Session of 2000
Effective: July 1, 2000
HOUSE BILL No. 2905
An Act concerning civil procedure; service of process; providing
notice for certain liens;
depositions; service of process; worthless
checks; amending K.S.A. 17-1642, 60-303, 60-
308, 60-1103, 60-2611, 61-1803 and 61-1807 and
K.S.A. 1999 Supp. 60-228, 60-312 and
60-2610 and repealing the existing
sections.
Be it enacted by the Legislature of the
State of Kansas:
Section 1. K.S.A. 17-1642 is hereby
amended to read as follows: 17-
1642. (a) Except as provided in subsection (j), the association or
corpo-
ration surviving or resulting from any merger or consolidation,
within 10
days after the effective date of the merger or consolidation, shall
notify
each member or stockholder of any association or corporation of
this state
so merging or consolidating who objected thereto in writing and
whose
shares either were not entitled to vote or were not voted in favor
of the
merger or consolidation, and who filed such written objection with
the
association or corporation before the taking of the vote on the
merger or
consolidation, that the merger or consolidation has become
effective. If
any such member or stockholder, within 20 days after the date of
mailing
of the notice, shall demand in writing, from the association or
corporation
surviving or resulting from the merger or consolidation, payment of
the
value of the member's or stockholder's interest, the surviving or
resulting
association or corporation shall pay to the member or stockholder,
within
30 days after the expiration of the period of 20 days, the value of
the
member's or stockholder's interest on the effective date of the
merger or
consolidation, exclusive of any element of value arising from the
expec-
tation or accomplishment of the merger or consolidation.
(b) If during a period of 30 days
following the period of 20 days
provided for in subsection (a), the association and any such member
or
stockholder fail to agree upon the value of such member's or
stockholder's
interest, any such member or stockholder, or the association or
corpo-
ration surviving or resulting from the merger or consolidation, may
de-
mand a determination of the value of the member's or stockholder's
in-
terest by an appraiser or appraisers to be appointed by the
district court,
by filing a petition with the court within four months after the
expiration
of the thirty-day period.
(c) Upon the filing of any such petition
by a member or stockholder,
service of a copy shall be made upon the surviving association or
corpo-
ration, which shall file with the clerk of the district court,
within 10 days
after such service, a duly verified list containing the names and
addresses
of all members or stockholders who have demanded payment for
such
member's or stockholder's interest and with whom agreements as to
the
value of such member's or stockholder's interest have not been
reached
by the association or corporation. If the petition is filed by the
surviving
association or corporation, the petition shall be accompanied by
such duly
verified list. The surviving association or corporation shall give
notice of
the time and place fixed for the hearing of such petition pursuant
to
subsection (b) (c) of K.S.A. 60-303, and
amendments thereto, to the
members or stockholders shown upon the list at the addresses
therein
stated and notice shall also be given by publishing a notice at
least once,
at least one week before the day of the hearing, in a newspaper of
general
circulation in the county in which the district court is located.
The court
may direct such additional publication of notice as the court deems
ad-
visable. The forms of the notices by mail and by publication shall
be
approved by the court.
(d) After the hearing on the petition the
court shall determine the
members or stockholders who have complied with the provisions of
this
section and become entitled to the valuation of and payment for
such
member's or stockholder's interest, and shall appoint an appraiser
or ap-
praisers to determine such value. The appraiser or appraisers may
ex-
amine any of the books and records of the associations or
corporations
the stock of which such appraiser or appraisers is charged with the
duty
of valuing, and following an investigation, the appraiser or
appraisers shall
make a determination of the value of the member's or stockholder's
in-
terest. The appraiser or appraisers shall also afford a reasonable
oppor-
tunity to the parties interested to submit to the appraiser or
appraisers
pertinent evidence on the value of the member's or stockholder's
interest.
The appraiser or appraisers, also, shall have the powers and
authority
conferred upon masters by K.S.A. 60-253, and amendments
thereto.
(e) The appraiser or appraisers shall
determine the value of the stock
of the members or stockholders adjudged by the district court to be
en-
titled to payment therefor and shall file a report respecting such
value in
the office of the clerk of the district court, and notice of the
filing of such
report shall be given by the petitioners to the parties in
interest. Such
report shall be subject to exceptions to be heard before the court
both
upon the law and facts. The court by decree shall determine the
value of
the stock of the members or stockholders entitled to payment and
shall
direct the payment of such value, together with interest, if any,
to the
members or stockholders entitled by the surviving or resulting
corpora-
tion. Upon payment of the judgment by the surviving or resulting
cor-
poration, the clerk of the district court shall surrender to the
surviving
association or corporation the certificates of shares of stock held
by the
clerk pursuant to subsection (f). The decree may be enforced as
other
judgments of the district court may be enforced, whether such
surviving
or resulting association be an association of this state or of any
other state.
(f) At the time of appointing the
appraiser or appraisers, the court
shall require the members or stockholders who hold certificated
shares
and who demanded payment for the shares to submit the certificates
of
stock to the clerk of the court, to be held by the clerk pending
the ap-
praisal proceedings. If any member or stockholder fails to comply
with
such direction, the court shall dismiss the proceedings as to such
member
or stockholder.
(g) The cost of any such appraisal,
including reasonable fees and ex-
penses of the appraiser or appraisers, but exclusive of fees of
counsel or
of experts retained by any party, shall be determined by the court
and
taxed upon the parties to such appraisal or any of them as appears
to be
equitable, except that the cost of giving the notice by publication
and by
certified mail shall be paid by the surviving association or
corporation.
Postjudgment interest, if any, shall be in accordance with K.S.A.
16-204,
and amendments thereto, to be paid upon the value of the stock of
the
members or stockholders entitled thereto.
(h) Any member or stockholder who has
demanded payment of the
member's or stockholder's interest as herein provided shall not
thereafter
be entitled to vote such member's or stockholder's stock for any
purpose
or be entitled to the payment of dividends or other distribution on
such
stock, except dividends or other distributions payable to members
or
stockholders of record at a date which is prior to the effective
date of the
merger or consolidation, unless the appointment of an appraiser or
ap-
praisers shall not be applied for within the time herein provided,
or the
proceeding be dismissed as to such member or stockholder, or
unless
such member or stockholder with the written approval of the
surviving
association or corporation shall deliver to the association or
corporation
a written withdrawal of the member's or stockholder's objections to
and
an acceptance of the merger or consolidation, in any of which cases
the
right of such member or stockholder to payment for the member's
or
stockholder's interest shall cease.
(i) The shares of the surviving or
resulting association or corporation
into which the shares of such objecting members or stockholders
would
have been converted had they assented to the merger or
consolidation
shall have the status of authorized and unissued shares of the
surviving
or resulting association or corporation.
(j) This section shall not be applicable
to the members, stockholders
or other holders of equity securities of the surviving association
or cor-
poration in any merger where the active members of the surviving
asso-
ciation or corporation continue to be eligible to be members of the
sur-
viving association or corporation after the merger and the
agreement of
merger does not amend the articles of incorporation, and shall not
apply
to the members, stockholders or other holders of equity securities
of the
constituent association or corporation not surviving the merger in
any
merger where the active members of such constituent association or
cor-
poration are eligible to become members of the surviving
association or
corporation on the same terms and conditions as other similarly
classified
members of the surviving association or corporation.
Sec. 2. K.S.A. 1999 Supp. 60-228 is
hereby amended to read as fol-
lows: 60-228. (a) Within the United States. (1) Depositions
may be taken
in this state before any officer or person authorized to administer
oaths
by the laws of this state.
(2) Without the state but within the
United States, or within a terri-
tory or insular possession subject to the dominion of the United
States,
depositions shall be taken before an officer authorized to
administer oaths
by the laws of the place where the examination is held, or before a
person
appointed by the court in which the action is pending. A person so
ap-
pointed has power to administer oaths and take testimony.
(3) Any court of record of this state, or
any judge thereof, before
whom an action or proceeding is pending, is authorized to grant a
com-
mission to take depositions within or without the state. The
commission
may be issued by the clerk to a person or persons therein named,
under
the seal of the court granting the same.
(b) In foreign countries.
Depositions may be taken in a foreign coun-
try:
(1) Pursuant to any applicable treaty or
convention;
(2) pursuant to a letter of request,
whether or not captioned a letter
rogatory;
(3) on notice before a person authorized
to administer oaths in the
place where the examination is held, either by the law of the
United States
or the law of that place;
(4) before a person appointed by
commission. A person appointed by
commission has power by virtue of the appointment to administer
oaths
and take testimony. A commission or letter of request shall be
issued on
application and notice, and on terms and directions that are just
and
appropriate. It is not requisite to the issuance of a commission or
a letter
of request that the taking of the deposition in any other matter is
im-
practicable or inconvenient; and both a commission and letter of
request
may be issued in proper cases. A notice or commission may designate
the
person before whom the deposition is to be taken either by name
or
descriptive title. A letter of request may be addressed "To the
Appropri-
ate Judicial Authority in (here name the country)." When a letter
of re-
quest or any other device is used pursuant to an applicable treaty
or
convention, it shall be captioned in the form prescribed by that
treaty or
convention. Evidence obtained in response to a letter of request
shall not
be excluded on the ground that it is not in the form of questions
and
answers or is not a verbatim transcript of the testimony.
(c) Disqualification for
interest. No deposition shall be taken before
a person who is: (1) A relative or,
employee or, attorney or counsel of any
of the parties, or is; (2) a relative or
employee of such attorney or counsel,
or is; (3) financially interested in the
action; or (4) not certified as a cer-
tified shorthand reporter by the Kansas supreme court.
(d) Depositions for use in foreign
jurisdictions. Whenever the depo-
sition of any person is to be taken in this state pursuant to the
laws of
another state or of the United States or of another country for use
in
proceedings there, the district court in the county where the
deponent
resides or is employed or transacts his or her business in person
may,
upon ex parte petition, make an order directing issuance of
subpoena as
provided in K.S.A. 60-245, and amendments thereto, in aid of
the taking
of the deposition, and may make any order in accordance with
subsection
(d) of K.S.A. 60-230, subsection (a) of K.S.A. 60-237 or subsection
(b)(1)
of K.S.A. 60-237 and amendments thereto.
Sec. 3. K.S.A. 60-303 is hereby
amended to read as follows: 60-303.
(a) Methods of service of process within this state, except service
by pub-
lication as provided in K.S.A. 60-307, and amendments thereto, are
de-
scribed in this section. Methods of out-of-state service of process
are
described in K.S.A. 60-308, and amendments thereto.
(b) Who serves process. The sheriff of
the county in which the action
is filed shall serve any process by any method authorized by
this section,
or as otherwise provided by law, unless a party, either
personally or
through an attorney, elects to undertake responsibility for
service and so
notifies the clerk.
(c) Service by
certified mail. Except if the
attorney for the party or
the party, if the party is not represented by an attorney,
requests personal
or residence service pursuant to subsection (c); if the
attorney or the party
requesting service elects to serve process by certified
mail pursuant to
this subsection; as provided in K.S.A. 60-903, 60-2401 or
60-3104, and
amendments thereto; or as otherwise provided by law, the
sheriff of the
county wherein the action is filed shall serve any process
by certified mail,
evidenced by return receipt signed by any person or by
restricted delivery,
unless otherwise permitted by this article.
return receipt delivery. (1)
Service of process by return receipt delivery shall include
service effected
by certified mail, priority mail, commercial courier service,
overnight de-
livery service, or other reliable personal delivery service to
the party ad-
dressed, in each instance evidenced by a written or electronic
receipt
showing to whom delivered, date of delivery, address where
delivered,
and person or entity effecting delivery.
(2) The sheriff, attorney
for the party seeking service or the party, if
the party is not represented by an attorney,
party, or party's attorney
shall cause a copy of the process and petition or other document to
be
placed in an a sealed envelope addressed to
the person to be served in
accordance with K.S.A. 60-304, and amendments thereto,
adequate post-
age to be affixed and the sealed envelope to be placed in
the United
States mail as certified mail return receipt requested with
instructions to
the delivering postal employee to show to whom delivered,
date of deliv-
ery, and address where delivered. The with
postage or other delivery fees
prepaid, and the sealed envelope placed in the custody of the
person or
entity effecting delivery.
(3) Service of process shall be
considered obtained under K.S.A. 60-
203, and amendments thereto, upon the delivery of the sealed
envelope.
(4) After service and return of the
return receipt, the sheriff, party
or party's attorney or the party, if the party is
not represented by an
attorney, shall execute a return on service
stating the nature of the pro-
cess, to whom delivered, the date on which the
process was mailed, and
the name and address on the envelope containing the process
mailed as
certified mail return receipt requested. The sheriff, party
or the party's
attorney shall file the return on service and the return
receipt or return
envelope in the records of the action. Service of process
shall be consid-
ered obtained under K.S.A. 60-203, and amendments thereto,
upon the
delivery of the certified mail envelope of
delivery, the address where
delivered and the person or entity effecting delivery.
The original return
of service shall be filed with the clerk, along with a copy of
the return
receipt evidencing such delivery.
(5) If the certified
mail sealed envelope is returned with an
endorse-
ment showing refusal of to accept delivery,
the sheriff, serving party or
the party's attorney shall may send a copy
of the process and petition or
other document to be served to the defendant by
ordinary, by first-class
mail. The mailing shall be evidenced by a certificate of
mailing which
shall be filed with the clerk. Service
addressed to the party to be served,
or may elect other methods of service. If mailed, service
shall be consid-
ered obtained upon three days after the
mailing by ordinary, first-class
mail. Failure, postage prepaid, which shall be
evidenced by a certificate
of service filed with the clerk. If the unopened envelope sent
first-class
mail is returned as undelivered for any reason, the sheriff,
party or party's
attorney shall file an amended certificate of service with the
clerk indi-
cating nondelivery, and service by such mailing shall not be
considered
obtained. Mere failure to claim certified mail
service return receipt deliv-
ery is not refusal of service within the meaning of this
subsection.
(c)
(d) Personal and residence service. (1)
When The plaintiff files
party may file a written request with the clerk for
service other than by
certified mail, service of process shall be made
by personal or residence
service. Personal service shall be made by delivering or offering
to deliver
a copy of the process and accompanying documents to the person to
be
served. Residence service shall be made by leaving a copy of the
process
and petition, or other document to be served, at the dwelling house
or
usual place of abode of the person to be served with some person
of
suitable age and discretion residing therein. If service cannot be
made
upon an individual, other than a minor or a disabled person, by
personal
or residence service, service may be made by leaving a copy of the
process
and petition, or other document to be served, at the defendant's
dwelling
house or usual place of abode and mailing a notice that such copy
has
been left at such house or place of abode to the individual by
first-class
mail.
(2) When process is to be served under
this subsection, the clerk of
the court shall deliver the process and sufficient copies of the
process and
petition, or other document to be served, to the sheriff of the
county
where the process is to be served or, if requested, to a person
appointed
to serve process or to the plaintiff's attorney.
(3) Service, levy and execution of all
process under this subsection,
including, but not limited to, writs of execution, orders of
attachment,
replevin orders, orders for delivery, writs of restitution and
writs of assis-
tance, shall be made by a sheriff within the sheriff's county, by
the sheriff's
deputy, by an attorney admitted to the practice of law before the
supreme
court of Kansas or by some person appointed as a process server by
a
judge or clerk of the district court, except that a subpoena may
also be
served by any other person who is not a party and is not less than
18 years
of age. Process servers shall be appointed freely and may be
authorized
either to serve process in a single case or in cases generally
during a fixed
period of time. A process server or an authorized attorney may make
the
service anywhere in or out of the state and shall be allowed the
fees
prescribed in K.S.A. 28-110, and amendments thereto, for the
sheriff and
such other fees and costs as the court shall allow. All persons
authorized
under this subsection to serve, levy and execute process shall be
consid-
ered an "officer" as used in K.S.A. 60-706 and 60-2401 and
amendments
thereto.
(4) In all cases when the person to be
served, or an agent authorized
by the person to accept service of process, refuses to receive
copies
thereof, the offer of the duly authorized process server to deliver
copies
thereof, and the refusal, shall be a sufficient service of the
process.
(d)
(e) Acknowledgment or appearance. An
acknowledgment of serv-
ice on the summons is equivalent to service. The voluntary
appearance
by a defendant is equivalent to service as of the date of
appearance.
Sec. 4. K.S.A. 60-308 is hereby
amended to read as follows: 60-308.
(a) Proof and effect. (1) Service of process may be made
upon any party
outside the state. If upon a person domiciled in this state or upon
a person
who has submitted to the jurisdiction of the courts of this state,
it shall
have the force and effect of service of process within this state;
otherwise
it shall have the force and effect of service by publication.
(2) The service of process shall be made
(A) in the same manner as
service within this state, by any officer authorized to make
service of
process in this state or in the state where the defendant is served
or (B)
by sending a copy of the process and of the petition or other
document
to the person to be served in the manner provided in subsection
(e). No
order of a court is required. An affidavit, or any other competent
proofs,
of the server shall be filed stating the time, manner and place of
service.
The court may consider the affidavit, or any other competent
proofs, in
determining whether service has been properly made.
(3) No default shall be entered until the
expiration of at least 30 days
after service. A default judgment rendered on service outside this
state
may be set aside only on a showing which would be timely and
sufficient
to set aside a default judgment under subsection (b) of K.S.A.
60-260,
and amendments thereto.
(b) Submitting to
jurisdiction--process. Any person, whether or not
a citizen or resident of this state, who in person or through an
agent or
instrumentality does any of the acts hereinafter enumerated,
thereby sub-
mits the person and, if an individual, the individual's personal
represen-
tative, to the jurisdiction of the courts of this state as to any
cause of
action arising from the doing of any of these acts:
(1) Transaction of any business within
this state;
(2) commission of a tortious act within
this state;
(3) ownership, use or possession of any
real estate situated in this
state;
(4) contracting to insure any person,
property or risk located within
this state at the time of contracting;
(5) entering into an express or implied
contract, by mail or otherwise,
with a resident of this state to be performed in whole or in part
by either
party in this state;
(6) acting within this state as director,
manager, trustee or other of-
ficer of any corporation organized under the laws of or having a
place of
business within this state or acting as executor or administrator
of any
estate within this state;
(7) causing to persons or property within
this state any injury arising
out of an act or omission outside of this state by the defendant
if, at the
time of the injury either (A) the defendant was engaged in
solicitation or
service activities within this state; or (B) products, materials or
things
processed, serviced or manufactured by the defendant anywhere
were
used or consumed within this state in the ordinary course of trade
or use;
(8) living in the marital relationship
within the state notwithstanding
subsequent departure from the state, as to all obligations arising
for main-
tenance, child support or property settlement under article 16 of
this
chapter, if the other party to the marital relationship continues
to reside
in the state;
(9) serving as the insurer of any person
at the time of any act by the
person which is the subject of an action in a court of competent
jurisdic-
tion within the state of Kansas which results in judgment being
taken
against the person;
(10) performing an act of sexual
intercourse within the state, as to an
action against a person seeking to adjudge the person to be a
parent of a
child and as to an action to require the person to provide support
for a
child as provided by law, if (A) the conception of the child
results from
the act and (B) the other party to the act or the child continues
to reside
in the state; or
(11) entering into an express or implied
arrangement, whether by
contract, tariff or otherwise, with a corporation or partnership,
either
general or limited, residing or doing business in this state under
which
such corporation or partnership has supplied transportation
services, or
communication services or equipment, including, without limitation,
tel-
ephonic communication services, for a business or commercial user
where
the services supplied to such user are managed, operated or
monitored
within the state of Kansas, provided that such person is put on
reasonable
notice that arranging or continuing such transportation services or
tele-
communication services may result in the extension of jurisdiction
pur-
suant to this section.
(c) Service of process upon any person
who is subject to the jurisdic-
tion of the courts of this state, as provided in subsection (b),
may be made
by serving the process upon the defendant outside this state, as
provided
in subsection (a)(2), with the same force and effect as though
process had
been served within this state, but only causes of action arising
from acts
enumerated in subsection (b) may be asserted against a defendant in
an
action in which jurisdiction over the defendant is based upon this
sub-
section.
(d) Nothing contained in this section
limits or affects the right to
serve any process in any other manner provided by law.
(e) Service by
certified mail return receipt
delivery. (1) Service of any
out-of-state process may be by return receipt
delivery shall include service
effected by certified mail, evidenced by return
receipt signed by any per-
son or by restricted delivery. The attorney for the party
seeking service
or the party, if the party is not represented by an
attorney, priority mail,
commercial courier service, overnight delivery service, or other
reliable
personal delivery service to the party addressed, in each
instance evi-
denced by a written or electronic receipt showing to whom
delivered, date
of delivery, address where delivered, and person or entity
effecting deliv-
ery. (2) The party or party's attorney shall cause a copy of
the process
and petition or other document to be placed in an
a sealed envelope
addressed to the person to be served in accordance with K.S.A.
60-304,
and amendments thereto, adequate postage to be affixed and
the sealed
envelope to be placed in the United States mail as
certified mail return
receipt requested with instructions to the delivering
postal employee to
show to whom delivered, date of delivery, and address where
delivered.
The party's attorney or the party, if the party is not
represented by an
attorney, with postage or other delivery fees
prepaid, and the sealed en-
velope placed in the custody of the person or entity effecting
delivery. (3)
Service of process shall be considered obtained under K.S.A.
60-203, and
amendments thereto, upon the delivery of the sealed envelope.
(4) After
service and return of the return receipt, the party or party's
attorney shall
execute a return on service stating the nature of the process,
to whom
delivered, the date on which the process was mailed,
and the name and
address on the envelope containing the process mailed as
certified mail
return receipt requested. The party or the party's attorney
shall file the
return on service and the return receipt or return envelope
in the records
of the action. Service of process shall be considered
obtained under
K.S.A. 60-203, and amendments thereto, upon the delivery of
the certi-
fied mail envelope., the address where
delivered and the person or entity
effecting delivery. The original return of service shall be
filed with the
clerk, along with a copy of the return receipt evidencing such
delivery.
(5) If the certified mail sealed
envelope is returned with an endorsement
showing refusal of to accept delivery, the
serving party or the party's
attorney may send a copy of the process and petition or other
document
to be served to the defendant by
ordinary, first-class mail. The
mailing
shall be evidenced by a certificate of mailing which shall
be filed with the
clerk. Service addressed to the party to be
served, or may elect other
methods of service. If mailed, service shall be considered
obtained upon
three days after the mailing by ordinary,
first-class mail. Failure, postage
prepaid, which shall be evidenced by a certificate of service
filed with the
clerk. If the unopened envelope sent first-class mail is
returned as unde-
livered for any reason, the party or party's attorney shall file
an amended
certificate of service with the clerk indicating nondelivery,
and service by
such mailing shall not be considered obtained. Mere failure
to claim cer-
tified mail service return receipt delivery
is not refusal of service within
the meaning of this subsection.
Sec. 5. K.S.A. 1999 Supp. 60-312 is
hereby amended to read as fol-
lows: 60-312. Proof of service shall be made as follows:
(a) Personal and residence
service. (1) Every officer to whom sum-
mons or other process shall be delivered for service within or
without the
state, shall make a statement subject to penalty of perjury as
provided in
K.S.A. 21-3805 and amendments thereto as to the time, place and
manner
of service of such writ.
(2) If service of such process is
directed to and delivered to a person,
other than an officer, for service, such person shall make
affidavit as to
the time, place and manner of such person's service thereof.
(b) Service by
certified mail return receipt
delivery. Service by cer-
tified mail return receipt delivery shall
be proven in the manner provided
by subsection (b) (c) of K.S.A. 60-303 or
subsection (e) of K.S.A. 60-308,
and amendments thereto.
(c) Publication service. Service
by publication shall be proven by an
affidavit showing the dates upon which and the newspaper in which
the
notice of publication was published. A copy of the notice shall be
attached
to the affidavit which shall be filed in the cause. When mailing of
copies
of the publication notice is required in accordance with subsection
(e) of
K.S.A. 60-307 and amendments thereto, the proof of such mailing
shall
be by affidavit of the person who mailed such copies and such
affidavit
shall be filed with the clerk of the court in which the action has
been
filed. If such mailing was by certified mail, the return receipt
shall be
made a part of the affidavit and filed therewith.
(d) Time for return. The officer
or other person receiving a summons
or other process shall make a return of service promptly and in any
event
within 10 days after the service is effected. If the process cannot
be served
it shall be returned to the court within 30 days after the date of
issue with
a statement of the reason for the failure to serve the same, except
the
time for service thereof may be extended up to 90 days from the
date of
issue by order of the court or judge of the court to which it is
returnable.
Immediately upon receipt of the return upon any summons or other
pro-
cess by the clerk of the court issuing the same, such clerk shall
mail a
copy of such return to the attorney for the party requesting the
issuance
of such summons or other process or, if such party has no attorney,
then
to the requesting party's self.
Sec. 6. K.S.A. 60-2611 is hereby
amended to read as follows: 60-
2611. In any civil action to enforce payment of or to collect upon
a check,
order or draft on any bank, credit union, savings and loan
association or
depository for the payment of money or its equivalent, payment
upon
which such instrument has been refused because of insufficient
funds or
no account, the party prevailing on such cause of action shall be
awarded
reasonable attorney fees,. Such fees
to shall be assessed by the court as
costs against the losing party. The fees shall not be allowed
unless the
plaintiff offers proof during the trial of such action that prior
to the filing
of the petition in the action demand for payment of the check,
order or
draft had been made upon the defendant by
registered restricted mail
not less than 14 days prior to the filing of such suit.
Sec. 7. On the date of the issuance
by the Kansas supreme court of
an opinion in the case of Owen Lumber Company vs. Chartrand,
case
no. 82,228, which affirms the decision of the Kansas court of
appeals or
on the date the Kansas supreme court denies the petition for
review,
K.S.A. 60-1103 is hereby amended to read as follows: 60-1103. (a)
Pro-
cedure. Any supplier, subcontractor or other person
furnishing labor,
equipment, material or supplies, used or consumed at the site of
the
property subject to the lien, under an agreement with the
contractor,
subcontractor or owner contractor may obtain a lien for the amount
due
in the same manner and to the same extent as the original
contractor
except that:
(1) The lien statement must state the
name of the contractor and be
filed within three months after the date supplies, material or
equipment
was last furnished or labor performed by the claimant;
(2) if a warning statement is required to
be given pursuant to K.S.A.
60-1103a, and amendments thereto, there shall be attached to the
lien
statement the affidavit of the supplier or subcontractor that such
warning
statement was properly given; and
(3) a notice of intent to perform, if
required pursuant to K.S.A. 60-
1103b, and amendments thereto, must have been filed as provided
by
that section.
(b) Owner contractor is defined as any
person, firm or corporation
who:
(1) Is the fee title owner of the real
estate subject to the lien; and
(2) enters into contracts with more than
one person, firm or corpo-
ration for labor, equipment, material or supplies used or consumed
for
the improvement of such real property.
(c) Recording and notice. When a
lien is filed pursuant to this section,
the clerk of the district court shall enter the filing in the
general index.
The claimant shall (1) cause a copy of the lien statement to be
served
personally upon any one owner, any holder of a recorded
equitable inter-
est and any party obligated to pay the lien in the manner
provided by
K.S.A. 60-304, and amendments thereto, for the service of
summons
within the state, or by K.S.A. 60-308, and amendments thereto, for
service
outside of the state, (2) mail a copy of the lien statement to any
one owner
of the property, any holder of a recorded equitable interest
and to any
party obligated to pay the same by restricted mail or (3) if the
address of
any one owner or such party is unknown and cannot be ascertained
with
reasonable diligence, post a copy of the lien statement in a
conspicuous
place on the premises. The provisions of this subsection requiring
that
the claimant serve a copy of the lien statement shall be deemed to
have
been complied with, if it is proven that the person to be served
actually
received a copy of the lien statement. No action to foreclose
any lien may
proceed or be entered against residential real property in this
state unless
the holder of a recorded equitable interest was served with
notice in ac-
cordance with the provisions of this subsection.
(d) Rights and liability of owner.
The owner of the real property shall
not become liable for a greater amount than the owner has
contracted to
pay the original contractor, except for any payments to the
contractor
made:
(1) Prior to the expiration of the
three-month period for filing lien
claims, if no warning statement is required by K.S.A. 60-1103a,
and
amendments thereto; or
(2) subsequent to the date the owner
received the warning statement,
if a warning statement is required by K.S.A. 60-1103a, and
amendments
thereto.
The owner may discharge any lien filed under
this section which the
contractor fails to discharge and credit such payment against the
amount
due the contractor.
Sec. 8. K.S.A. 1999 Supp. 60-2610
is hereby amended to read as
follows: 60-2610. (a) If a person gives a worthless check, as
defined by
subsection (g), the person shall be liable to the holder of the
check for
the amount of the check, the incurred court costs, the costs of
restricted
mail and the service charge and the costs of collection, including
but not
limited to reasonable attorney fees, plus an amount equal to the
greater
of the following:
(1) Damages equal to three times the
amount of the check but not
exceeding the amount of the check by more than $500; or
(2) $100.
The court may waive all or part of the
attorney fees provided for by
this subsection, if the court finds that the damages and other
amounts
awarded are sufficient to adequately compensate the holder of the
check.
In the event the court waives all or part of the attorney fees, the
court
shall make written findings of fact as to the specific reasons that
the
amounts awarded are sufficient to adequately compensate the holder
of
the check.
(b) The amounts specified by subsection
(a) shall be recoverable in a
civil action brought by or on behalf of the holder of the check
only if: (1)
Not less than 14 days before filing the civil action, the
holder of the check
made written demand on the maker or drawer for payment of the
amount
of the check, and the incurred service
charge and the costs of restricted
mail; and (2) the maker or drawer failed to tender to the holder,
prior to
the filing of the action, an amount not less than the amount
demanded.
The written demand shall be sent by restricted mail, as defined by
sub-
section (g), to the person to be given notice at such person's
address as
it appears on such check, draft or order or to the last known
address of
the maker or drawer and shall include notice that, if the money is
not
paid within 14 days, triple damages in addition to an amount of
money
equal to the sum of the amount of the check, the incurred court
costs,
service charge, costs of restricted mail and the costs of
collection including
but not limited to reasonable attorney fees unless the court
otherwise
orders, may be incurred by the maker or drawer of the check.
Notice
required by subsection (b)(1) shall state the exact amount and
date due,
as well as an estimate of the amount that may be incurred if the
amount
demanded is not paid by the specified date.
(c) Subsequent to the filing of an action
under this section but prior
to the hearing of commencement of a
dispositional hearing by the court,
the defendant may tender to the plaintiff as satisfaction of the
claim, an
amount of money equal to the sum of the amount of the check,
the
incurred court costs, service charge, costs of restricted mail and
the costs
of collection, including but not limited to reasonable attorney
fees. The
plaintiff shall include in the petition a statement alleging
that the defend-
ant may tender such amount as satisfaction of the claim as
provided in
this subsection. If the amount alleged in the petition is
tendered to the
plaintiff in full satisfaction of the debt prior to the
commencement of the
dispositional hearing by the court, the case shall be dismissed
by the plain-
tiff. For purposes of this subsection only, the amount tendered
as satis-
faction of the claim shall not include triple damages or damages
of $100
as provided in subsections (a)(1) and (2). For purposes of this
subsection,
a dispositional hearing means a trial or other hearing by the
court in
which the plaintiff is seeking the entry of judgment against the
defendant.
The court may waive all or part of the attorney fees provided for
by this
subsection, if the court finds that the damages and other
amounts
awarded are sufficient to adequately compensate the holder of the
check.
In the event the court waives all or part of the attorney fees, the
court
shall make written findings of fact as to the specific reasons that
the
amounts awarded are sufficient to adequately compensate the holder
of
the check.
(d) If the trier of fact determines that
the failure of the defendant to
satisfy the dishonored check was due to economic hardship, the
court
may waive all or part of the damages provided for by this section,
but the
court shall render judgment against defendant for not less than
the
amount of the dishonored check, the incurred court costs, service
charge,
costs of restricted mail and the costs of collection, including but
not lim-
ited to reasonable attorney fees, unless otherwise provided in this
sub-
section. The court may waive all or part of the attorney fees
provided for
by this subsection, if the court finds that the damages and other
amounts
awarded are sufficient to adequately compensate the holder of the
check.
In the event the court waives all or part of the attorney fees, the
court
shall make written findings of fact as to the specific reasons that
the
amounts awarded are sufficient to adequately compensate the holder
of
the check.
(e) Any amount previously paid as
restitution or reparations to the
holder of the check by its maker or drawer shall be credited
against the
amount for which the maker or drawer is liable under subsection
(a).
(f) Conviction of giving a worthless
check or habitually giving a worth-
less check, as defined by K.S.A. 21-3707 and 21-3708 and
amendments
thereto, shall not be a prerequisite or bar to recovery pursuant to
this
section.
(g) As used in this section:
(1) "Giving a worthless check" means the
making, drawing, issuing
or delivering or causing or directing the making, drawing, issuing
or de-
livering of any check, order or draft on any bank, credit union,
savings
and loan association or depository for the payment of money or its
equiv-
alent:
(A) With intent to defraud or in payment
for a preexisting debt; and
(B) which is dishonored by the drawee
because the maker or drawer
had no deposits in or credits with the drawee or has not sufficient
funds
in, or credits with, the drawee for the payment of such check,
order or
draft in full upon its presentation.
(2) "Restricted mail" means mail which
carries on its face the en-
dorsements "restricted mail" and "deliver to addressee only."
(3) "Service charge" means $10, or
subject to limitations contained
in this subsection, if a larger amount is posted conspicuously, the
larger
amount. In no event shall the amount of such insufficient check
service
charge exceed $30.
Sec. 9. K.S.A. 61-1803 is hereby
amended to read as follows: 61-
1803. (a) Methods of service of process within this state, except
service
by publication, are described in this section. Service of process
outside
the state shall be made in substantial compliance with the
applicable
provisions of K.S.A. 60-308, and amendments thereto.
(b) Who serves process. The sheriff of
the county in which the action
is filed shall serve any process by any method authorized by
this section,
or as otherwise provided by law, unless a party, either
personally or
through an attorney, elects to undertake responsibility for
service and so
notifies the clerk.
(c) Service by
certified mail. Except if the
attorney for the party or
the party, if the party is not represented by an attorney,
requests personal
or residence service pursuant to subsection (c); if the
attorney or the party
requesting service elects to serve process by certified
mail pursuant to
this subsection; or as otherwise provided by law, the
sheriff of the county
wherein the action is filed shall serve any process by
certified mail, evi-
denced by return receipt signed by any person or by
restricted delivery,
unless otherwise permitted by this article.
return receipt delivery. (1)
Service of process by return receipt delivery shall include
service effected
by certified mail, priority mail, commercial courier service,
overnight de-
livery service, or other reliable personal delivery service to
the party ad-
dressed, in each instance evidenced by a written or electronic
receipt
showing to whom delivered, date of delivery, address where
delivered,
and person or entity effecting delivery. (2) The sheriff,
attorney for the
party seeking service or the party, if the party is not
represented by an
attorney, party or party's attorney shall
cause a copy of the process and
petition or other document to be placed in an a
sealed envelope addressed
to the person to be served in accordance with K.S.A. 61-1805, and
amend-
ments thereto, adequate postage to be affixed and the
sealed envelope to
be placed in the United States mail as certified mail
return receipt re-
quested with instructions to the delivering postal employee
to show to
whom delivered, date of delivery, and address where
delivered. The with
postage or other delivery fees prepaid, and the sealed envelope
placed in
the custody of the person or entity effecting delivery. (3)
Service of process
shall be considered obtained under K.S.A. 61-1703, and
amendments
thereto, upon the delivery of the sealed envelope. (4) After
service and
return of the receipt, the sheriff, party's attorney
or the party, if the party
is not represented by an attorney, party, or
party's attorney shall execute
a return on service stating the nature of the process, to whom
delivered,
the date on which the process was mailed, and the name and
address on
the envelope containing the process mailed as certified
mail return receipt
requested. The sheriff, party or the party's attorney shall
file the return
on service and the return receipt or return envelope in the
records of the
action. Service of process shall be considered obtained
under K.S.A. 61-
1703, and amendments thereto, upon the delivery of the
certified mail
envelope. of delivery, the address where
delivered and the person or entity
effecting delivery. The original return of service shall be
filed with the
clerk, along with a copy of the return receipt evidencing such
delivery.
(5) If the certified mail sealed
envelope is returned with an endorsement
showing refusal of to accept delivery, the
sheriff, serving party or the
party's attorney shall may send a copy of
the process and petition or other
document to be served to the defendant by ordinary,
first-class mail. The
mailing shall be evidenced by a certificate of mailing
which shall be filed
with the clerk. Service by first-class mail
addressed to the party to be
served, or may elect other methods of service. If mailed,
service shall be
considered obtained upon three days after
the mailing by ordinary, first-
class mail. Failure, postage prepaid, which
shall be evidenced by a cer-
tificate of service filed with the clerk. If the unopened
envelope sent first-
class mail is returned as undelivered for any reason, the
sheriff, party or
party's attorney shall file an amended certificate of service
with the clerk
indicating nondelivery, and service by such mailing shall not be
consid-
ered obtained. Mere failure to claim certified mail
service return receipt
delivery is not refusal of service within the meaning of
this subsection.
(c)
(d) Personal and residence service. (1)
When The plaintiff files
party may file a written request with the clerk for
service other than by
certified mail, service of process shall be made
by personal or residence
service. Personal service shall be made by delivering or offering
to deliver
a copy of the process and accompanying documents to the person to
be
served. Residence service shall be made by leaving a copy of the
process
and petition, or other document to be served, at the dwelling house
or
usual place of abode of the person to be served with some person
of
suitable age and discretion residing therein. If service cannot be
made
upon an individual, other than a minor or a disabled person, by
personal
or residence service, service may be made by leaving a copy of the
process
and petition, or other document to be served, at the defendant's
dwelling
house or usual place of abode and mailing a notice that such copy
has
been left at such house or place of abode to the individual by
first-class
mail.
(2) When process is to be served under
this subsection, the clerk of
the court shall deliver the process and sufficient copies of the
process and
petition, or other document to be served, to the sheriff of the
county
where the process is to be served or, if requested, to a person
appointed
to serve process or to the plaintiff's attorney.
(3) Service, levy and execution of all
process under this subsection,
including, but not limited to, writs of execution, orders of
attachment,
replevin orders, orders for delivery, writs of restitution and
writs of assis-
tance, shall be made by a sheriff within the sheriff's county, by
the sheriff's
deputy, by an attorney admitted to the practice of law before the
supreme
court of Kansas or by some person appointed as a process server by
a
judge or clerk of the district court, except that a subpoena may
also be
served by any other person who is not a party and is not less than
18 years
of age. Process servers shall be appointed freely and may be
authorized
either to serve process in a single case or in cases generally
during a fixed
period of time. A process server or an authorized attorney may make
the
service anywhere in or out of the state and shall be allowed the
fees
prescribed in K.S.A. 28-110, and amendments thereto, for the
sheriff and
such other fees and costs as the court shall allow. All persons
authorized
under this subsection to serve, levy and execute process shall be
consid-
ered an "officer" as used in K.S.A. 60-706 and 60-2401 and
amendments
thereto.
(4) In all cases when the person to be
served, or an agent authorized
by the person to accept service of process, refuses to receive
copies
thereof, the offer of the duly authorized process server to deliver
copies
thereof, and the refusal, shall be a sufficient service of the
process.
(d)
(e) Acknowledgment or appearance. An
acknowledgment of serv-
ice on the summons is equivalent to service. The voluntary
appearance
by a defendant is equivalent to service as of the date of
appearance.
Sec. 10. K.S.A. 61-1807 is hereby
amended to read as follows: 61-
1807. Proof of service shall be made as follows: (a)
Personal and residence
service. (1) Every officer to whom summons or other process
shall be
delivered for service within or without the state, shall make
return thereof
in writing stating the time, place and manner of service of such
writ, and
shall sign such officer's name to such return.
(2) If such process is directed to and
delivered to a person other than
by an officer for service, such person shall make affidavit as to
the time,
place and manner of such person's service thereof.
(b) Service by
mail return receipt delivery. Service by
certified mail
return receipt delivery shall be proven in the manner
provided by sub-
section (e) of K.S.A. 60-308 or subsection (b)
(c) of K.S.A. 61-1803, and
amendments thereto.
(c) Publication service. Service
by publication shall be proven by an
affidavit showing the dates upon, and the newspaper in which the
notice
of publication was published. A copy of the notice shall be
attached to
the affidavit which shall be filed in the cause. When mailing of
copies of
the publication notice is required in accordance with subsection
(e) of
K.S.A. 60-307, and amendments thereto, the proof of such mailing
shall
be by affidavit of the person who mailed such copies and such
affidavit
shall be filed with the clerk of the court in which the action has
been
filed. Any return receipt shall be made a part of the affidavit and
filed
therewith.
(d) Time for return. The officer
or other person receiving a summons
or other process in forcible detainer cases shall make return of
service
promptly and, in any event, no later than three days before the
date stated
in the summons for the defendant to either appear or plead to the
peti-
tion. In all other cases return of service shall be made promptly
and in
any event no later than five days before the date stated in the
summons
for the defendant to either appear or plead to the petition. If the
process
cannot be served as directed it shall be returned to the court
forthwith
with a statement of the reason for the failure to serve the
same.
(e) Amendment of return. At any
time in the judge's discretion and
upon such terms as the judge deems just, the judge may allow any
process,
return or proof of service thereof to be amended, unless it clearly
appears
that material prejudice would result to the substantial rights of
the party
against whom the process issued.
Sec. 11. On the date of the
issuance by the Kansas supreme court of
an opinion in the case of Owen Lumber Company vs. Chartrand,
case
no. 82,228, which affirms the decision of the Kansas court of
appeals or
on the date the Kansas supreme court denies the petition for
review,
K.S.A. 60-1103 is hereby repealed.
Sec. 12. K.S.A. 17-1642,
60-303, 60-308, 60-1103, 60-2611, 61-1803
and 61-1807 and K.S.A. 1999 Supp. 60-228, 60-312 and 60-2610
are
hereby repealed.
Sec. 13. This act shall
take effect and be in force from and after its
publication in the statute book.