term “restricted mail” is only used in one place in Article 2, K.S.A. 60- 2 227, it is used in other provisions in Chapter 60 and elsewhere in the Kansas Statutes 3 Annotated. 4 60-104. Acts by court or judge Location of proceedings. Without regard to whether the word 5 "court" or the word "judge" is used in any provisions of this chapter, all All trials upon on the merits 6 shall must be conducted in open court and, subject to K.S.A. 20-347, in a regular courtroom if 7 reasonably possible. All other acts or proceedings, including the entry of a ruling or judgment, may 8 be done or conducted by a judge or judge pro tem in chambers, without the attendance of the clerk 9 or other court officials, or and at any place either within in or without outside the district; but no 10 hearing, other than one ex parte, shall may be conducted outside the district without the consent of 11 all affected parties affected thereby who are not in default. 12 COMMENT 13 The language of K.S.A. 60-104 has been amended as part of the general restyling of the 14 Kansas Code to make it more easily understood and to make style and terminology 15 consistent throughout the Code. These changes are intended to be stylistic only. 16 A reference to K.S.A. 20-347 was added to clarify that, with supreme court approval, 17 court may be held in suitable facilities other than the county courthouses. 18 There is no counterpart of this section in the federal rules. 19 60-201. Rules of civil procedure; citation; scope. 20 (a) The provisions of this article 2 of chapter 60 of the Kansas Statutes Annotated, and 21 amendments thereto, shall may be known and cited as the rules of civil procedure. 22 (b) This article governs the procedure in all civil actions and proceedings in the district courts 23 of Kansas, other than actions commenced pursuant to the code of civil procedure for limited actions 24 and governs the procedure in all original proceedings in the supreme court in all suits of a civil 25 nature whether cognizable as cases at law or in equity, except as provided in K.S.A. 60-265, and 26 amendments thereto. 27 COMMENT 28 The language of K.S.A. 60-201 has been amended as part of the general restyling of the 29 Kansas Code to make it more easily understood and to make style and terminology 30 consistent throughout the Code. 4 1 Since cases are no longer classified as being at law or in equity, there is no need to carry 2 forward the phrases that initially accomplished the merger. 3 The former reference to proceedings in the supreme court has been deleted. Appellate 4 procedure has changed significantly since the Code was enacted and is now governed by 5 Supreme Court Rules. 6 The former reference to “suits of a civil nature” is changed to the more modern “civil 7 actions and proceedings.” 8 The reference to K.S.A. 60-265 is deleted because K.S.A. 60-265 is not an exception to 9 this section. 10 60-202. One form of action. There shall be but is one form of action — to be known as " the civil 11 action.," in which the party complaining shall be designated "plaintiff" and the adverse party 12 "defendant." 13 COMMENT 14 The language of K.S.A. 60-202 has been amended as part of the general restyling of the 15 Kansas Code to make it more easily understood and to make style and terminology 16 consistent throughout the Code. 17 The Committee determined that the designation of parties, carried forward from G.S. 18 1949 60-201, is unnecessary. 19 60-203. Commencement of Commencing an action. 20 (a) Time of commencement. A civil action is commenced at the time of: 21 (1) filing a petition with the clerk of the court, if service of process is obtained or the first 22 publication is made for service by publication within 90 days after the petition is filed, 23 except that the court may extend that time an additional 30 days upon a showing of good 24 cause by the plaintiff; or 25 (2) service of process or first publication, if service of process or first publication is not 26 made within the time specified by provision subdivision (1). 27 (b) Curing invalid service. If service of process or first publication purports to have been made 28 but is later adjudicated to have been invalid due to any an irregularity in form or procedure or any 29 a defect in making service, the action shall nevertheless be deemed is considered to have been 5 1 commenced at the applicable time under subsection (a) if valid service is obtained or first 2 publication is made within 90 days after that adjudication, except that the court may extend that time 3 an additional 30 days upon a showing of good cause by the plaintiff. 4 (c) Entry of appearance. The filing of an entry of appearance shall have has the same effect as 5 service. Written contact with the court by a defendant, or an attorney for a the defendant, invoking 6 evoking the protection for such the defendant under the servicemembers civil relief act shall (50 7 USC 501 et seq.), and amendments thereto, is not be deemed an entry of appearance by the court. 8 (d) Telefacsimile Electronic filing. As used in this section, filing a petition with the clerk of the 9 court shall includes receipt by the clerk court of a petition by telefacsimile communication electronic 10 means complying with supreme court rules. 11 COMMENT 12 The language of K.S.A. 60-203 has been amended as part of the general restyling of the 13 Kansas Code to make it more easily understood and to make style and terminology 14 consistent throughout the Code. These changes are intended to be stylistic only. 15 No substantive change to current rules regarding telefacsimile filing is intended by 16 substituting the words “electronic means.” The use of the broader term will accommodate 17 future expansion of electronic filing methods pursuant to supreme court rule. 18 K.S.A. 60-203 differs substantially from Federal Rule 3. 19 60-204. Process, generally. The methods of serving process as set forth out in article 3 of this 20 chapter shall constitute sufficient service of process in all civil actions and special proceedings, but 21 they shall be alternative are alternatives to, and do not restrict in restriction of different methods 22 specifically provided by law. Substantial compliance with In any method of serving process, 23 substantial compliance therewith shall effect effects valid service of process if the court finds that, 24 notwithstanding some irregularity or omission, the party served was made aware that an action or 25 proceeding was pending in a specified court in which his or her person, status or property were 26 subject to being affected that might affect the party or the party’s status or property. 27 COMMENT 28 The language of K.S.A. 60-204 has been amended as part of the general restyling of the 29 Kansas Code to make it more easily understood and to make style and terminology 30 consistent throughout the Code. These changes are intended to be stylistic only. 31 K.S.A. 60-204 does not conform to Federal Rule 4, which contains the federal service 32 provisions. Service provisions in the Kansas Code are found in Article 3. 6 1 60-205. Service Serving and filing of pleadings and other papers. The method of service and 2 filing of pleadings and other papers as provided in this section shall constitute sufficient service and 3 filing in all civil actions and special proceedings but they shall be alternative to, and not in 4 restriction of, different methods specifically provided by law. 5 (a) Service: When required. 6 (1) In general. Except as otherwise provided in this chapter, each of the following papers 7 shall must be served upon each on every of the parties party: 8 (A) Every order required by its terms to be served an order stating that service is 9 required; 10 (B) every pleading subsequent to a pleading filed after the original petition, unless 11 the court orders otherwise orders under subsection (c) because of there are 12 numerous defendants; 13 (C) every paper relating to disclosure of expert testimony or a discovery paper 14 required to be served upon on a party, unless the court orders otherwise orders; 15 (D) a every written motion, other than except one which that may be heard ex parte; 16 and 17 (E) a every written notice, appearance, demand, or offer of judgment, designation of 18 record on appeal and or any similar paper. 19 (2) If a party fails to appear. No service need be made is required on a parties party who is 20 in default for failure failing to appear. except that pleadings asserting But a pleading that 21 asserts a new or additional claims claim for relief against them such a party shall must 22 be served upon them on that party in the manner provided for service of summons in 23 article 3 of chapter 60. 24 (b) Service: How made. 25 (1) Whenever under this article service is required or permitted to be made upon Serving an 26 attorney. If a party is represented by an attorney, the service under this section shall must 27 be made upon on the attorney unless the court orders service upon on the party is ordered 28 by the court. 29 (2) Service in general. A paper is served under this section Service upon the attorney or 30 upon a party shall be made by: 31 (A) handing it to the person; 32 (B) leaving it: 7 1 (i) at the person's office with a clerk or other person in charge or, if no one is in 2 charge, in a conspicuous place in the office; or 3 (ii) if the person has no office or the office is closed, at the person's dwelling or usual 4 place of abode with someone of suitable age and discretion who resides there; 5 (C) mailing it to the person's last known address - in which event service is complete 6 upon mailing; 7 (D) leaving it with the court clerk if the person has no known address; 8 (E) sending it by telefacsimile communication - in which event service is complete 9 upon receipt of a confirmation generated by the transmitting machine; or 10 (F) serving it by electronic means when authorized by supreme court rule or a local 11 rule. 12 (1) Delivering a copy to the attorney or a party: (2) mailing it to the attorney or a party at the last 13 known address; (3) if no address is known, by leaving it with the clerk of the court; or (4) sending 14 or transmitting to such attorney a copy by telefacsimile communication. For the purposes of this 15 subsection, "Delivery of a copy" means: Handing it to the attorney or to the party; leaving it at the 16 attorney's or party's office with the person in charge thereof or, if there is no one in charge, leaving 17 it in a conspicuous place therein; or, if the attorney's or party's office is closed or the person to be 18 served has no office, leaving it at the attorney's or party's dwelling house or usual place of abode 19 with some person of suitable age and discretion then residing therein. Service by mail is complete 20 upon mailing. Service by telefacsimile communication is complete upon receipt of a confirmation 21 generated by the transmitting machine. 22 (c) Serving numerous defendants. 23 (1) In general. In any If an action in which there are involves an unusually large numbers 24 number of defendants, the court may, upon on motion or of on its own initiative, may 25 order that: 26 (A) services of the defendants’ pleadings of the defendants and replies thereto to 27 them need not be served on other made as between the defendants; 28 (B) and that any cross-claim crossclaim, counterclaim, or matter constituting an 29 avoidance, or affirmative defense contained therein shall be deemed to be in 30 those pleadings and replies to them will be treated as denied or avoided by all 31 other parties; and 32 (C) that the filing of any such pleading and service thereof upon serving it on the 33 plaintiff constitutes due notice of it the pleading to the all parties. 8 1 (2) Notifying parties. A copy of every such order shall must be served upon on the parties 2 in such manner and form as the court directs. 3 (d) Filing. 4 (1) Interrogatories, depositions other than those taken under K.S.A. 60-227 and amendments 5 thereto, disclosures of expert testimony under K.S.A. 60-226 and amendments thereto and discovery 6 requests or responses under K.S.A. 60-234 or 60-236, and amendments thereto, shall not be filed 7 except on order of the court or until used in a trial or hearing, at which time the documents shall be 8 filed. 9 (2) A party serving discovery requests or responses under K.S.A. 60-233, 60-234 or 60-236, and 10 amendments thereto, or disclosures of expert testimony under K.S.A. 60-226 and amendments 11 thereto, shall file with the court a certificate stating what document was served, when and upon 12 whom. 13 (3) All other papers filed after the petition and required to be served upon a party, shall be filed 14 with the court either before service or within a reasonable time thereafter. 15 (1) Required filings; certificate of service. Any paper after the petition that is required to 16 be served — together with a certificate of service — must be filed within a reasonable 17 time after service. Only a certificate of service must be filed for expert disclosures under 18 K.S.A. 60-226, and amendments thereto, and the following discovery requests and 19 responses, which must not be filed until they are used in the proceeding or the court 20 orders filing: 21 (A) depositions other than those taken under K.S.A. 60-227, and amendments 22 thereto; 23 (B) interrogatories; 24 (C) requests for documents or tangible things or to permit entry onto land; and 25 (D) requests for admission. 26 (2) How filing is made — in general. A paper is filed by delivering it: 27 (A) to the clerk; or 28 (B) to a judge who agrees to accept it for filing, and who must then note the filing 29 date on the paper and promptly send it to the clerk. 30 (3) Electronic filing, signing, or verification. In accordance with K.S.A. 60-271, and 31 amendments thereto, and supreme court rules, pleadings and other papers may be filed, 32 signed, or verified by electronic means. 9 1 (e) Filing with the court defined. The filing of pleadings and other papers with the court as required 2 by this article shall be made by filing them with the clerk of the court. In accordance with K.S.A. 3 60-271 and amendments thereto and supreme court rules, pleadings and other papers may be filed 4 by telefacsimile communication. The judge may permit the papers to be filed with the judge, in 5 which event the judge shall note thereon the filing date and forthwith transmit them to the office of 6 the clerk. 7 (e) Section not exclusive. The methods of serving and filing pleadings and other papers provided 8 in this section constitute sufficient service and filing but they are alternatives to and do not restrict 9 different methods specifically provided by law. 10 COMMENT 11 The language of K.S.A. 60-205 has been amended as part of the general restyling of the 12 Kansas Code to make it more easily understood and to make style and terminology 13 consistent throughout the Code. 14 K.S.A. 60-205(a)(l)(E) omits the former reference to a designation of record on appeal. 15 Pursuant to a Supreme Court Rule change in 1977, the appellant no longer is required to 16 designate the content of the record. Supreme Court Rule 1.05 specifies that K.S.A. 60-205 17 applies to appeals, and no reference to the record on appeal is necessary in this section. 18 K.S.A. 60-205 was amended to conform more closely with Federal Rule 5, but there are 19 still differences. Rule 5 has been amended to allow electronic service (2001) and electronic 20 filing (2006). Many state court judicial districts do not yet have the technological capability 21 to accept e-filings and the only electronic method currently authorized by supreme court rule 22 is telefacsimile service and filing. New subsection (b)(2)(F) allows service by any electronic 23 means authorized by supreme court rule or a local rule, and “telefacsimile” filing in 24 subsection (d)(3) has been changed to “electronic” filing. These amendments are not 25 intended to be substantive changes to current service and filing methods. Rather, replacing 26 the narrow “telefacsimile” with the broader “electronic” is intended to accommodate future 27 expansion of electronic communication methods authorized by supreme court rule. 28 Subsection (d) was amended to conform to a 2001 amendment to Rule 5(d) that added 29 a requirement for certificates of service. The substance of former subsection (d)(2), which 30 requires filing only a certificate when service of certain discovery requests or responses, or 31 disclosures of expert testimony has occurred, is unique to Kansas and has been retained. 32 Responses to interrogatories no longer must be filed with the court. 33 The first sentence of the former statute, stating that the methods of service and filing 34 provided in the section are not exclusive methods, is unique to Kansas and has been retained 35 as new subsection (e). 10