Opinion
No. 112,248.
2015-03-6
Othel GRAY, Jr., Appellant, v. Jessica FREEMAN, Appellee, and American Cab Co., Defendant.
Appeal from Butler District Court; Michael E. Ward, Judge.Othel Gray Jr., appellant pro se.Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee.
Appeal from Butler District Court; Michael E. Ward, Judge.
Othel Gray Jr., appellant pro se. Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Plaintiff Othel Gray Jr. was injured in a motor vehicle collision on March 24, 2009—a mishap for which he says Defendant Jessica Freeman was responsible. Gray filed a personal injury action against Freeman in Butler County District Court on October 8, 2013. The district court granted Freeman's motion for summary judgment on the grounds Gray filed suit after the 2–year statute of limitations had run. Gray has appealed. We affirm the judgment for Freeman.
Gray has represented himself throughout this litigation. We are, nonetheless, obligated to apply the substantive law and procedural rules to him in the same way we would to a party represented by a lawyer. See Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, Syl. ¶¶ 1–2, 730 P.2d 1109 (1986). That can be a daunting challenge for the legal do-it-yourselfer attempting to navigate civil litigation. So it is here.
After Gray filed his petition and secured service on Freeman, her lawyer duly filed an answer raising the statute of limitations as an affirmative defense. Under K.S.A. 60–513(a)(4), an action to recover for personal injuries resulting from negligence must be filed within 2 years. Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 307, 75 P.3d 1222 (2003). Gray apparently anticipated the statute of limitations issue. In his petition, Gray alleged he had been legally incapacitated within the meaning of K.S.A. 60–515 during some unspecified “relevant times” after the collision. He attached miscellaneous papers to his petition, including a police report and some medical records. As we discuss, an incapacitated person may be afforded some relief from a statute of limitations bar under K.S.A. 60–515.
Freeman then filed a motion for summary judgment, arguing Gray initiated this action more than 2 years after the motor vehicle collision and, therefore, beyond the statute of limitations. Nobody disputes Gray's cause of action accrued the day of the collision, triggering the 2–year period to sue.
Gray filed nothing in opposition to Freeman's motion. In an abundance of caution, the district court directed Freeman to file an amended motion specifically addressing the allegation of incapacity made in Gray's petition. Freeman did so. Again, Gray filed nothing in opposition to the amended motion for summary judgment. The district court granted judgment for Freeman. Gray has appealed.
The issue on appeal is whether the district court properly granted summary judgment.
The standards governing summary judgment are well settled and often recited. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, that there are no disputed issues of material fact and that judgment may, therefore, be entered in his or her favor as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). In short, the movant argues there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. Where, as here, the party requesting summary judgment does so on an issue on which he or she would bear the burden of proof at trial, he or she must furnish sufficient evidence in support of the motion to show entitlement to relief. See Bouton v. Byers, 50 Kan.App.2d 34, 54, 321 P.3d 780 (2014). The party opposing summary judgment must then point to evidence calling into question a material factual representation made in support of the motion. Shamberg, 289 Kan. at 900. If the opposing party does so, the motion should be denied so a factfinder may resolve that dispute.
In addressing a request for summary judgment, the district court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. 289 Kan. at 900. But if a party opposing summary judgment fails to identify evidence disputing a particular factual representation made in support of summary judgment, the district court may treat that fact as admitted for purposes of deciding the motion. See Seitz v. Lawrence Bank, 36 Kan.App.2d 283, 289–90, 138 P.3d 388, rev. denied 282 Kan. 791 (2006); Supreme Court Rule 141 (2014 Kan. Ct. R. Annot. 257). Likewise, a plaintiff opposing summary judgment may not rely on allegations in his or her petition. K.S.A. 60–256(e)(2); Carr v. Vannoster, 48 Kan.App.2d 19, 21, 281 P.3d 1136 (2012).
An appellate court applies the same standards, so we are guided by those rules here.
Freeman properly supported her original motion for summary judgment simply by directing the district court's attention to Gray's petition. The district court could take judicial notice of the filing itself. In the petition, Gray alleged the motor vehicle collision happened on March 24, 2009. Although Gray cannot rely on the petition to resist summary judgment, Freeman may properly treat the representations in the petition as admissions binding on Gray for that purpose. See Official Committee v. Coopers & Lybrand, 322 F.3d 147, 167 (2d Cir.2003) (parties cannot contradict their own pleadings; “plaintiff can plead himself out of court by alleging facts which show he has no claim”); American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988) (recognizing allegations of pleading to be admissions binding on filing party). In addition, the district court could take notice of the date Gray filed the petition. Those facts sufficiently support Freeman's motion for summary judgment on the grounds the statute of limitations had run before Gray filed suit.
The district court could have-and properly should have-granted summary judgment on that factual showing in the absence of any response from Gray to Freeman's motion. As K.S.A. 60–256(e)(2) specifically states, the allegations in a party's own pleading are insufficient to defeat an otherwise properly supported motion for summary judgment. Gray had the obligation to present admissible evidence establishing at least a colorable claim to relief from the statute of limitations. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). Gray's reference to K.S.A. 60–515 in the petition didn't satisfy that requirement.
The evidentiary record after Freeman filed her amended motion also warranted summary judgment. As we have noted, Gray filed nothing in opposition to the amended motion. On that basis alone, there was no evidence properly before the district court to suggest Gray was an incapacitated person within the scope of K.S.A. 60–515. Freeman, therefore, remained entitled to summary judgment.
To take advantage of K.S.A. 60–515, a plaintiff must show that he or she was incapacitated when a claim accrued or became incapacitated during the limitations period. If so, the plaintiff may file an action within 1 year after he or she is no longer incapacitated. K.S.A. 60–515(a). For purposes of K.S.A. 60–515, an “incapacitated person” is defined as set forth in K.S.A.2013 Supp. 77–201, Thirty-first:
“[A]n individual whose ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired to the degree that the person lacks the capacity to manage the person's estate, or to meet essential needs for the person's physical health, safety or welfare, as defined in K.S.A. 59–3051, and amendments thereto, whether or not a guardian or a conservator has been appointed for that person.”
See Martin v. Naik, 297 Kan. 241, 260–61, 300 P.3d 625 (2013). The definition is relatively narrow in that it is limited to someone who lacks the mental capacity to manage his or her affairs and, thus, would not include a person with some degree of physical limitation. For example, a person with a broken leg might be thought of as temporarily incapacitated in some broad sense but clearly would not come within the scope of K.S.A.2013 Supp. 77–201, Thirty-first, and, in turn, K.S.A. 60–515.
Gray submitted no evidence, such as affidavits or properly authenticated documents, addressing his claimed incapacity. Even considering the papers he attached to his petition, Gray failed to suggest a basis for relief under K.S.A. 60–515. Some of the medical reports indicate Gray suffered a stroke in mid-May 2012. Those reports do not show that he was incapacitated by the stroke for purposes of K.S.A. 60–515. In addition, the stroke happened more than a year after the statute of limitations had expired on any claim arising from the motor vehicle collision. So Gray's condition as a result of the stroke would not have excused his failure to timely file an action against Freeman. Other papers attached to the petition appear to reflect medical or chiropractic care Gray received after the motor vehicle collision and before his stroke. But those documents do not in any way indicate he was incapacitated within the meaning of K.S.A. 60–515.
To sum up, Gray did not file this action within the 2–year time limit required by K.S.A. 60–513(a)(4), and nothing presented to the district court indicates that limit should have been excused because Gray was incapacitated during that 2–year period. The district court properly granted summary judgment to Freeman.
Affirmed.