Johnsrud Transport v. McDonald's Restaurants of Kansas

1

NOT DESIGNATED FOR PUBLICATION

No. 119,857

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHNSRUD TRANSPORT, INC.,
Appellee,

v.

MCDONALD'S RESTAURANTS OF KANSAS, INC.; PHILLIPS 66 COMPANY;
CAREY JOHNSON OIL COMPANY, INC., D/B/A EZ GO STORE #75;
AND KANSAS TURNPIKE AUTHORITY,
Appellants.


MEMORANDUM OPINION

Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed August 23, 2019.
Affirmed.

Jennifer M. Hill, of McDonald Tinker PA, of Wichita, Andrew D. Holder, of Fisher Patterson
Salyer & Smith, LLP, of Topeka, Penny A. Calhoun, of Wallace Saunders, Chartered, of Wichita, and
Jenifer W. Svancara, of Law Office of Paul D. Larimore, of Overland Park, for appellants.

Aaron J. Racine, of Monaco, Sanders, Racine, Powell & Reidy, LC, of Leawood, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: This is an interlocutory appeal by defendants McDonald's
Restaurants of Kansas, Inc.; Phillips 66 Company; Carey Johnson Oil Company, Inc.
d/b/a EZ Go Store #75; and the Kansas Turnpike Authority. They are four of the five
defendants named in an untimely petition filed by Johnsrud Transport, Inc. (Johnsrud).
The fifth, Kansas Department of Wildlife, Parks and Tourism, has not joined in this
appeal. Defendants moved to dismiss the case based on Johnsrud's failure to meet the
2

statute of limitations. But the district court applied the unique circumstances doctrine,
excusing Johnsrud's untimely petition. It denied the motions to dismiss and we granted an
interlocutory appeal. We find no error in the district court's decision.

Factual and Procedural Background

Johnsrud alleges that on December 28, 2015, its employee was injured in a slip
and fall in the course of his employment at the Interstate 35 Belle Plaine Service Area in
Sumner County, a property allegedly owned or controlled by the appellants. The fall
apparently occurred outside and the facts have not established which, if any, of the
defendants controlled the area in which the fall occurred. The employee made a workers
compensation claim against Johnsrud under the workers compensation laws of Iowa.
Johnsrud then filed a workers compensation third-party subrogation action against the
appellants to recover its costs as the assignee of the employee's negligence claims under
K.S.A. 44-504(c).

But Johnsrud had some trouble doing so. On December 28, 2017, the last day of
the applicable statute of limitations, Johnsrud's counsel, Aaron Racine, tried to file his
petition through the Kansas eFlex electronic filing system. At 4:13 p.m., the eFlex system
failed to load counsel's wallet account and rejected the filing. Racine resubmitted the
petition at 4:37 p.m. through the eFlex portal and paid the required filing fee using his
wallet account. His petition was thus "received" by the Sumner County District Court
Clerk.

But his petition was not "accepted," and a pleading is not filed until it is accepted.
The next day, the Sumner County District Court Clerk's office informed Racine that his
petition had been rejected "because unacceptable punctuation had been used in the party
information input screens of the eFlex portal." The clerk's office did not specify what
punctuation was unacceptable, or which party's information was problematic, but Racine
3

understood he had entered some punctuation somewhere in the name fields that the clerk
would not accept. The clerk's office told Racine he needed to resubmit the petition as a
new filing despite Racine's expressed concerns about the statute of limitations. Racine
later received an email from the Deputy Clerk of the Sumner County District Court
stating it had rejected the petition "due to clerical errors." Still, it did not specify which
clerical errors had occurred or where those errors were.

Racine then removed all punctuation from all parties' information input screens
and again tried to file the same petition using the eFlex system. This filing was received
and accepted, and thus filed, on December 29, 2017, one day after the statute of
limitations had run.

The appellants moved to dismiss, asserting the action had not been timely
commenced. At the hearing on the motions to dismiss the court asked Racine about the
rejection of his petition:

"MR. RACINE: My conversation with [the Sumner County District Court Clerk]
on December 29th, she did not indicate specifically what punctuation problems there
were when she said that the case had been rejected for those fields having punctuation.
As the court is aware, multiple defendants in this case, corporate entities, and
there were apostrophes, hyphens—
"THE COURT: Inc period.
"MR. RACINE: Inc period.
"THE COURT: You can't put that in the fields.
"MR. RACINE: She didn't—she—she wasn't specific so, to—to defense
counsel's point, I still don't know. What I did when I re-filed was I took out all
punctuation, all the hyphens, no apostrophes, no periods, no commas, when I reentered it
on the 29th, and then it was accepted. So she didn't specifically tell me what was
unacceptable. Just that there was punctuation in those fields that they wouldn't accept.
"THE COURT: And why did you have punctuation in those fields?
4

"MR. RACINE: Because that's the way the parties were. I mean, that was [their]
name. McDonald's has a—when you go to the secretary of state's website it has a comma
in the name. EZ GO has, you know, hyphens or slashes in it. So we just followed
whatever we pulled up from their—from their corporate filings. And—And I should look
at that. I don't want to say that for sure, but we—we did file whatever their corporate
names were listed as in those—in those data fields."

After hearing arguments from counsel, the district court denied appellants' motions
to dismiss. It ruled that although the statute of limitations had expired before Johnsrud's
petition was accepted and filed by the court, the unique circumstances doctrine excused
that untimely filing.

Four of the five defendants appealed. The district court held that the criteria in
K.S.A. 2018 Supp. 60-2102(c) were met, allowing an interlocutory appeal. We granted
appellants' application for interlocutory review.

Did the District Court Err by Applying the Unique Circumstances Doctrine?

The sole issue on appeal is whether the district court erred by applying the unique
circumstances doctrine. "Our determination of both the viability and applicability of the
unique circumstances doctrine involves questions of law, over which this court has
unlimited review." Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan.
107, 113, 260 P.3d 387 (2011).

Analysis

Neither party disputes that the statute of limitations ran before the date Johnsrud's
petition was accepted and thus filed. And neither party seems to argue that the unique
circumstances doctrine is generally unavailable. The doctrine essentially provides that a
5

party equitably may be excused from a time bar if the party has been affirmatively misled
about the applicable law in a ruling by a court or an administrative agency or by the
actions of a related state actor such as a court clerk. Board of Sedgwick County Comm'rs,
293 Kan. at 113-15 (tracing development of unique circumstances doctrine). Under this
doctrine, district courts may excuse an otherwise untimely filing when "unique
circumstances" are present. Nguyen v. IBP, Inc., 266 Kan. 580, 586-87, 972 P.2d 747
(1999). This doctrine is limited in scope and applies only where nonparty error causes the
untimely filing. Finley v. Estate of DeGrazio, 285 Kan. 202, 211, 170 P.3d 407 (2007).

Equitable exceptions like the unique circumstances doctrine do not apply to
subject matter jurisdictional issues such as appellate filing deadlines. Board of Sedgwick
County Comm'rs, 293 Kan. at 120. But the doctrine remains viable to save a cause of
action from being dismissed on statute of limitations grounds. See Woods v. Unified
Gov't of Wyandotte County/KCK, 294 Kan. 292, 298-99, 275 P.3d 46 (2012); Board of
Sedgwick County Comm'rs, 293 Kan. 107, Syl. ¶ 3; Mangus v. Stump, 45 Kan. App. 2d
987, 997, 260 P.3d 1210 (2011). That is the case here. We agree that the unique
circumstances doctrine could be applied as an equitable remedy to prevent the statute of
limitations from barring a petition in this kind of case, and under the specific facts of this
case.

Did the District Court Find Nonparty Error?

The appellants argue that the district court made no finding of nonparty error. We
disagree.

Although the district court was reluctant to pin any error on its clerk, the district
court voiced its understanding that some error was needed to apply the unique
circumstances doctrine. It explained:

6

"I think the statute of limitations bars it, but I'm going to go ahead and—and rule against
[the appellants] based on unique circumstances. I don't think that it was the party's error.
Put it that way. If anything, it's—it's an error in the—in the judiciary application of this
new system that—that could [have] gone either way here depending on which way this
clerk was going to do things. So I'm denying the motion to—the motions to dismiss."

The district court thus found that the doctrine applied and that it was not "the party's
error." Instead, it attributed error to "the judiciary application of this new system that—
that could [have] gone either way here depending on which way this clerk was going to
do things." This language confirms that the district court's efiling system was new. It
suggests that the clerk may have had discretion to accept the first petition, even with the
prohibited punctuation. And it finds that nonparty error caused the untimely filing.
Because the district court applied the unique circumstances to a situation involving a
nonparty error, we find no error of law.

Did the District Court Err in Finding Nonparty Error?

We next address appellants' claim that Racine's own error caused the clerk's office
to reject his petition. Appellants contend that Johnsrud failed to prove that the clerk's
rejection of his petition stemmed from nonparty error. Johnsrud counters that the clerk's
rejection of its petition was a nonparty error, as it was "based upon the use of unspecified
punctuation in the party information input screen prohibited by a restriction not set forth
in any rules of the Supreme Court, Sumner County District Court, or Kansas Judicial
Branch." We agree.

Racine sought to file his petition within the appropriate statute of limitations and
was unaware until the following day that the filing had been rejected. The filing was
rejected because of an unspecified use of punctuation in the party information input
screen. Although we do not know which period, comma, hyphen, or apostrophe was
present yet should not have been, we do know that Racine had typed the defendants'
7

names into the proper fields with the standard punctuation typically used in each party's
legal name.

Although we do not have a document showing the party name fields that Racine
sent and the clerk rejected, we have counsel's word that he entered the parties' standard
corporate names, complete with punctuation, in those fields. Counsel is an officer of the
court. We find his word sufficient to remove the facts from the realm of mere
speculation. Thus:

 Racine entered an apostrophe, a comma, and a period for defendant "McDonald's
Restaurants of Kansas, Inc.";
 Racine entered commas, a period, slashes, and the number symbol for defendant
"Carey Johnson Oil Company, Inc., D/B/A EZ Go Store #75"; and
 Racine entered a comma for defendant "Kansas Department of Wildlife, Parks and
Tourism."

Did Racine err in not knowing that some or all of this punctuation was prohibited
in the party name fields he had to complete to efile his petition? We think not, based on
our review of the published rules regarding efiling, generally, and punctuation,
specifically. Racine contends that the Thirtieth District had no published information
about punctuation in efiling —nothing on its website, no local rules. That has not been
refuted. He admits he had access to two published documents: Supreme Court Rule 122
(2019 Kan. S. Ct. R. 201); and the "Data Entry Rules for Filers – Civil Parties," which is
guidance to electronic filers and is available online through the Kansas Judicial Branch at
http://www.kscourts.org/Cases-and-Opinions/e-filing/Civil-Data-Entry-Rules-
forAttorneys%20030613.pdf. We find no other published rules relevant to this issue.
Kansas Supreme Court Administrative Order No. 268, effective October 22, 2012,
addresses technical standards governing electronic filing and transmission of court
documents but does not speak to punctuation.
8

Nor does Rule 122 address punctuation in entering party names into the system.
Instead, it generally states:

"(g) Standard Operating Procedures. The judicial administrator is authorized to
adopt standard operating procedures consistent with this rule to facilitate the process of
electronic filing in district courts. In developing these procedures, the judicial
administrator will consult with stakeholders, as appropriate." (2019 Kan. S. Ct. R. 203).

The Data Entry Rules for Filers on the Kansas Judicial Branch website are more
specific and speak to some punctuation when entering party names. But they do not
prohibit all punctuation when entering corporate party names, as did the clerk here. The
rules more specifically address the use of punctuation when a party is an individual, but
not when a party is a company. The rules are not clear as to the required or prohibited
punctuation to use when entering a corporate party in a name field. Instead, they require
punctuation in some instances, and do not prohibit it in others.

The Data Entry Rules for Filers do not speak to punctuation in first names. For
middle names that use only an initial, the rules state "do not use a . (period)" and for a
name suffix, "[e]nter the suffix using no punctuation." But the defendants are corporate
and Racine entered no party information with a middle initial or a name suffix, so those
punctuation rules did not apply. As to last names, the rule states: "Type the name exactly
how it is." Racine did so, yet his petition was rejected. The rules expressly add, as to last
names, "For names with apostrophe, use apostrophe (no spaces) Example: O'Malley." A
reasonable reader of the rules would thus use an apostrophe for "McDonald's," assuming
it is a last name. If it is a first name, no punctuation rules are stated. The rules also list
common abbreviations, but the abbreviations relate to addresses and do not include "Inc."
or other common corporate party abbreviations. See Data Entry Rules for Filers – Civil
Parties, http://www.kscourts.org/Cases-and-Opinions/e-filing/Civil-Data-Entry-Rules-
forAttorneys%20030613.pdf (last visited Aug. 6, 2019).

9

The published rules thus do not prohibit the standard punctuation used in the party
defendants' names. Instead, they tell the filer to "type the name exactly how it is." Racine
did so yet the clerk rejected his petition because of punctuation that normally occurs in
the defendants' legal names. We find substantial competent evidence supporting the
district court's determination that Racine made no error that caused his initial petition to
be rejected. The delay in filing the case was attributable to an error by the clerk of the
district court in enforcing rules it had not published, giving the filer no clear notice of
what was required.

Do the Equities Warrant Application of the Unique Circumstances Doctrine?

The unique circumstances doctrine considers the nonparty error, whether the
party's conduct affected the nonparty error, and whether the party reasonably relied on the
nonparty's action. The unique circumstances doctrine "depends upon such concepts as
equity, the interests of justice, good faith, estoppel, or nonparty error." Finley, 285 Kan.
at 209. Recently, the Kansas Supreme Court excused the untimely filing of a will when a
will was delivered to the court, the court erroneously informed the heirs that it did not
have possession of the will, and then the clerk found the will after the limitation period
for petitioning a will for probate had passed. In re Estate of Oroke, No. 116,333, 2019
WL 3516045, at *6 (Kan. 2019). The Supreme Court applied the unique circumstances
doctrine because the clerk of the district court failed to remember or to follow the clear
edict of the Legislature and the Supreme Court, the heirs acted in good faith, the heirs had
a reasonable basis as to why they did not comply with the time restrictions, and the
prejudice resulting from enlarging the time limitation was small, whereas the injustice to
the heirs from not enlarging the time would be great. Similarly, in Mangus, we found
plaintiff's cause of action was not barred by the statute of limitations because plaintiff's
counsel asked for an extension of time for service, made no misrepresentations to the
court, and then relied in good faith on the district court's extension. 45 Kan. App. 2d at
999-1000. On the other hand, in Finley, counsel's untrue representations to the court in
10

securing a 30-day extension of time for service of process prevented application of the
unique circumstances doctrine. 285 Kan. at 209.

The unique circumstances doctrine "seems to require a demonstration of good
faith on the part of the party seeking an enlargement of time to appeal and a reasonable
basis for noncompliance within the time specified by the rules," and courts should use
these two concepts to guide its application of the doctrine. Slayden v. Sixta, 250 Kan. 23,
30, 825 P.2d 119 (1992). Racine acted in good faith by relying on the published rules
regarding efiling and by complying with their stated punctuation requirements while
trying to efile his petitions. He showed a reasonable basis for noncompliance by inserting
the party names exactly how they were legally named, as the rules appear to require.
Those determinations are supported by the evidence of record we summarized above. His
client would be greatly prejudiced if the time is not extended by one day, but no prejudice
to appellants by extending the time limit has been shown.

The district court carefully weighed the equities and found that application of the
unique circumstances doctrine served the interests of justice. We agree. The law prefers
that cases be decided on their merits rather than on technical compliance with procedural
rules. See Fisher v. DeCarvalho, 298 Kan. 482, 500, 314 P.3d 214 (2013); Bazine State
Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989) (In
determining whether to set aside default judgment, a court should resolve any doubt in
favor of the motion so that cases may be decided on their merits.).

"The unique circumstances doctrine is one this court uses sparingly. However,
neither the Legislature in repealing K.S.A. 59-620, nor this court in enacting Supreme
Court Rule 108(e)(4)(A), intended that an error by a judicial employee should be
inconsequential as to the statute of limitations. Equitably tolling the statute of limitations
provides a realistic and fair remedy for an unusual situation not contemplated by the
statutory scheme." Oroke, 2019 WL 3516045, at *8.
11

Similarly, we find that litigants should not be unnecessarily penalized for their attorney's
informed and good-faith attempt to timely efile a petition under the circumstances shown
here.

Based on the unusual facts not contemplated by our rules or statutes, and
considering the guiding concepts set forth above, we hold that the district court did not
err by applying the unique circumstances doctrine. Accordingly, the district court
properly denied appellants' motions to dismiss.

Affirmed.