1192 1997 Session Laws of Kansas Ch. 173
An Act concerning civil procedure; amending K.S.A. 60-102,
60-205, 60-206, 60-208, 60-
209, 60-211, 60-214, 60-215, 60-216, 60-223, 60-226, 60-228,
60-230, 60-231, 60-232,
60-233, 60-234, 60-235, 60-236, 60-237, 60-238, 60-241, 60-243,
60-245, 60-245a, 60-
250, 60-252, 60-254, 60-256, 60-262, 60-2103, 60-3703, 61-1710,
61-1725, 61-1729 and
75-3079 and K.S.A. 1996 Supp. 60-1608 and repealing the existing
sections; also re-
pealing K.S.A. 60-2007.
Be it enacted by the Legislature of the State of
Kansas:
Section 1. K.S.A. 60-102 is hereby amended to read as follows:
60-
102. The provisions of this act shall be liberally construed and
adminis-
tered to secure the just, speedy and inexpensive determination
of every
action or proceeding.
Sec. 2. K.S.A. 60-205 is hereby amended to read as follows:
60-205.
The method of service and filing of pleadings and other papers as
pro-
vided in this section shall constitute sufficient service and
filing in all civil
actions and special proceedings but they shall be alternative to,
and not
in restriction of, different methods specifically provided by
law.
(a) When required. Except as otherwise provided in this
chapter, the
following shall be served upon each of the parties: Every order
required
by its terms to be served; every pleading subsequent to the
original pe-
tition, unless the court otherwise orders because of numerous
defendants;
every paper relating to disclosure of expert testimony or
discovery re-
quired to be served upon a party, unless the court otherwise
orders; every
written motion other than one which may be heard ex parte;
and every
written notice, appearance, demand, offer of judgment, designation
of
record on appeal and similar paper. No service need be made on
parties
in default for failure to appear except that pleadings asserting
new or
additional claims for relief against them shall be served upon them
in the
manner provided for service of summons in article 3 of
this chapter 60.
(b) How made. Whenever under this article service is
required or
permitted to be made upon a party represented by an attorney the
service
shall be made upon the attorney unless service upon the party is
ordered
by the court. Service upon the attorney or upon a party shall be
made by:
(1) Delivering a copy to the attorney or a party: (2) mailing it to
the
attorney or a party at the last known address; (3) if no address is
known,
by leaving it with the clerk of the court; or (4) sending or
transmitting to
such attorney a copy by telefacsimile communication. For the
purposes
of this subsection, ``Delivery of a copy'' means: Handing it to the
attorney
or to the party; leaving it at the attorney's or party's office
with the clerk
or other person in charge thereof or, if there is no one in charge,
leaving
it in a conspicuous place therein; or, if the attorney's or party's
office is
closed or the person to be served has no office, leaving it at the
attorney's
or party's dwelling house or usual place of abode with some person
of
Ch. 173 1997 Session Laws of Kansas 1193
suitable age and discretion then residing therein. Service by
mail is com-
plete upon mailing. Service by telefacsimile communication is
complete
upon receipt of a confirmation generated by the transmitting
machine.
(c) Numerous defendants. In any action in which there are
unusually
large numbers of defendants, the court, upon motion or of its own
initia-
tive, may order that services of the pleadings of the defendants
and replies
thereto need not be made as between the defendants and that any
cross-
claim, counterclaim or matter constituting an avoidance or
affirmative
defense contained therein shall be deemed to be denied or avoided
by
all other parties and that the filing of any such pleading and
service
thereof upon the plaintiff constitutes due notice of it to the
parties. A
copy of every such order shall be served upon the parties in such
manner
and form as the court directs.
(d) Filing. (1) Interrogatories, depositions other than
those taken un-
der K.S.A. 60-227 and amendments thereto, disclosures of expert
testi-
mony under K.S.A. 60-226 and amendments thereto and discovery
re-
quests or responses under K.S.A. 60-234 or 60-236, and
amendments
thereto, shall not be filed except on order of the court or until
used in a
trial or hearing, at which time the documents shall be
filed.
(2) A party serving discovery requests or responses under
K.S.A.
60-233, 60-234 or 60-236, and amendments thereto, or disclosures
of
expert testimony under K.S.A. 60-226 and amendments thereto,
shall file
with the court a certificate stating what document was served, when
and
upon whom.
(3) All other papers filed after the petition and required to be
served
upon a party, shall be filed with the court either before service
or within
a reasonable time thereafter.
(e) Filing with the court defined. The filing of
pleadings and other
papers with the court as required by this article shall be made by
filing
them with the clerk of the court, except that
the. In accordance with
K.S.A. 60-271 and amendments thereto and supreme court rules,
plead-
ings and other papers may be filed by telefacsimile communication.
The
judge may permit the papers to be filed with the judge, in which
event
the judge shall note thereon the filing date and forthwith transmit
them
to the office of the clerk.
Sec. 3. K.S.A. 60-206 is hereby amended to read as follows:
60-206.
The following provisions shall govern the computation and extension
of
time:
(a) Computation; legal holiday defined. In computing any
period of
time prescribed or allowed by this chapter, by the local rules of
any district
court, by order of court, or by any applicable statute, the day of
the act,
event, or default from which the designated period of time begins
to run
shall not be included. The last day of the period so computed is to
be
included, unless it is a Saturday, Sunday or a legal holiday, in
which event
1194 1997 Session Laws of Kansas Ch. 173
the period runs until the end of the next day which is not a
Saturday, a
Sunday or a legal holiday. When the period of time prescribed or
allowed
is less than 11 days, intermediate Saturdays, Sundays and legal
holidays
shall be excluded in the computation. A half holiday shall be
considered
as other days and not as a holiday. ``Legal holiday'' includes any
day des-
ignated as a holiday by the congress of the United States, or by
the leg-
islature of this state. When an act is to be performed within any
prescribed
time under any law of this state, or any rule or regulation
lawfully prom-
ulgated thereunder, and the method for computing such time is not
oth-
erwise specifically provided, the method prescribed herein shall
apply.
(b) Enlargement. When by this chapter or by a notice
given there-
under or by order of court an act is required or allowed to be done
at or
within a specified time, the judge for cause shown may at any time
in the
judge's discretion (1) with or without motion or notice order the
period
enlarged if request therefor is made before the expiration of the
period
originally prescribed or as extended by a previous order or (2)
upon mo-
tion made after the expiration of the specified period permit the
act to
be done where the failure to act was the result of excusable
neglect; but
it may not extend the time for taking any action under subsection
(c) (b)
of K.S.A. 60-250, subsection (b) of K.S.A. 60-252, subsections (b),
(e) and
(f) of K.S.A. 60-259 and subsection (b) of K.S.A. 60-260, and
amendments
thereto, except to the extent and under the conditions stated in
them.
(c) Unaffected by expiration of term. The period of time
provided for
the doing of any act or the taking of any proceeding is not
affected or
limited by the continued existence or expiration of a term of
court. The
continued existence or expiration of a term of court in no way
affects the
power of a court to do any act or take any proceeding in any civil
action
pending before it.
(d) For motions--affidavits. A written motion, other than
one which
may be heard ex parte, and notice of the hearing thereof
shall be served
not later than five days before the time specified for the hearing,
unless
a different period is fixed by these rules or by order of the
judge. Such
an order may for cause shown be made on ex parte
application. When a
motion is supported by affidavit, the affidavit shall be served
with the
motion; and except as otherwise provided in subsection (d) of
K.S.A.
60-259, and amendments thereto, opposing affidavits may be served
not
later than one day before the hearing, unless the court permits
them to
be served at the time of hearing.
(e) Additional time after service by mail. Whenever a
party has the
right or is required to do some act or take some proceedings within
a
prescribed period after the service of a notice or other paper upon
such
party and the notice or paper is served upon such party by mail,
three
days shall be added to the prescribed period.
Sec. 4. K.S.A. 60-208 is hereby amended to read as follows:
60-208.
Ch. 173 1997 Session Laws of Kansas 1195
(a) Claims for relief. A pleading which sets forth a
claim for relief, whether
an original claim, counterclaim, cross-claim, or third-party claim,
shall
contain: (1) A short and plain statement of the claim showing that
the
pleader is entitled to relief; and (2) a demand for judgment for
the relief
to which the pleader deems such pleader's self entitled. Every
pleading
demanding relief for damages in money in excess of
$50,000 $75,000,
without demanding any specific amount of money, shall set forth
only
that the amount sought as damages is in excess of
$50,000 $75,000, except
in actions sounding in contract. Every pleading demanding relief
for dam-
ages in money in an amount of $50,000
$75,000 or less shall specify the
amount of such damages sought to be recovered. Relief in the
alternative
or of several different types may be demanded.
(b) Defenses; form of denials. A party shall state in
short and plain
terms such party's defenses to each claim asserted and shall admit
or deny
the averments upon which the adverse party relies. If the party is
without
knowledge or information sufficient to form a belief as to the
truth of an
averment, the party shall so state and this has the effect of a
denial.
Denials shall fairly meet the substance of the averments denied.
When a
pleader intends in good faith to deny only a part or a
qualification of an
averment, the pleader shall specify so much of it as is true and
material
and shall deny only the remainder. Unless the pleader intends in
good
faith to controvert all the averments of the preceding pleading,
the
pleader may make denials as specific denials of designated
averments or
paragraphs, or the pleader may generally deny all the averments
except
such designated averments or paragraphs as the pleader expressly
admits;
but, when the pleader does so intend to controvert all averments,
the
pleader may do so by general denial, subject to the obligations set
forth
in K.S.A. 60-211, and amendments thereto.
(c) Affirmative defenses. In pleading to a preceding
pleading a party
shall set forth affirmatively accord and satisfaction, arbitration
and award,
assumption of risk, contributory negligence, discharge in
bankruptcy, du-
ress, estoppel, failure of consideration, fraud, illegality, injury
by fellow
servant, laches, license, payment, release, res judicata,
statute of frauds,
statute of limitations, waiver, and any other matter constituting
an avoid-
ance or affirmative defense. When a party has mistakenly designated
a
defense as a counterclaim or a counterclaim as a defense, the court
on
terms, if justice so requires, shall treat the pleading as if there
had been
a proper designation.
(d) Effect of failure to deny. Averments in a pleading to
which a re-
sponsive pleading is required or permitted, other than those as to
the
amount of damage, are admitted when not denied in the
responsive
pleading. Averments in a pleading to which no responsive pleading
is
required or permitted shall be taken as denied or avoided.
(e) Pleading to be concise and direct; consistency. (1)
Each averment
1196 1997 Session Laws of Kansas Ch. 173
of a pleading shall be simple, concise, and direct. No technical
forms of
pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense
alternately or hypothetically, either in one count or defense or in
separate
counts or defenses. When two or more statements are made in the
alter-
native and one of them if made independently would be sufficient,
the
pleading is not made insufficient by the insufficiency of one or
more of
the alternative statements. A party may also state as many separate
claims
or defenses as the party has regardless of consistency and whether
based
on legal or on equitable grounds or on both. All statements shall
be made
subject to the obligations set forth in K.S.A. 60-211, and
amendments
thereto.
(f) Construction of pleadings. All pleadings shall be so
construed as
to do substantial justice.
Sec. 5. K.S.A. 60-209 is hereby amended to read as follows:
60-209.
(a) Capacity. It is not necessary to aver the capacity of a
party to sue or
be sued or the authority of a party to sue or be sued in a
representative
capacity or the legal existence of an organized association of
persons that
is made a party. When a party desires to raise an issue as to the
legal
existence of any party or the capacity of any party to sue or be
sued or
the authority of any party to sue or be sued in a representative
capacity,
the party raising the issue shall do so by specific negative
averment which
shall include such supporting particulars as are peculiarly within
the
pleader's knowledge.
(b) Fraud, mistake, conditions of the mind. In all
averments of fraud
or mistake, the circumstances constituting fraud or mistake shall
be stated
with particularity. Malice, intent, knowledge, and other conditions
of
mind of a person may be averred generally.
(c) Conditions precedent. In pleading the performance or
occurrence
of conditions precedent, it is sufficient to aver generally that
all conditions
precedent have been performed or have occurred. A denial of
perform-
ance or occurrence shall be made specifically and with
particularity.
(d) Official document or act. In pleading an official
document or of-
ficial act it is sufficient to aver that the document was issued or
the act
done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a
domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board
or officer,
it is sufficient to aver the judgment or decision without setting
forth mat-
ter showing jurisdiction to render it.
(f) Time and place. For the purpose of testing the
sufficiency of a
pleading, averments of time and place are material and shall be
consid-
ered like all other averments of material matter.
(g) Special damage. When items of special damage are
claimed, their
nature shall be specifically stated. In actions where exemplary or
punitive
Ch. 173 1997 Session Laws of Kansas 1197
damages are recoverable, the amended petition shall not state a
dollar
amount for damages sought to be recovered but shall state whether
the
amount of damages sought to be recovered is in excess of or not in
excess
of $10,000 $75,000.
(h) Pleading written instrument. Whenever a claim,
defense or coun-
terclaim is founded upon a written instrument, the same may be
pleaded
by reasonably identifying the same and stating the substance
thereof or
it may be recited at length in the pleading, or a copy may be
attached to
the pleading as an exhibit.
(i) Tender of money. When a tender of money is made in
any plead-
ing, it shall not be necessary to deposit the money in court when
the
pleading is filed, but it shall be sufficient if the money is
deposited in the
court at the trial, unless otherwise ordered by the court.
(j) Libel and slander. In an action for libel or slander,
it shall not be
necessary to state in the petition any extrinsic facts for the
purpose of
showing the application to the plaintiff of the defamatory matter
out of
which the claim arose, but it shall be sufficient to state
generally that the
same was published or spoken concerning the plaintiff; and if such
alle-
gation be not controverted in the answer, it shall not be necessary
to prove
it on the trial; in other cases it shall be necessary. The
defendant may, in
such defendant's answer, allege both the truth of the matter
charged as
defamatory and any mitigating circumstances admissible in evidence
to
reduce the amount of damages; and whether the defendant proves
the
justification or not, the defendant may give in evidence any
mitigating
circumstances.
Sec. 6. K.S.A. 60-211 is hereby amended to read as follows:
60-211.
(a) Every pleading, motion and other paper provided for by
this article
of a party represented by an attorney shall be signed by at least
one
attorney of record in the attorney's individual name, and the
attorney's
address and telephone number shall be stated. A pleading, motion
or
other paper provided for by this article of a party who is not
represented
by an attorney shall be signed by the party and shall state the
party's
address. Except when otherwise specifically provided by rule or
statute,
pleadings need not be verified or accompanied by an
affidavit.
(b) The signature of a person constitutes a certificate
by the person
that the person has read the pleading;, motion
or other paper and that to
the best of the person's knowledge, information and belief formed
after
reasonable an inquiry it is well
grounded in fact and is warranted by reasonable under the
circumstances:
existing law or a good faith argument for the extension,
modification or
reversal of existing law; and that it is not imposed for any
improper pur-
pose, such as to harass or to cause unnecessary delay or needless
increase
in the cost of litigation
(1) It is not being presented for any improper purpose, such
as to
1198 1997 Session Laws of Kansas Ch. 173
harass or to cause unnecessary delay or needless increase in
the cost of
litigation;
(2) the claims, defenses and other legal contentions therein
are war-
ranted by existing law or by a nonfrivolous argument for the
extension,
modification or reversal of existing law or the establishment of
new law;
(3) the allegations and other factual contentions have
evidentiary sup-
port or, if specifically so identified, are likely to have
evidentiary support
after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the
evidence
or, if specifically so identified, are reasonably based on a lack
of infor-
mation or belief.
(c) If a pleading, motion or other paper provided for by
this article
is not signed it shall be stricken unless it is signed promptly
after the
omission is called to the attention of the pleader or movant. If a
pleading,
motion or other paper provided for by this article is signed in
violation of
this section, the court, upon motion or upon its own initiative
upon notice
and after opportunity to be heard, shall impose upon the person
who
signed it or a represented party, or both, an appropriate sanction,
which
may include an order to pay to the other party or parties the
amount of
the reasonable expenses incurred because of the filing of the
pleading,
motion or other paper, including reasonable attorney fees. A
motion for
sanctions under this section may be served and filed at any time
during
the pendency of the action but not later than 10 days after the
entry of
judgment.
(d) Subsections (a) through (c) do not apply to disclosures
and dis-
covery requests, responses, objections and motions that are subject
to the
provisions of K.S.A. 60-226 through 60-237 and amendments
thereto.
(e) The state of Kansas, or any agency thereof, and all
political sub-
divisions of the state shall be subject to the provisions of this
section in
the same manner as any other party.
(f) If the court imposes monetary sanctions on an inmate in
the cus-
tody of the secretary of corrections, the secretary is hereby
authorized to
disburse any money in the inmate's account to pay such
sanctions.
Sec. 7. K.S.A. 60-214 is hereby amended to read as follows:
60-214.
(a) When defendant may bring in third party. At any time
after com-
mencement of the action a defending party, as a third-party
plaintiff, may
cause a summons and complaint petition to
be served upon a person not
a party to the action who is or may be liable to
him the third-party plaintiff
for all or part of the plaintiff's claim against
him the third-party plaintiff.
The third-party plaintiff need not obtain leave to make the service
if hethe third-party plaintiff files
the third-party complaint petition not
later
than 10 days after he serves his serving
the original answer. Otherwise hethe
third-party plaintiff must obtain leave on motion upon notice
to all
parties to the action. The person served with the summons and
third-
Ch. 173 1997 Session Laws of Kansas 1199
party complaint petition, hereinafter
called the third-party defendant,
shall make his any defenses to the
third-party plaintiff's claim as provided
in K.S.A. 60-212 and amendments thereto and
his any counterclaims
against the third-party plaintiff and cross-claims against other
third-party
defendants as provided in K.S.A. 60-213 and amendments
thereto. The
third-party defendant may assert against the plaintiff any defenses
which
the third-party plaintiff has to the plaintiff's claim. The
third-party de-
fendant may also assert any claim against the plaintiff arising out
of the
transaction or occurrence that is the subject matter of the
plaintiff's claim
against the third-party plaintiff. The plaintiff may assert any
claim against
the third-party defendant arising out of the transaction or
occurrence that
is the subject matter of the plaintiff's claim against the
third-party plain-
tiff, and the third-party defendant thereupon shall assert
his any defenses
as provided in K.S.A. 60-212 and amendments thereto and
his any coun-
terclaims and cross-claims as provided in K.S.A. 60-213 and
amendments
thereto. Any party may move to strike the third-party claim, or
for its
severance or separate trial. A third-party defendant may proceed
under
this section against any person not a party to the action who is or
may be
liable to him the third-party defendant for
all or part of the claim made
in the action against the third-party defendant.
(b) When plaintiff may bring in third party. When a
counterclaim is
asserted against a plaintiff, he the
plaintiff may cause a third party to be
brought in under circumstances which under this section would
entitle a
defendant to do so.
(c) Execution by third-party plaintiff -- limitation.
Where a third-
party defendant is liable to the plaintiff, or to anyone holding a
similar
position under subsections (a) and (b) of this
section, on the claim on
which a third-party plaintiff has been sued, execution by
said the third-
party plaintiff on a judgment against said
such third-party defendant shall
be permitted only to the extent that the third-party plaintiff has
paid any
judgment obtained against him the third-party
plaintiff by the obligee.
Sec. 8. K.S.A. 60-215 is hereby amended to read as follows:
60-215.
(a) Amendments. A party may amend his
the party's pleading once as a
matter of course at any time before a responsive pleading is served
or, if
the pleading is one to which no responsive pleading is permitted
and the
action has not been placed upon the trial calendar,
he the party may so
amend it at any time within twenty (20) 20
days after it is served. Oth-
erwise a party may amend his the party's
pleading only by leave of court
or by written consent of the adverse party; and leave shall be
freely given
when justice so requires. A party shall plead in response to an
amended
pleading within the time remaining for response to the original
pleading
or within twenty (20) 20 days after service
of the amended pleading,
whichever period may be the longer, unless the court otherwise
orders.
(b) Amendments to conform to the evidence. When issues
not raised
1200 1997 Session Laws of Kansas Ch. 173
by the pleadings are tried by express or implied consent of the
parties,
they shall be treated in all respects as if they had been raised in
the
pleadings. Such amendment of the pleadings as may be necessary to
cause
them to conform to the evidence and to raise these issues may be
made
at any time, even after judgment; but failure so to amend does not
affect
the result of the trial of these issues. If evidence is objected to
at the trial
on the ground that it is not within the issues made by the
pleadings, the
court may allow the pleadings to be amended and shall do so freely
when
the presentation of the merits of the action will be subserved
thereby and
the objecting party fails to satisfy the court that the admission
of such
evidence would prejudice him the party in
maintaining his the party's
action or defense upon the merits. The court may grant a
continuance to
enable the objecting party to meet such evidence.
(c) Relation back of amendments.
Whenever An amendment of a
pleading relates back to the date of the original pleading
when:
(1) The claim or defense asserted in the amended pleading
arose out
of the conduct, transaction, or occurrence set forth or attempted
to be
set forth in the original pleading, the amendment relates
back to the date; or
of the original pleading. An
(2) the amendment changing
changes the party or the naming of the
party against whom a claim is asserted relates
back if the foregoing pro-
vision (1) is satisfied and, within the period provided by
law for com-
mencing the action against him the party
including the period for service
of process under K.S.A. 60-203 and amendments thereto, the
party to be
brought in by amendment (1): (A) Has
received such notice of the insti-
tution of the action that he the party
would not be prejudiced in main-
taining his a defense on the
merits,; and (2)
(B) knew or should have
known that, but for a mistake concerning the identity of the proper
party,
the action would have been brought against him
the party.
(d) Supplemental pleadings. Upon motion of a party the
court may,
upon reasonable notice and upon such terms as are just, permit
him the
party to serve a supplemental pleading setting forth
transactions or oc-
currences or events which have happened since the date of the
pleading
sought to be supplemented. Permission may be granted even though
the
original pleading is defective in its statement of a claim for
relief or de-
fense. If the judge deems it advisable that the adverse party plead
to the
supplemental pleading, he the judge shall
so order, specifying the time
therefor.
Sec. 9. K.S.A. 60-216 is hereby amended to read as follows:
60-216.
(a) Pretrial conferences; objectives. In any action, the
court shall on the
request of either party, or may in its discretion without such
request,
direct the attorneys for the parties to appear before it for a
conference
to consider: or conferences before trial to
expedite processing and dispo-
sition of the litigation, minimize expense and conserve
time.
Ch. 173 1997 Session Laws of Kansas 1201
(b) Case management conference. In any action, the
court shall on
the request of either party, or may in its discretion without such
request,
conduct a case management conference with counsel and any
unrepre-
sented parties. The conference shall be scheduled by the court as
soon as
possible and shall be conducted within 45 days of the filing of an
answer.
However, in the discretion of the court, the time for the
conference may
be extended or reduced to meet the needs of the individual
case.
At any conference under this subsection consideration shall
be given,
and the court shall take appropriate action, with respect
to:
(1) Identifying the issues and exploring the possibilities of
stipulations
and settlement;
(2) whether the action is suitable for alternative dispute
resolution;
(3) exchanging information on the issues of the case,
including key
documents and witness identification;
(4) establishing a plan and schedule for discovery, including
setting
limitations on discovery, if any, designating the time and place of
discov-
ery, restricting discovery to certain designated witnesses or
requiring
statements be taken in writing or by use of electronic recording
rather
than by stenographic transcription;
(5) requiring completion of discovery within a definite
number of
days after the conference has been conducted;
(6) setting deadlines for filing motions, joining parties and
amend-
ments to the pleadings;
(7) setting the date or dates for conferences before trial, a
final pretrial
conference, and trial; and
(8) such other matters as are necessary for the proper
management
of the action.
If a case management conference is held, except as provided
in subsec-
tion (a)(2)(B) of K.S.A. 60-230 and amendments thereto, no
depositions,
other than of the parties to the action, shall be taken until after
the con-
ference is held, except by agreement of the parties or order of the
court.
If the case management conference is not held within 45 days of the
filing
of an answer, the restrictions of this paragraph shall no longer
apply.
If discovery cannot be completed within the period of time
originally
prescribed by the court, the party not able to complete discovery
shall file
a motion prior to the expiration of the original period for
additional time
to complete discovery. Such motion shall contain a discovery plan
and
shall set forth the reason why discovery cannot be completed within
the
original period. If additional time is allowed, the court shall
grant only
that amount of time reasonably necessary to complete
discovery.
(c) Subjects for consideration at pretrial
conferences. At any pretrial
conference consideration may be given, and the court may take
appro-
priate action, with respect to:
(1) The simplification of the issues;
1202 1997 Session Laws of Kansas Ch. 173
(2) The trial of issues of law the
determination of issues of law which
may eliminate or affect the trial of issues of fact;
(3) the necessity or desirability of amendments to the
pleadings;
(4) the possibility of obtaining admissions of fact and of
documents
which will avoid unnecessary proof;
(5) the limitation of the number of expert witnesses;
(6) the advisability of a preliminary reference of issues to a
master;
and
(7) such other matters as may aid in the disposition of the
action.
At least one of the attorneys for each party participating in
any con-
ference before trial shall have authority to enter into
stipulations and to
make admissions regarding all matters that the participants may
reason-
ably anticipate may be discussed. If appropriate, the court may
require
that a party or its representative be present or reasonably
available by
telephone in order to consider possible settlement of the
dispute.
In the discretion of the court, any pretrial conference may
be held by
a telephone conference call.
(d) Final pretrial conference. In any action, the
court shall on the
request of either party, or may in its discretion without such
request,
conduct a final pretrial conference in accordance with procedures
estab-
lished by rule of the supreme court.
(e) Pretrial orders. After any conference held under
this section, an
order shall be entered reciting the action taken. This order shall
control
the subsequent course of the action unless modified by a subsequent
order.
The order following a final pretrial conference shall be modified
only by
agreement of the parties, or by the court to prevent manifest
injustice.
The court in its discretion may, and shall upon the
request of either
party make an order which recites the action taken at the
conference, the
amendments allowed to the pleadings, and the agreements made by
the
parties as to any of the matters considered, and which limits the
issues
for trial to those not disposed of by admissions or agreements of
counsel;
and such order when entered controls the subsequent course of the
ac-
tion, unless modified at the trial to prevent manifest injustice.
The court
in its discretion may establish by rule a pretrial calendar on
which actions
may be placed for consideration as above provided and may either
confine
the calendar to jury actions or to nonjury actions or extend it to
all actions.
(b) (f) If a party or party's attorney
fails to obey a pretrial order, if no
appearance is made on behalf of a party at a pretrial conference,
if a party
or party's attorney is substantially unprepared to participate in
the con-
ference or if a party or party's attorney fails to participate in
good faith,
the judge, upon motion or the judge's own initiative and after
opportunity
to be heard, may make such orders with regard thereto as are just,
and
among others any of the orders provided in subsections (b)(2)(B),
(C) and
(D) of K.S.A. 60-237 and amendments thereto. In lieu of or in
addition
to any other sanction, the judge shall require the party or the
party's
Ch. 173 1997 Session Laws of Kansas 1203
attorney, or both, to pay the reasonable expenses incurred
because of any
noncompliance with this section, including attorney fees, unless
the judge
finds that the noncompliance was substantially justified or that
other cir-
cumstances make an award of expenses unjust.
Sec. 10. K.S.A. 60-223 is hereby amended to read as follows:
60-223.
(a) Prerequisites to a class action. One or more members of
a class may
sue or be sued as representative parties on behalf of all only if
(1) the
class is so numerous that joinder of all members is impracticable,
(2) there
are questions of law or fact common to the class, (3) the claims or
defenses
of the representative parties are typical of the claims or defenses
of the
class, and (4) the representative parties will fairly and
adequately protect
the interests of the class.
(b) Class actions maintainable. An action may be
maintained as a class
action if the prerequisites of subdivision (a) are satisfied, and
in addition:
(1) The prosecution of separate actions by or against individual
mem-
bers of the class would create a risk of (A) inconsistent or
varying adju-
dications with respect to individual members of the class which
would
establish incompatible standards of conduct for the party opposing
the
class, or (B) adjudications with respect to individual members of
the class
which would as a practical matter be dispositive of the interests
of the
other members not parties to the adjudications or substantially
impair or
impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on
grounds
generally applicable to the class, thereby making appropriate final
in-
junctive relief or corresponding declaratory relief with respect to
the class
as a whole; or
(3) the court finds that the questions of law or fact common to
the
members of the class predominate over any questions affecting only
in-
dividual members, and that a class action is superior to other
available
methods for the fair and efficient adjudication of the controversy.
The
matters pertinent to the findings include: (A) The interest of
members
of the class in prosecuting or defending separate actions; (B) the
extent
and nature of any litigation concerning the controversy already
begun by
or against members of the class; (C) the appropriate place for
maintaining,
and the procedural measures which may be needed in conducting, a
class
action.
(c) Determination by order whether class action to be
maintained;
judgment; actions conducted partially as class actions.
(1) As soon as practicable after the commencement and before
the
decision on the merits of an action brought as a class action, the
court
shall determine by order whether it is to be maintained as such.
Where
necessary for the protection of a party or of absent persons, the
court,
upon motion or on its own initiative at any time before the
decision on
the merits of an action brought as a nonclass action, may order
that it be
1204 1997 Session Laws of Kansas Ch. 173
maintained as a class action. An order under this subdivision
may be
conditional, and may be altered or amended before the decision on
the
merits.
(2) The judgment in an action maintained as a class
action shall ex-
tend by its terms to the members of the class, as defined, whether
or not
the judgment is favorable to them.
In any class action maintained under subdivision (b)(3),
the court shall
exclude those members who, by a date to be specified, request
exclusion,
unless the court finds that their inclusion is essential to the
fair and ef-
ficient adjudication of the controversy and states its reasons
therefor. To
afford members of the class an opportunity to request exclusion,
the court
shall direct that reasonable notice be given to the class,
including specific
notice to each member known to be engaged in a separate suit on
the
same subject matter with the party opposed to the
class.
(3) (2) In any class action maintained under
subsection (b)(3), the
court shall direct to the members of the class the best notice
practicable
under the circumstances, including individual notice to all members
who
can be identified through reasonable effort. The notice shall
advise each
member that: (A) The court will exclude the member from the class
if the
member so requests by a specified date; (B) the judgment, whether
fa-
vorable or not, will include all members who do not request
exclusion;
and (C) any member who does not request exclusion, if the member
de-
sires, may enter an appearance through counsel.
(3) The judgment in an action maintained as a class action
under
subsection (b)(1) or (b)(2), whether or not favorable to the class,
shall
include and describe those whom the court finds to be members of
the
class. The judgment in an action maintained as a class action under
sub-
section (b)(3), whether or not favorable to the class, shall
include and
specify or describe those to whom the notice provided in subsection
(c)(2)
was directed, and who have not requested exclusion, and whom the
court
finds to be members of the class.
(4) When appropriate (A) an action may be brought or
maintained as
a class action with respect to particular issues such as the issue
of liability,
or (B) a class may be divided into subclasses and each subclass
treated as
a class, and the provisions of this section shall then be construed
and
applied accordingly.
(d) Orders in conduct of actions. In the conduct of
actions to which
this section applies, the court may, without
limitation, make appropriate
orders: (1) Settling the course of proceedings or prescribing
measures to
prevent undue repetition or complication in the presentation of
evidence
or argument; (2) requiring, for the protection of the members of
the class
or otherwise for the fair conduct of the action, that notice be
given in
such manner as the court may direct to some or all of the members
of
any step in the action, or of the proposed extent of the judgment,
or of
the opportunity of members to signify whether they consider the
repre-
Ch. 173 1997 Session Laws of Kansas 1205
sentation fair and adequate, to intervene and present claims or
defenses,
or otherwise to come into the action; (3) imposing conditions on
the
representative parties or on intervenors; (4) requiring that the
pleadings
be amended to eliminate therefrom allegations as to representation
of
absent persons, or to include such allegations, and that the action
in either
case proceed accordingly. The orders may be combined with an
order
under K.S.A. 60-216 and amendments thereto, and may be
altered or
amended as may be desirable from time to time.
(e) Dismissal or compromise. An action brought as
a A class action, shall not be dismissed or compromised
without the ap-
whether or not ordered to be maintained as provided in paragraph
(1) of
subsection (c),
proval of the court, and the court in its discretion may
order that notice
of a the proposed dismissal or compromise
shall be given to the all mem-
bers of the class in such manner as the court may
direct directs.
Sec. 11. K.S.A. 60-226 is hereby amended to read as follows:
60-226.
(a) Discovery methods. Parties may obtain discovery by one
or more of
the following methods: Depositions upon oral examination or
written
questions; written interrogation
interrogatories; production of documents
or things or permission to enter upon land or other property
under K.S.A.
60-234, subsection (a)(1)(C) of K.S.A. 60-245 or 60-245a and
amendments
thereto, for inspection and other purposes; physical and mental
exami-
nations; and requests for admission. Unless the court
orders otherwise
under subsection (c), the frequency of use of these methods is not
limited.
(b) Scope of discovery. Unless otherwise limited by order
of the court
in accordance with these rules, the scope of discovery is as
follows: (1) In
general: Parties may obtain discovery regarding any matter, not
privi-
leged, which is relevant to the subject matter involved in the
pending
action, whether it relates to the claim or defense of the party
seeking
discovery or to the claim or defense of any other party, including
the
existence, description, nature, custody, condition and location of
any
books, documents or other tangible things and the identity and
location
of persons having knowledge of any discoverable matter. It is not
ground
for objection that the information sought will be inadmissible at
the trial
if the information sought appears reasonably calculated to lead to
the
discovery of admissible evidence. Except as permitted under
subsection
(b)(3) (b)(4), a party shall not require a
deponent to produce, or submit
for inspection, any writing prepared by, or under the supervision
of, an
attorney in preparation for trial.
(2) The frequency or extent of use of the discovery methods
otherwise
permitted under the rules of civil procedure shall be limited by
the court
only if it determines that: (A) The discovery sought is
unreasonably cu-
mulative or duplicative, or is obtainable from some other source
that is
more convenient, less burdensome or less expensive; (B) the party
seeking
discovery has had ample opportunity by discovery in the action to
obtain
1206 1997 Session Laws of Kansas Ch. 173
the information sought; or (C) the burden or expense of the
proposed
discovery outweighs its likely benefit, taking into account the
needs of the
case, the amount in controversy, the parties' resources, the
importance of
the issues at stake in the litigation and the importance of the
proposed
discovery in resolving the issues. The court may act upon its own
initiative
after reasonable notice or pursuant to a motion under subsection
(c).
(2) (3) Insurance agreements. A
party may obtain discovery of the
existence and contents of any insurance agreement under which any
per-
son carrying on an insurance business may be liable to satisfy part
or all
of a judgment which may be entered in the action or to indemnify
or
reimburse for payments made to satisfy the judgment. Information
con-
cerning the insurance agreement is not by reason of disclosure
admissible
in evidence at trial. For purposes of this paragraph, an
application for
insurance shall not be treated as part of an insurance
agreement.
(3) (4) Trial preparation:
Materials. Subject to the provisions of sub-
section (b)(4) (b)(5), a party may obtain
discovery of documents and tan-
gible things otherwise discoverable under subsection (b)(1) and
prepared
in anticipation of litigation or for trial by or for another party
or by or for
that other party's representative
(,including such other party's
attorney,
consultant, surety, indemnitor, insuror or
agent), only upon a showing
that the party seeking discovery has substantial need of the
materials in
the preparation of such party's case and that such party is unable
without
undue hardship to obtain the substantial equivalent of the
materials by
other means. In ordering discovery of such materials when the
required
showing has been made, the court shall protect against disclosure
of the
mental impression, conclusions, opinions or legal theories of an
attorney
or other representative of a party concerning the
litigation.
A party may obtain without the required showing a statement
con-
cerning the action or its subject matter previously made by that
party.
Upon request, a person not a party may obtain without the
required
showing a statement concerning the action or its subject matter
previously
made by that person. If the request is refused, the person may move
for
a court order. The provisions of K.S.A. 60-237 and amendments
thereto
apply to the award of expenses incurred in relation to the motion.
For
purposes of this paragraph, a statement previously made is (A) a
written
statement signed or otherwise adopted or approved by the person
making
it, or (B) a stenographic, mechanical, electrical, or other
recording, or a
transcription thereof, which is a substantially verbatim recital of
an oral
statement by the person making it and contemporaneously
recorded.
(4) (5) Trial preparation:
Experts. Discovery of facts known and opin-
ions held by experts, otherwise discoverable under the provisions
of sub-
section (b)(1) and acquired or developed in anticipation of
litigation or
for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any
other party
to identify each person whom the other party expects to call as an
expert
Ch. 173 1997 Session Laws of Kansas 1207
witness at trial, to state the subject matter on which
the expert is expected
to testify and to state the substance of the facts and opinions to
which
the expert is expected to testify and a summary of the grounds for
each
opinion. (ii) Upon motion the court may order further discovery by
other
means, subject to such restrictions as to scope and such
provisions, pur-
suant to subsection (b)(4)(C), concerning fees and expenses as the
court
may deem appropriate.
(A) A party may depose any person who has been identified as
an
expert whose opinions may be presented at trial. If a disclosure
from the
expert is required under subsection (b)(6), the deposition shall
not be
conducted until after the disclosure is provided.
(B) A party may, through interrogatories or
by deposition, may dis-
cover facts known or opinions held by an expert who has been
retained
or specially employed by another party in anticipation of
litigation or
preparation for trial and who is not expected to be called as a
witness at
trial, only as provided in K.S.A. 60-235 and amendments thereto or
upon
a showing of exceptional circumstances under which it is
impracticable
for the party seeking discovery to obtain facts or opinions on the
same
subject by other means.
(C) Unless manifest injustice would result, (i) the court shall
require
that the party seeking discovery pay the expert a reasonable fee
for time
spent in responding to discovery under subsections
(b)(4)(A)(ii) and this subsection; and (ii) with respect to
discovery obtained under
(b)(4)(B)
subsection (b)(4)(A)(ii) the court may require, and with
respect to dis-
(b)(5)(B) the court shall re-
covery obtained under subsection (b)(4)(B)
quire, the party seeking discovery to pay the other party a fair
portion of
the fees and expenses reasonably incurred by the latter party in
obtaining
facts and opinions from the expert.
(6) Disclosure of expert testimony.
(A) A party shall disclose to other parties the identity of
any person
who may be used at trial to present expert testimony.
(B) Except as otherwise stipulated or directed by the court,
this dis-
closure, with respect to a witness (i) whose sole connection with
the case
is that the witness is retained or specially employed to provide
expert
testimony in the case or (ii) whose duties as an employee of the
party
regularly involve giving expert testimony, shall state the subject
matter
on which the expert is expected to testify, the substance of the
facts and
opinions to which the expert is expected to testify and a summary
of the
grounds for each opinion.
(C) These disclosures shall be made at the times and in the
sequence
directed by the court. In the absence of other directions from the
court
or stipulation by the parties, the disclosures shall be made at
least 90 days
before the trial date or the date the case is to be ready for trial
or, if the
evidence is intended solely to contradict or rebut evidence on the
same
subject matter identified by another party under paragraph
(b)(6)(B),
1208 1997 Session Laws of Kansas Ch. 173
within 30 days after the disclosure made by the other party.
The party
shall supplement these disclosures when required under subsection
(e)(1).
(D) Unless otherwise ordered by the court, all disclosures
under this
subsection shall be made in writing, signed and served. Such
disclosures
shall be filed with the court in accordance with subsection (d) of
K.S.A.
60-205 and amendments thereto.
(c) Protective orders. Upon motion by a party or by the
person from
whom discovery is sought, and for good cause shown, the court in
which
the action is pending or alternatively, on matters relating to a
deposition,
the court in the district where the deposition is to be taken may
make
any order which justice requires to protect a party or person from
an-
noyance, embarrassment, oppression, or undue burden or expense
in-
cluding one or more of the following:
(1) That the discovery not be had;
(2) that the discovery may be had only on specified terms and
con-
ditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery
other
than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope
of the
discovery be limited to certain matters;
(5) that discovery be conducted with no one present except
persons
designated by the court;
(6) that a deposition after being sealed be opened only by order
of
the court;
(7) that a trade secret or other confidential research,
development,
or commercial information not be disclosed or be disclosed only in
a
designated way;
(8) that the parties simultaneously file specified documents or
infor-
mation enclosed in sealed envelopes to be opened as directed by
the
court.
If the motion for a protective order is denied in whole or in
part, the
court may, on such terms and conditions as are
just, may order that any
party or person provide or permit discovery. The provisions of
K.S.A. 60-
237 and amendments thereto apply to the award of expenses incurred
in
relation to the motion.
(d) Sequence and timing of discovery. Unless the court
upon motion,
for the convenience of parties and witnesses and in the interests
of justice,
orders otherwise, methods of discovery may be used in any sequence
and
the fact that a party is conducting discovery, whether by
deposition or
otherwise, shall not operate to delay any other party's
discovery.
(e) Supplementation of responses. A party who has made
a disclosure
under subsection (b)(6) or responded to a request for discovery
with a is under
response that was complete when madeno a duty to supplement
or correct the party's disclosure or response to
include information there-
Ch. 173 1997 Session Laws of Kansas 1209
after acquired, except as follows if ordered
by the court or in the following
circumstances:
(1) A party is under a duty seasonably to
supplement the party's re- at appropriate
intervals its disclo-
sponse with respect to any question directly addressed to (A) the
identity
and location of persons having knowledge of discoverable matters,
and
(B) the identity of each person expected to be called as an expert
witness
at trial, the subject matter on which the party is expected to
testify and
the substance of the party's testimony
sures under subsection (b)(6) if the party learns that in some
material
respect the information disclosed is incomplete or incorrect and if
the
additional or corrective information has not otherwise been made
known
to the other parties during the discovery process or in writing.
With re-
spect to testimony of an expert under subsection (b)(6) the duty
extends
both to information contained in the disclosure and to information
pro-
vided through a deposition of the expert, and any additions or
other
changes to this information shall be disclosed at least 30 days
before trial,
unless otherwise directed by the court.
(2) A party is under a duty seasonably to amend a prior response
to
an interrogatory, request for production or request for
admission if the
party obtains information upon the basis of which (A) the
party knows learns that the response is in
some material re-
that the response was incorrect when made, or (B) the party knows
that
the response though correct when made is no longer true and the
cir-
cumstances are such that a failure to amend the response is in
substance
a knowing concealment
spect incomplete or incorrect and if the additional or corrective
infor-
mation has not otherwise been made known to the other parties
during
the discovery process or in writing.
(3) A duty to supplement responses may be imposed by
order of the
court, agreement of the parties, or at any time prior to trial
through new
requests for supplementation of prior responses.
(f) Signing of disclosures, discovery requests, responses and
objec-
tions. (1) Every request for discovery or response or objection
to discovery
made by a party represented by an attorney shall be signed by at
least
one attorney of record in such attorney's individual name, whose
address
shall be stated. A party who is not represented by an attorney
shall sign
the request, response or objection and state such party's address.
The
signature of the attorney or party constitutes a certification that
the at-
torney or party has read the request, response or objection and
that to
the best of such attorney's or party's knowledge, information and
belief
formed after reasonable inquiry it is: (1)
(A) Consistent with the rules of
civil procedure and warranted by existing law or good faith
argument for
the extension, modification or reversal of existing law;
(2) (B) not inter-
posed for any improper purpose, such as to harass or to cause
unnecessary
delay or needless increase in the cost of litigation; and
(3) (C) not unrea-
sonable or unduly burdensome or expensive, given the needs of the
case,
1210 1997 Session Laws of Kansas Ch. 173
the discovery already had in the case, the amount in controversy
and the
importance of the issues at stake in the litigation. If a request,
response
or objection is not signed, it shall be stricken unless it is
signed promptly
after the omission is called to the attention of the party or
person making
the request, response or objection and a party shall not be
obligated to
take any action with respect to it until it is signed.
(2) Every disclosure made under subsection (b)(6) shall be
signed by
at least one attorney of record in the attorney's individual name
whose
address shall be stated. An unrepresented party shall sign the
disclosure
and state the party's address. The signature of the attorney or
party con-
stitutes a certification that to the best of the signer's
knowledge, infor-
mation and belief, formed after a reasonable inquiry, the
disclosure is
complete and correct as of the time it is made.
(3) If, without substantial justification, a
certification is made in vi-
olation of this section, the court, upon motion or upon its own
initiative,
shall impose upon the person who made the certification or the
party on
whose behalf the disclosure, request, response or objection
is made, or
both, an appropriate sanction, which may include an order to pay
the
amount of reasonable expenses incurred because of the violation,
includ-
ing reasonable attorney fees.
Sec. 12. K.S.A. 60-228 is hereby amended to read as follows:
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. In a foreign
country, Depositions may be
taken in a foreign country:
(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, or (2);
(4) before a person appointed by commission, or
(3) under letters
Ch. 173 1997 Session Laws of Kansas 1211
rogatory. A person appointed by commission has
power by virtue of his the appointment to administer oaths and take
testimony. A com-
or her
mission or letters rogatory 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 letters
rogatory a commission or a letter
of request that the taking of the deposition by
commission or on noticein any other matter is
impracticable or inconvenient; and both a com-
mission and letters rogatory 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.
Letters A letter of request may be addressed ``To
the Appropriate Judicial
rogatory
Authority in (here name the country).'' When a letter of request
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 under letters rogatory 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 a relative or employee or attorney or counsel of
any of
the parties, or is a relative or employee of such attorney or
counsel, or is
financially interested in the action.
(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, in aid of the taking of the deposition,
and may
make any order in accordance with K.S.A. 60-230
(d) subsection (d) of
K.S.A. 60-230, subsection (a) of K.S.A. 60-237
(a) or subsection (b)(1) of
K.S.A. 60-237 (b) (1) and amendments
thereto.
Sec. 13. K.S.A. 60-230 is hereby amended to read as follows:
60-230.
(a) When depositions may be taken; when leave required.
After com- (1) A party may take
the testimony of any
mencement of the action, any
person, including a party, by deposition upon oral
examination. Leave of without leave of court except as provided
in paragraph (2).
court, granted with or without notice, shall be obtained only if
the plaintiff
seeks to take a deposition prior to the expiration of 30 days after
service
of the summons and petition upon any defendant or service made
under
K.S.A. 60-301 et seq., and amendments thereto, except that leave is
not
required if (1) a defendant has served a notice of taking
deposition or
otherwise sought discovery or (2) special notice is given as
provided in
this section
The attendance of witnesses may be compelled by subpoena as
provided
in K.S.A. 60-245 and amendments thereto. The deposition of
a person
1212 1997 Session Laws of Kansas Ch. 173
confined in prison may be taken only by leave of court
on such terms as
the court prescribes.
(2) A party must obtain leave of court, which shall be
granted to the
extent consistent with the principles stated in subsection (b)(2)
of K.S.A.
60-226 and amendments thereto, if the person to be examined is
confined
in prison or if, without written stipulation of the
parties:
(A) The person to be examined already has been deposed in the
case;
(B) a party seeks to take a deposition of a nonparty before
the time
specified in subsection (b) of K.S.A. 60-216 and amendments
thereto, un-
less the notice contains a certification, with supporting facts,
that the
person to be examined is expected to leave Kansas and be
unavailable for
examination in Kansas unless deposed before that time;
or
(C) the plaintiff seeks to take a deposition of a party, or a
deposition
of a nonparty in an action in which a case management conference
has
not been scheduled under subsection (b) of K.S.A. 60-216 and
amend-
ments thereto, prior to the expiration of 30 days after service of
the sum-
mons and petition upon any defendant or service made under
K.S.A.
60-301 et seq., and amendments thereto, unless (i) a defendant has
served
a notice of taking deposition or otherwise sought discovery or (ii)
the
notice contains a certification, with supporting facts, that the
person to
be examined is expected to leave Kansas and be unavailable for
exami-
nation in Kansas unless deposed before expiration of the 30-day
period.
(b) Notice of examination; general requirements;
special notice; non-
stenographic recording; production of documents and things;
deposition
of organization. (1) A party desiring to take the deposition of
any person
upon oral examination shall give reasonable notice in writing to
every
other party to the action. The attendance of witnesses may
be compelled The
by subpoena as provided in K.S.A. 60-245 and amendments
thereto.
notice shall state the time and place for taking the deposition and
the
name and address of each person to be examined, if known.
If, and, if
the name is not known, a general description sufficient to identify
the
person or the particular class or group to which the person
belongs. If a
subpoena duces tecum is to be served on the person to be
examined, a
designation of the materials to be produced as set forth in the
subpoena
shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a
deposition by
plaintiff if the notice (A) states that the person to be examined
is about
to go out of the district where the action is pending and more than
100
miles from the place of trial or is about to leave the United
States, or is
bound on a voyage to sea and will be unavailable for examination
unless
the deposition is taken before expiration of the 30-day period, and
(B)
sets forth facts to support the statement. The plaintiff's attorney
shall sign
the notice and the attorney's signature constitutes a certification
by the
attorney that to the best of the attorney's knowledge, information
and
belief the statement and supporting facts are true. The sanctions
provided
Ch. 173 1997 Session Laws of Kansas 1213
by K.S.A. 60-211 and amendments thereto are applicable
to the certifi-
cation.
If a party shows that when the party was served with
notice under this
section the party was unable through the exercise of diligence to
obtain
counsel to represent the party at the taking of the deposition, the
depo-
sition may not be used against the party.
(3) The judge may for cause shown enlarge or shorten the
time for
taking the deposition.
(4) (2) The parties may stipulate in
writing or the court may upon
motion order that the testimony at a deposition be recorded by
other than
stenographic means. The stipulation or order shall designate the
person
before whom the deposition shall be taken, the manner of
recording,
preserving and filing the deposition, and may include other
provisions to
assure that the recorded testimony will be accurate and
trustworthy. A
party may arrange to have a stenographic transcription made at the
party's
own expense. Any objections under subsection (c), any changes made
by
the witness, the signature identifying the deposition as the
signature of
the witness or the statement of the officer that is required by
subsection
(e) if the witness does not sign and the certification of the
officer required
by subsection (f) shall be set forth in writing to accompany a
deposition
recorded by nonstenographic means.
(3) Unless otherwise agreed by the parties, a deposition
shall be con-
ducted before an officer appointed or designated under K.S.A.
60-228 and
amendments thereto, and shall begin with a statement on the record
by
the officer that includes: (A) The officer's name and business
address;
(B) the date, time and place of the deposition; (C) the name of
the
deponent; (D) the administration of the oath or affirmation to the
de-
ponent; and (E) an identification of all persons present. If the
deposition
is recorded other than stenographically, the officer shall repeat
items (A)
through (C) at the beginning of each unit of recorded tape or other
re-
cording medium. The appearance or demeanor of deponents or
attorneys
shall not be distorted through camera or sound-recording
techniques. At
the end of the deposition, the officer shall state on the record
that the
deposition is complete and shall set forth any stipulations made by
counsel
concerning the custody of the transcript or recording and the
exhibits, or
concerning other pertinent matters. Any deposition which is to be
re-
corded stenographically may also be recorded on videotape, or a
com-
parable medium, by any party by giving notice to the other parties
prior
to the deposition.
(5) (4) The notice to a party deponent
may be accompanied by a
request made in compliance with K.S.A. 60-234 and amendments
thereto
for the production of documents and tangible things at the taking
of the
deposition. The procedure of K.S.A. 60-234 and amendments
thereto
shall apply to the request.
(6) (5) A party may in the notice and
in a subpoena name as the
1214 1997 Session Laws of Kansas Ch. 173
deponent a public or private corporation or a partnership,
association or
governmental agency and designate with reasonable particularity the
mat-
ters on which examination is requested. The named organization
shall
designate one or more officers, directors, managing agents or other
per-
sons who consent to testify on its behalf and may set forth, for
each person
designated, the matters on which the person will testify. A
subpoena shall
advise a nonparty organization of its duty to make such a
designation.
The designated persons shall testify as to matters known or
reasonably
available to the organization. This subsection does not preclude
taking a
deposition by any other procedure authorized in these
rules.
(7) (6) The parties may stipulate in
writing or the court may upon
motion order that a deposition be taken by telephone or other
remote
electronic means. For the purposes of this section and
K.S.A. 60-228(a), subsection
(c) of K.S.A. 60-226,
60-237(a)(1), 60-237(b)(1) and 60-245(e),
subsection (a) of K.S.A. 60-228, subsection (a)(1) of K.S.A.
60-237, sub-
section (b)(1) of K.S.A. 60-237 and subsection (a)(2) of K.S.A.
60-245 and
amendments thereto, a deposition taken by telephone shall
be or other
remote electronic means is taken in the district agreed
upon by the parties
and at the place where the deponent answers questions. If a
deposition
is taken by telephone, a stenographic record of the deposition
shall be
made while the deposition is being taken.
(8) The parties may stipulate in writing or the court,
upon motion
and a finding that it is necessary, may order that a deposition be
video-
taped. If a deposition is videotaped, a stenographic record of the
depo-
sition shall be made while the deposition is being taken, at the
place where
the deponent answers questions.
(c) Examination and cross-examination; record of examination;
oath;
objections. Examination and cross-examination of witnesses may
proceed
as permitted at the trial under the provisions of K.S.A. 60-243 and
amend-
ments thereto. The officer before whom the deposition is to be
taken
shall put the witness on oath or affirmation and shall
personally, or by
some one acting under the direction and in the presence of the
officer,
record the testimony of the witness. The testimony shall be taken
sten-
ographically or recorded by any other means ordered in accordance
with
subsection (b)(4) (b)(2). If requested by
one of the parties, the testimony
shall be transcribed. The judge may order the cost of transcription
paid
by one or some of, or apportioned among, the parties. All
objections made
at the time of the examination to the qualifications of the officer
taking
the deposition, to the manner of taking it, to the evidence
presented, to
the conduct of any party and any other objection
to or to any other aspect
of the proceedings shall be noted by the officer upon the
record of the
deposition. Evidence objected to shall be; but
the examination shall pro-
ceed, with the testimony being taken subject to the objections.
In lieu of
participating in the oral examination, parties may serve written
questions
in a sealed envelope on the party taking the deposition and the
party shall
Ch. 173 1997 Session Laws of Kansas 1215
transmit them the questions to the
officer who shall propound them such
questions to the witness and record the answers
verbatim.
(d) Motion to terminate or limit examination. At any time
during the
taking of the deposition, on motion of a party or of the deponent
and
upon a showing that the examination is being conducted in bad faith
or
in such manner as unreasonably to annoy, embarrass or oppress the
de-
ponent or party, the judge in the district where the action is
pending or
where the deposition is being taken may order the officer
conducting the
examination to cease forthwith from taking the deposition or may
limit
the scope and manner of the taking of the deposition as provided
in
subsection (c) of K.S.A. 60-226(c)
60-226 and amendments thereto. If the
order made terminates the examination, it shall be resumed only
upon
the order of the judge where the action is pending. Upon demand of
the
objecting party or deponent the taking of the deposition shall be
sus-
pended for the time necessary to make a motion for an order. The
pro-
visions of subsection (a) of K.S.A.
60-237(a) 60-237 and amendments
thereto apply to the award of expenses incurred in relation to the
motion.
(e) Submission to Review by witness;
changes; signing. When the tes-
timony is fully transcribed, the deposition shall be submitted to
the wit-
ness for examination and shall be read to or by the witness, unless
the
examination and reading are waived by the witness and by the
parties.
The officer shall enter, on a form prescribed by rule of the
supreme court,
any changes which the witness desires to make in the form or
substance
of the deposition, together with a statement of the reasons given
by the
witness for making the changes. The deposition shall then be signed
by
the witness, unless the parties by stipulation waive the signing or
the
witness is ill, cannot be found or refuses to sign. The officer
before whom
the deposition is taken shall submit the deposition by sending it
by
first-class mail or by hand delivering it, either to the witness or
to the
attorney for the witness if the witness is a party to the
lawsuit.
If the deposition is not signed by the witness or not
returned within Unless
waived by the de-
the time limitation provided in this subsection, the officer shall
sign it or
a copy of it and state on the record the waiver, the illness or
absence of
the witness or the refusal to sign together with the reason given,
if any,
or the failure to return the deposition within 30 days after having
been
submitted. The deposition may be used as though signed, unless on
a
motion to suppress under K.S.A. 60-232(d)(4) and amendments
thereto,
the judge holds that the reasons given for the refusal to sign
require
rejection of the deposition in whole or in part
ponent and by the parties, the deponent shall have 30 days after
being
notified by the officer that the transcript or recording is
available in which
to review the transcript or recording and, if there are changes in
form or
substance, to sign a statement reciting such changes and the
reasons given
by the deponent for making such changes. The officer shall indicate
in the
certificate prescribed by subsection (f)(1) whether the deposition
was re-
1216 1997 Session Laws of Kansas Ch. 173
viewed and, if so, shall append any changes made by the
deponent during
the period allowed.
(f) Certification and delivery or filing by officer; notice
of delivery or
filing; copies; exhibits; retention of original. (1) The
officer shall certify
on the deposition that the witness was duly sworn
by the officer and that
the deposition is a true record of the testimony given by the
witness. This
certificate shall be in writing and accompany the record of the
deposition.
Unless otherwise ordered by the court, the officer shall securely
seal the
deposition in an envelope or package indorsed with the title
of the action
and marked ``deposition of (here insert name of witness)'' and
shall
promptly deliver it the deposition to the
party taking the deposition, who
shall store the deposition under conditions that will protect the
deposition
against loss, destruction, tampering or deterioration. If so
ordered by the
court, the officer shall promptly file the deposition with the
court in which
the action is pending or send it by first-class mail to the clerk
for filing.
The officer shall serve notice of the delivery or filing of the
deposition on
all parties. Upon payment of reasonable charges therefor,
the officer shall
furnish a copy of the deposition to any party or to the
deponent.
Documents and things produced for inspection during the
examination
of the witness shall, upon the request of a party,
shall be marked for
identification and annexed to the deposition and may be inspected
and
copied by any party, except that if the person producing the
materials
desires to retain them the person may (A) offer copies to be marked
for
identification and annexed to the deposition and to serve as
originals, if
the person affords to all parties an opportunity to verify the
copies by
comparison with the originals, or (B) offer the originals to be
marked for
identification, after giving to each party an opportunity to
inspect and
copy them, in which event the materials may then be used in the
same
manner as if annexed to and returned with the deposition. Any party
may
move for an order that the original be annexed to the
deposition.
(2) Unless otherwise ordered by the court or agreed by the
parties,
the officer shall retain stenographic notes of any deposition taken
steno-
graphically or a copy of the recording of any deposition taken by
another
method. Upon payment of reasonable charges therefore, the officer
shall
furnish a copy of the transcript or other recording of the
deposition to
any party or to the deponent.
(2) (3) Except when filed with the
court, the original of a deposition
shall be retained by the party to whom it is delivered and made
available
for appropriate use by any party.
(g) Failure to attend or to serve subpoena; expenses. (1)
If the party
giving the notice of the taking of a deposition fails to attend and
proceed
therewith and another party attends in person or by attorney
pursuant to
the notice, the court may order the party giving the notice to pay
to such
other party the reasonable expenses incurred by that party and
attorney
in so attending, including reasonable attorney fees.
Ch. 173 1997 Session Laws of Kansas 1217
(2) If the party giving the notice of the taking of a deposition
of a
witness fails to serve a subpoena upon the witness and because of
such
failure the witness does not attend, and if another party attends
in person
or by attorney because the party expects the deposition of that
witness to
be taken, the court may order the party giving the notice to pay
the
reasonable expenses and attorney fees of the party and the party's
attorney
in attending the taking of the deposition.
(h) Persons to be present. Unless otherwise ordered by
the judge or
stipulated by counsel, no person shall be present while a
deposition is
being taken except the officer before whom it is being taken; the
reporter,
stenographer or person recording the deposition; the parties to the
action,
their respective counsel and paralegals or legal assistants of such
counsel;
and the deponent.
Sec. 14. K.S.A. 60-231 is hereby amended to read as follows:
60-231.
(a) Serving questions; notice. After commencement of
the action, any (1)
A party may take the testimony of any person, including a
party, by dep-
osition upon written questions without leave of court except as
provided
in paragraph (2). The attendance of witnesses may be compelled
by the
use of subpoena as provided in K.S.A. 60-245 and amendments
thereto.
The deposition of a person confined in prison may be taken
only by leave
of court on such terms as the judge prescribes.
(2) A party must obtain leave of court, which shall be
granted to the
extent consistent with the principles stated in subsection (b)(2)
of K.S.A.
60-226 and amendments thereto, if the person to be examined is
confined
in prison or if, without the written stipulation of the
parties:
(A) The person to be examined has already been deposed in the
case;
or
(B) a party seeks to take a deposition of a nonparty before
the time
specified in subsection (b) of K.S.A. 60-216 and amendments
thereto.
(3) A party desiring to take a deposition upon written
questions shall
serve them upon every other party with a notice stating
(1) (A) the name
and address of the person who is to answer them, if known, and, if
the
name is not known, a general description sufficient to identify the
person
or the particular class or group to which the person belongs and
(2) (B)
the name or descriptive title and address of the officer before
whom the
deposition is to be taken. A deposition upon written questions may
be
taken of a public or private corporation or a partnership,
association or
governmental agency in accordance with the provisions of
subsection (b)
of K.S.A. 60-230 (b) and amendments
thereto.
(4) Within 30 14 days after the
notice and written questions are
served, a party may serve cross-questions upon all other parties.
Within
10 14 days after being served with
cross-questions, a party may serve
redirect questions upon all other parties. Within
10 14 days after being
served with redirect questions, a party may serve recross-questions
upon
1218 1997 Session Laws of Kansas Ch. 173
all other parties. The court may for cause shown enlarge or
shorten the
time.
(b) Officer to take responses and prepare record. A copy
of the notice
and copies of all questions served shall be delivered by the party
taking
the depositions to the officer designated in the notice, who shall
proceed
promptly, in the manner provided by subsections (c), (e) and (f)
of K.S.A.
60-230 (c), (e) and (f), and amendments thereto,
to take the testimony of
the witness in response to the questions and to prepare, certify
and either
deliver or file or mail the deposition, attaching thereto the copy
of the
notice and the questions received by the officer.
Sec. 15. K.S.A. 60-232 is hereby amended to read as follows:
60-232.
(a) Use of deposition. At the trial or upon the hearing of a
motion or an
interlocutory proceeding, any part or all of a deposition, so far
as admis-
sible under the rules of evidence applied as though the witness
were then
present and testifying, may be used against any party who was
present or
represented at the taking of the deposition or who had reasonable
notice
thereof, in accordance with any of the following
provisions:
(1) Any deposition may be used by any party for the purpose of
con-
tradicting or impeaching the testimony of deponent as a
witness.
(2) The deposition of a party or of any one who at the time of
taking
the deposition was an officer, director, or managing agent, or a
person
designated under K.S.A. 60-230 or 60-231, and amendments thereto,
to
testify on behalf of a public or private corporation, partnership
or asso-
ciation or governmental agency which is a party may be used by an
adverse
party for any purpose.
(3) The deposition of a witness, whether or not a party, may be
used
by any party for any purpose if the court finds that:
(A) The witness is dead;
(B) the witness is at a greater distance than 100 miles from the
place
of trial or hearing, or is out of the state of Kansas, unless it
appears that
the absence of the witness was procured by the party offering the
depo-
sition;
(C) the witness is unable to attend or testify because of age,
illness,
infirmity, or imprisonment;
(D) the party offering the deposition has been unable to procure
the
attendance of the witness by subpoena; or
(E) upon application and notice, such exceptional circumstances
exist
as to make it desirable, in the interest of justice and with due
regard to
the importance of presenting the testimony of witnesses orally in
open
court, to allow the deposition to be used.
A deposition taken without leave of court pursuant to a
notice under
subsection (a)(2)(B) or (a)(2)(C)(ii) of K.S.A. 60-230 and
amendments
thereto, shall not be used against a party who demonstrates that,
when
served with the notice, the party was unable through the exercise
of dil-
Ch. 173 1997 Session Laws of Kansas 1219
igence to obtain counsel to represent such party at the
taking of the dep-
osition.
(4) If only part of a deposition is offered in evidence by a
party, an
adverse party may require him the party to
introduce any other part which
ought in fairness to be considered with the part introduced, and
any party
may introduce any other parts. Substitution of parties pursuant to
K.S.A.
60-225 and amendments thereto does not affect the right to use
deposi-
tions previously taken; and, when an action has been brought
in any court
of the United States or of any state has been
dismissed and another action
involving the same subject matter is afterward brought between the
same
parties or their representatives or successors in interest, all
depositions
lawfully taken in the former action may be used in the latter as if
originally
taken therefor.
(b) Objections to admissibility. Subject to the
provisions of K.S.A. 60- subsection (b) of K.S.A. 60-228 and
amendments thereto and sub-
228(b)
section (d)(3) (e)(3), objection may be
made at the trial or hearing to
receiving in evidence any deposition or part thereof for any reason
which
would require the exclusion of the evidence if the witness were
then
present and testifying.
(c) Form of presentation. Except as otherwise directed by the
court,
a party offering deposition testimony under this section may offer
it in
stenographic or nonstenographic form, but, if in nonstenographic
form,
the party shall also provide the court and opposing parties with a
tran-
script of the entire deposition from which the portions offered
were taken.
On request of any party in a case tried before a jury, deposition
testimony
offered other than for impeachment purposes shall be presented in
non-
stenographic form, if available, unless the court for good cause
orders
otherwise.
(d) Effect of taking or using depositions. A party
does not make a
person the party's own witness for any purpose by taking the
person's
deposition. The introduction in evidence of the deposition or any
part
thereof for any purpose other than that of contradicting or
impeaching
the deponent makes the deponent the witness of the party
introducing
the deposition but this shall not apply to the use by an adverse
party of
a deposition under subsection (a)(2). At the trial or hearing any
party may
rebut any relevant evidence contained in a deposition whether
introduced
by the party or by any other party.
(d) (e) Effect of errors and
irregularities in depositions. (1) As to no-
tice. All errors and irregularities in the notice for taking a
deposition are
waived unless written objection is promptly served upon the party
giving
the notice.
(2) As to disqualification of officer. Objection to
taking a deposition
because of disqualification of the officer before whom it is to be
taken is
waived unless made before the taking of the deposition begins or as
soon
1220 1997 Session Laws of Kansas Ch. 173
thereafter as the disqualification becomes known or could be
discovered
with reasonable diligence.
(3) As to taking of deposition. (A) Objections to the
competency of a
witness or to the competency, relevancy or materiality of testimony
are
not waived by failure to make them before or during the taking of
the
deposition, unless the ground of the objection is one which might
have
been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination
in the
manner of taking the deposition, in the form of the questions or
answers,
in the oath or affirmation or in the conduct of parties, and errors
of any
kind which might be obviated, removed or cured if promptly
presented,
are waived unless seasonable objection thereto is made at the
taking of
the deposition.
(C) Objections to the form of written questions submitted
under
K.S.A. 60-231 and amendments thereto are waived unless served in
writ-
ing upon the party propounding them within the time allowed for
serving
the succeeding cross or other questions and within five days after
service
of the last questions authorized.
(4) As to completion and return of deposition. Errors and
irregulari-
ties in the manner in which the testimony is transcribed or the
deposition
is prepared, signed, certified, sealed, indorsed, transmitted,
filed, deliv-
ered or otherwise dealt with by the officer under K.S.A. 60-230 or
60-
231, and amendments thereto, are waived unless a motion to
suppress
the deposition or some part thereof is made with reasonable
promptness
after such defect is, or with due diligence might have been,
ascertained.
Sec. 16. K.S.A. 60-233 is hereby amended to read as follows:
60-233.
(a) Availability; procedures for use. Any party may serve
upon any other
party written interrogatories to be answered by the party served
or, if the
party served is a public or private corporation or a partnership,
association
or governmental agency, by any officer or agent, who shall furnish
such
information as is available to the party. Interrogatories
may, without leave
of court, may be served upon the plaintiff after
commencement of the
action and upon any other party with or after service of process
upon that
party.
(b) Answers and objections. (1) Each interrogatory
shall be answered
separately and fully in writing under oath, unless it is objected
to, in which
event the objecting party shall state the reasons for
objection shall be and shall answer to the
extent the interrogatory
stated in lieu of an answer
is not objectionable.
(2) The answers are to be signed by the person making
them the
answers, and the objections signed by the attorney making
them the ob-
jections.
(3) The party upon whom the interrogatories have been
served shall
serve a copy of the answers, and objections if any, within 30 days
after
Ch. 173 1997 Session Laws of Kansas 1221
the service of the interrogatories, except that a defendant may
serve an-
swers or objections within 45 days after service of process upon
that de-
fendant. The court may allow a shorter or longer time.
(4) All grounds for an objection to an interrogatory shall be
stated
with specificity. Any ground not stated in a timely objection is
waived
unless the party's failure to object is excused by the court for
good cause
shown.
(5) The party submitting the interrogatories may move for
an order
under subsection (a) of K.S.A. 60-237 and amendments thereto with
re-
spect to any objection to or other failure to answer an
interrogatory.
(b) (c) Scope; use at trial.
Interrogatories may relate to any matters
which can be inquired into under subsection (b) of K.S.A. 60-226
and
amendments thereto and the answers may be used to the extent
permit-
ted by the rules of evidence.
An interrogatory otherwise proper is not necessarily
objectionable
merely because an answer to the interrogatory involves an opinion
or
contention that relates to fact or the application of law to fact,
but the
court may order that such an interrogatory need not be answered
until
after designated discovery has been completed or until a pretrial
confer-
ence or other later time.
(c) (d) Option to produce business
records. Where the answer to an
interrogatory may be derived or ascertained from the business
records of
the party upon whom the interrogatory has been served or from an
ex-
amination, audit or inspection of such business records, or from a
com-
pilation, abstract or summary based thereon, and the burden of
deriving
or ascertaining the answer is substantially the same for the party
serving
the interrogatory as for the party served, it is a sufficient
answer to such
interrogatory to specify the records from which the answer may be
de-
rived or ascertained and to afford to the party serving the
interrogatory
reasonable opportunity to examine, audit or inspect such records
and to
make copies, compilations, abstracts or summaries. A specification
shall
be in sufficient detail to permit the interrogating party to locate
and to
identify, as readily as can the party served, the records from
which the
answer may be ascertained.
Sec. 17. K.S.A. 60-234 is hereby amended to read as follows:
60-234.
(a) Scope. Any party may serve on any other party a request
(1) to produce
and permit the party making the request, or someone acting on the
party's
behalf, to inspect and copy any designated documents (including
writings,
drawings, graphs, charts, photographs, phono-records and other
data
compilations from which information can be obtained, translated, if
nec-
essary, by the respondent through detection devices into
reasonable rea-
sonably usable form), or to inspect and copy, test or sample
any tangible
things which constitute or contain matters within the scope of
subsection
(b) of K.S.A. 60-226 and amendments thereto and which are in the
pos-
1222 1997 Session Laws of Kansas Ch. 173
session, custody or control of the party upon whom the request
is served;
or (2) to permit entry upon designated land or other property in
the
possession or control of the party upon whom the request is served
for
the purpose of inspection and measuring, surveying, photographing,
test-
ing or sampling the property or any designated object or
operation
thereon, within the scope of subsection (b) of K.S.A. 60-226 and
amend-
ments thereto.
(b) Procedure. The request may, without
leave of court, may be
served upon the plaintiff after commencement of the action and
upon
any other party with or after service of process upon that party.
The
request shall set forth the items to be inspected either by
individual item
or by category, and describe each item and category with reasonable
par-
ticularity. The request shall specify a reasonable time, place and
manner
of making the inspection and performing the related acts.
The party upon whom the request is served shall serve a written
re-
sponse within 30 days after the service of the request, except that
a de-
fendant may serve a response within 45 days after service of
process upon
that defendant. The court may allow a shorter or longer time. The
re-
sponse shall state, with respect to each item or category, that
inspection
and related activities will be permitted as requested unless the
request is
objected to, in which event the reasons for objection shall be
stated. If
objection is made to part of an item or category, the part shall be
specified
and inspection permitted of the remaining parts. The party
submitting
the request may move for an order under subsection (a) of K.S.A.
60-237
and amendments thereto with respect to any objection to or other
failure
to respond to the request or any part thereof, or any failure to
permit
inspection as requested. A party who produces documents for
inspection
shall produce them as they are kept in the usual course of business
or
shall organize and label them to correspond to the categories in
the re-
quest.
(c) Persons not parties. This rule does not
preclude an independent A person not a party
to the action may
action against a person not a party for production of documents and
things
and permission to enter upon land
be compelled to produce documents and things or to submit to an
inspec-
tion as provided in K.S.A. 60-245 and 60-245a and amendments
thereto.
Sec. 18. K.S.A. 60-235 is hereby amended to read as follows:
60-235.
(a) Order for examination. When the mental or physical
condition (, in-
cluding the blood group), of a party, or of
a person in the custody or
under the legal control of a party, is in controversy, the court in
which
the action is pending may order the party to submit to a physical
or mental
examination by a physician suitably licensed or
certified examiner or to
produce for examination the person in the party's custody or legal
control.
The order may be made only on motion for good cause shown and
upon
notice to the person to be examined and to all parties and shall
specify
Ch. 173 1997 Session Laws of Kansas 1223
the time, place, manner, conditions and scope of the examination
and the
person or persons by whom it is to be made. The moving party
shall
advance the expenses which will necessarily be incurred by the
party to
be examined.
(b) Report of examining physician
examiner. (1) If requested by the
party against whom an order is made under subsection (a) or by
the
person examined, the party causing the examination to be made
shall
deliver to the party or person making the request a copy of a
detailed
written report of the examining physician
examiner, setting out the phy- examiner's findings, including results of
all tests made, diagnoses
sician's
and conclusions, together with like reports of all earlier
examinations of
the same condition.
(2) This subsection applies to examinations made by agreement
of
the parties, unless the agreement expressly provides otherwise.
This sub-
section does not preclude discovery of a report of an
examining physicianexaminer or the
taking of a deposition of the physician
examiner in ac-
cordance with the provisions of any other rule.
(c) Reports of other examinations. Any party shall be
entitled upon
request to receive from a party a report of any examination,
previously or
thereafter made, of the condition in controversy, except that the
party
shall not be required to provide such a report if the examination
is of a
person not a party and the party is unable to obtain a report
thereof.
Reports required to be provided under this subsection shall contain
the
same information as specified for reports under subsection
(b).
(d) Order requiring delivery of report. The court on
motion may
make an order against a party requiring delivery of a report under
sub-
section (b) or (c) on such terms as are just. If a
physician an examiner
fails or refuses to make or deliver such a report, the court may
exclude
the physician's examiner's testimony if
offered at the trial.
Sec. 19. K.S.A. 60-236 is hereby amended to read as follows:
60-236.
(a) Request for admission. A party may serve upon any other
party a
written request for the admission, for purposes of the pending
action only,
of the truth of any matters within the scope of K.S.A. 60-226,
and amend-
ments thereto, set forth in the request that relate to
statements or opinions
of fact or of the application of law to fact, including the
genuineness of
any documents described in the request. Copies of documents shall
be
served with the request unless they have been or are otherwise
furnished
or made available for inspection and copying. The request
may, without
leave of the judge, may be served upon the plaintiff after
commencement
of the action and upon any other party with or after service of
process
upon that party. Each matter of which an admission is requested
shall be
separately set forth. The A matter is
admitted unless, within thirty (30)30
days after service of the request, or within such shorter or longer
time
as the court may allow, the party to whom the request is directed
serves
1224 1997 Session Laws of Kansas Ch. 173
upon the party requesting the admission a written answer or
objection
addressed to the matter, signed by the party or by
his such party's attor-
ney, but, unless the court shortens the time, a defendant shall not
be
required to serve answers or objections before the expiration of
forty-five 45 days after service of process upon
(45)him the defendant. If objection
is made, the reasons therefor shall be stated. The answer shall
specifically
deny the matter or set forth in detail the reasons why the
answering party
cannot truthfully admit or deny the matter. A denial shall fairly
meet the
substance of the requested admission, and when good faith requires
that
a party qualify his such party's answer or
deny only a part of the matter
of which an admission is requested, he such
party shall specify so much
of it as is true and qualify or deny the remainder. An answering
party may
not give lack of information or knowledge as a reason for failure
to admit
or deny unless he such party states that
he such party has made reason-
able inquiry and that the information known or readily obtainable
by himsuch party is insufficient to
enable him such party to admit or deny.
A
party who considers that a matter of which an admission has been
re-
quested presents a genuine issue for trial may not, on that ground
alone,
object to the request; he may such party,
subject to the provisions of
subsection (c) of K.S.A. 60-237(c), and
amendments thereto, may deny
the matter or set forth reasons why he such
party cannot admit or deny
it.
The party who has requested the admissions may move to
determine
the sufficiency of the answers or objections. Unless the judge
determines
that an objection is justified, he the
judge shall order that an answer be
served. If the judge determines that an answer does not comply with
the
requirements of this rule, he the judge may
order either that the matter
is admitted or that an amended answer be served. The judge
may, in lieu
of these orders, may determine that final disposition of the
request be
made at a pretrial conference or at a designated time prior to
trial. The
provisions of subsection (a) of K.S.A.
60-237(a), and amendments thereto,
apply to the award of expenses incurred in relation to the
motion.
(b) Effect of admission. Any matter admitted under this
rule is con-
clusively established unless the judge on motion permits withdrawal
or
amendment of the admission. Subject to the provisions of K.S.A.
60-216,
and amendments thereto, governing amendment of a pretrial
order, the
judge may permit withdrawal or amendment when the presentation
of
the merits of the action will be subserved thereby and the party
who
obtained the admission fails to satisfy the judge that withdrawal
or amend-
ment will prejudice him such party in
maintaining his such party's action
or defense on the merits. Any admission made by a party under this
rule
is for the purpose of the pending action only and is not an
admission by
him such party for any other purpose nor
may it be used against himsuch party in
any other proceeding.
Ch. 173 1997 Session Laws of Kansas 1225
Sec. 20. K.S.A. 60-237 is hereby amended to read as follows:
60-237.
(a) Motion for order compelling disclosure or discovery. A
party, upon
reasonable notice to other parties and all persons affected
thereby, may
apply for an order compelling disclosure or discovery as
follows:
(1) Appropriate court. An application for an order to a
party may be
made to the court in which the action is pending, or, on matters
relating
to a deposition, to the judge in the district where the deposition
is being
taken. An application for an order to a deponent who is not a party
shall
be made to the judge in the district where the deposition is being
taken.
(2) Motion. (A) If a party fails to make a disclosure
required by sub-
section (b)(6) of K.S.A. 60-226 and amendments thereto, any other
party
may move to compel disclosure and for appropriate sanctions. The
motion
shall include a certification that the movant has in good faith
conferred
or attempted to confer with the party not making the disclosure in
an
effort to secure the disclosure without court action and shall
describe the
steps taken by all counsel or unrepresented parties to resolve the
issues
in dispute.
(B) If a deponent fails to answer a question propounded
or submitted
under K.S.A. 60-230 or 60-231 and amendments thereto, or a
corporation
or other entity fails to make a designation under K.S.A
60-230 (b) or subsection (b) of K.S.A. 60-230 or
subsection (a) of K.S.A.
60-231 (a)
60-231 and amendments thereto, or a party fails to answer an
interrogatory
submitted under K.S.A. 60-233 and amendments thereto, or if
a party, in
response to a request for inspection submitted under K.S.A. 60-234
and
amendments thereto fails to respond that inspection will be
permitted as
requested or fails to permit inspection as requested, the
discovering party
may move for an order compelling an answer, or a designation, or
an
order compelling inspection in accordance with the request. The
motion
shall include a certification that the movant has in good faith
conferred
or attempted to confer with the person or party failing to make the
dis-
covery in an effort to secure the information or material without
court
action and shall describe the steps taken by all counsel or
unrepresented
parties to resolve the issues in dispute. When taking a
deposition on oral
examination, the proponent of the question may complete or adjourn
the
examination before he applies applying for
an order.
If the judge denies the motion in whole or in part, he
may make such
protective order as he would have been empowered to make on a
motion
made pursuant to K.S.A. 60-226 (c).
(3) Evasive or incomplete disclosure, answer or response.
For pur-
poses of this subdivision an evasive or incomplete
disclosure, answer or
response is to be treated as a failure to disclose,
answer or respond.
(4) Award of expenses of motion. Expenses
and sanctions. (A) If the
disclosure or requested discovery is provided after the motion is
filed but
before the court rules on the motion, the court, after affording an
oppor-
tunity to be heard, may require the party or deponent whose
conduct
1226 1997 Session Laws of Kansas Ch. 173
necessitated the motion or the party or attorney advising
such conduct or
both of them to pay to the moving party the reasonable expenses
incurred
in making the motion, including attorney fees. Expenses shall not
be
awarded under this subparagraph if the court finds that the motion
was
filed without the movant's first making a good faith effort to
obtain the
disclosure or discovery without court action, or that the opposing
party's
nondisclosure, response or objection was substantially justified,
or that
other circumstances make an award of expenses unjust.
(B) If the motion is granted, the judge
court shall, after affording an
opportunity for hearing to be heard,
require the party or deponent whose
conduct necessitated the motion or the party or attorney advising
such
conduct or both of them to pay to the moving party the reasonable
ex-
penses incurred in obtaining the order making
the motion, including at- attorney fees, unless the
torney'sjudge court finds that the
opposition to motion was filed without the movant's first making
a good faith effort
the
to obtain the disclosure or discovery without court action, or that
the
opposing party's nondisclosure, response or objection was
substantially
justified or that other circumstances make an award of expenses
unjust.
(C) If the motion is denied, the judge
court may enter any protective
order authorized under subsection (c) of K.S.A. 60-226 and
amendments
thereto, and shall, after affording an opportunity
for hearing to be heard,
require the moving party or the attorney advising
filing the motion or
both of them to pay to the party or deponent who opposed the
motion
the reasonable expenses incurred in opposing the motion, including
at- attorney fees, unless the
torney'sjudge court finds that the making of
the
motion was substantially justified or that other circumstances make
an
award of expenses unjust.
(D) If the motion is granted in part and denied in part,
the judgecourt may enter any
protective order authorized under subsection (c) of
K.S.A. 60-226 and amendments thereto, and, may, after affording an
op-
portunity to be heard, apportion the reasonable expenses
incurred in re-
lation to the motion among the parties and persons in a just
manner.
(b) Failure to comply with order. (1) Sanctions by
judge in district
where deposition is taken. If a deponent fails to be sworn or
to answer a
question after being directed to do so by the judge in the district
in which
the deposition is being taken, the failure may be considered a
contempt
of that court.
(2) Sanctions by court in which action is pending. If a
party or an
officer, director or managing agent of a party or a person
designated
under K.S.A. 60-230 (b) or 60-231 (a)
subsection (b) of K.S.A. 60-230 or
subsection (a) of K.S.A. 60-231 and amendments thereto to
testify on
behalf of a party fails to obey an order to provide or permit
discovery,
including an order made under subdivision (a) of this section or
under
K.S.A. 60-235 and amendments thereto, the judge before whom
the action
Ch. 173 1997 Session Laws of Kansas 1227
is pending may make such orders in regard to the failure as are
just, and
among others the following:
(A) An order that the matters regarding which the order was
made
or any other designated facts shall be taken to be established for
the
purposes of the action in accordance with the claim of the party
obtaining
the order;
(B) An order refusing to allow the disobedient party to support
or
oppose designated claims or defenses, or prohibiting
him such disobedient
party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further
proceedings until the order is obeyed, or dismissing the action or
pro-
ceeding or any part thereof, or rendering a judgment by default
against
the disobedient party;
(D) In lieu of any of the foregoing orders or in addition
thereto, an
order treating as a contempt of court the failure to obey any
orders except
an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under
K.S.A. subsection (a) of K.S.A. 60-235 and
amendments thereto re-
60-235 (a)
quiring him such party to produce another
for examination, such orders
as are listed in paragraphs (A), (B) and (C) of this subsection,
unless the
party failing to comply shows that he such
party is unable to produce
such person for examination.
In lieu of any of the foregoing orders or in addition thereto,
the judge
shall require the party failing to obey the order or the attorney
advising
him such party or both to pay the
reasonable expenses, including attor- attorney fees, caused by the failure, unless
the judge finds that the
ney's
failure was substantially justified or that other circumstances
make an
award of expenses unjust.
(c) Expenses on failure to admit. Failure to
disclose; false or mislead-
ing disclosure; refusal to admit. (1) A party that without
substantial jus-
tification fails to disclose information required by subsection
(b)(6) or
(e)(1) of K.S.A. 60-226, and amendments thereto, shall not, unless
such
failure is harmless, be permitted to use as evidence at trial, at a
hearing,
or on a motion any witness or information not so disclosed. In
addition
to or in lieu of this sanction, the court, on motion and after
affording an
opportunity to be heard, may impose other appropriate sanctions. In
ad-
dition to requiring payment of reasonable expenses, including
attorney
fees, caused by the failure, these sanctions may include any of the
actions
authorized under subparagraphs (A), (B) and (C) of subsection
(b)(2) and
may include informing the jury of the failure to make the
disclosure.
(2) If a party fails to admit the genuineness of any
documents or the
truth of any matter, as requested under K.S.A. 60-236 and
amendments
thereto, and if the party requesting the admissions thereafter
proves the
genuineness of the document or the truth of the matter,
he such party
may apply to the judge for an order requiring the other party to
pay him
1228 1997 Session Laws of Kansas Ch. 173
such party the reasonable expenses incurred in making
such proof, in-
cluding reasonable attorney's fees. The judge shall make the order
unless
he the judge finds that
(1) (A) the request was held objectionable
to
subsection (a) of K.S.A. 60-236 (a)
60-236, or (2) (B) the admission
sought
was of no substantial importance, or (3)
(C) the party failing to admit had
reasonable ground to believe that he might prevail on the matter,
or (4)(D) there was other good reason
for the failure to admit.
(d) Failure of party to attend at own deposition or serve
answers to
interrogatories or respond to request for inspection. If a
party or an of-
ficer, director, or managing agent of a party or a person
designated under
K.S.A. 60-230 (b) or 60-231 (a) under
subsection (b) of K.S.A. 60-230 or
subsection (a) of K.S.A. 60-231 and amendments thereto to
testify on
behalf of a party fails (1) to appear before the officer who is to
take his
deposition, after being served with a proper notice, or (2) to
serve answers
or objections to interrogatories submitted under K.S.A. 60-233
and
amendments thereto, after proper service of the
interrogatories, or (3) to
serve a written response to a request for inspection submitted
under
K.S.A. 60-234 and amendments thereto after proper service of
the re-
quest, the court in which the action is pending on motion may make
such
orders in regard to the failure as are just, and among others it
may take
any action authorized under paragraphs (A), (B) and (C) of
subsection
(b) (2) of this section. Any motion specifying a failure under
clause (2) or
(3) of this subsection shall include a certification that the
movant has in
good faith conferred or attempted to confer with the party failing
to an-
swer or respond in an effort to obtain such answer or response
without
court action. In lieu of any order or in addition thereto, the
judge shall
require the party failing to act or the attorney advising
him such party or
both to pay the reasonable expenses, including
attorney's attorney fees,
caused by the failure, unless the judge finds that the failure was
substan-
tially justified or that other circumstances make an award of
expenses
unjust.
The failure to act described in this subsection may not be
excused on
the ground that the discovery sought is objectionable unless the
party
failing to act has applied a pending motion
for a protective order as pro-
vided by K.S.A. 60-226 (c) subsection (c) of
K.S.A. 60-226 and amend-
ments thereto.
Sec. 21. K.S.A. 60-238 is hereby amended to read as follows:
60-238.
(a) Right preserved. The right of trial by jury as declared
by section 5 of
the bill of rights in the Kansas constitution, and as given by a
statute of
the state shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any
issue triable
of right by a jury by: (1) Serving upon the other parties a
demand therefor
in writing at any time after the commencement of the action and not
later
than ten (10) 10 days after the service of
the last pleading directed to
Ch. 173 1997 Session Laws of Kansas 1229
such issue; and (2) filing the demand as required by K.S.A.
60-205 and
amendments thereto. Such demand may be indorsed upon a pleading
of
the party.
(c) Same; specification of issues. In his or
her the demand a party may
specify the issues which he or she the
party wishes so tried; otherwise he the party shall be deemed to have demanded
trial by jury for all
or she
the issues so triable. If the party has demanded trial by jury for
only some
of the issues, any other party within ten (10)
10 days after service of the
demand or such lesser time as the court may order, may serve a
demand
for trial by jury of any other or all of the issues of fact in the
action.
(d) Waiver. The failure of a party to serve and
file a demand as re-
quired by this rule and to file it as required by K.S.A.
60-205 section
constitutes a waiver by him or her the
party of trial by jury but waiver of
a jury trial may be set aside by the judge in the interest of
justice or when
the waiver inadvertently results without serious negligence of the
party.
A demand for trial by jury made as herein provided may not be
withdrawn
without the consent of the parties.
Sec. 22. K.S.A. 60-241 is hereby amended to read as follows:
60-241.
(a) Voluntary dismissal; effect thereof. (1) By
plaintiff; by stipulation.
Subject to the provisions of subsection (e) of K.S.A. 60-223 and
amend-
ments thereto and of any statute of the state, an action may be
dismissed
by the plaintiff without order of court (i) by filing a notice of
dismissal at
any time before service by the adverse party of an answer or of a
motion
for summary judgment, whichever first occurs, or (ii) by filing a
stipulation
of dismissal signed by all parties who have appeared in the action.
Where
the dismissal is by stipulation the clerk of the court shall enter
an order
of dismissal as a matter of course. Unless otherwise stated in the
notice
of dismissal or stipulation, the dismissal is without prejudice,
except that
a notice of dismissal operates as an adjudication upon the merits
when
filed by a plaintiff who has once dismissed in any court of the
United
States or of any state an action based on or including the same
claim.
(2) By order of court. Except as provided in paragraph
(1) of this
subsection, an action shall not be dismissed at the plaintiff's
instance save
upon order of the judge and upon such terms and conditions as the
judge
deems proper. If a counterclaim has been pleaded by a defendant
prior
to the service upon the defendant of the plaintiff's motion to
dismiss, the
action shall not be dismissed against the defendant's objection
unless the
counterclaim can remain pending for independent adjudication by
the
court. Unless otherwise specified in the order, a dismissal under
this par-
agraph is without prejudice. The judge may on the judge's
own motion
cause a case to be dismissed without prejudice for lack of
prosecution,
but only after directing the clerk to notify counsel of record not
less than
ten (10) days in advance of such intended dismissal, that an order
of
dismissal will be entered unless cause be shown for not doing
so.
1230 1997 Session Laws of Kansas Ch. 173
(b) Involuntary dismissal; effect thereof. (1) For
failure of the plaintiff
to prosecute or to comply with these sections or any order of
court, a
defendant may move for dismissal of an action or of any claim
against the
defendant. After the plaintiff, in an action tried by the
court without a Unless the court in its order
for dismissal oth-
jury, has completed the presentation of the plaintiff's evidence,
the de-
fendant, without waiving the defendant's right to offer evidence in
the
event the motion is not granted, may move for a dismissal on the
ground
that upon the facts and the law the plaintiff has shown no right to
relief.
The court as trier of the facts may then determine them and
render
judgment against the plaintiff or may decline to render any
judgment
until the close of all evidence. If the court renders judgment on
the merits
against the plaintiff, the court shall make findings as provided in
subsec-
tion (a) of K.S.A. 60-252.
erwise specifies, a dismissal under this
subsection paragraph and any
dismissal not provided for in this section, other than a dismissal
for lack
of jurisdiction, for improper venue, or for failure to join a party
under
K.S.A. 60-219 and amendments thereto, operates as an
adjudication upon
the merits.
(2) The judge may on the judge's own motion cause a case to
be dis-
missed without prejudice for lack of prosecution, but only after
directing
the clerk to notify counsel of record not less than 10 days in
advance of
such intended dismissal, that an order of dismissal will be entered
unless
cause be shown for not doing so.
(c) Dismissal of counterclaim, cross-claim, or third-party
claim. The
provisions of this section apply to the dismissal of any
counterclaim, cross-
claim, or third-party claim. A voluntary dismissal by the claimant
alone
pursuant to paragraph (1) of subsection (a) shall be made before a
re-
sponsive pleading is served or, if there is none, before the
introduction
of evidence at the trial or hearing.
(d) Costs of previously dismissed action. If a plaintiff
who has once
dismissed an action in any court commences an action based upon
or
including the same claim against the same defendant, the court may
make
such order for the payment of costs of the action previously
dismissed as
it may deem deems proper and may stay the
proceedings in the action
until the plaintiff has complied with the order.
Sec. 23. K.S.A. 60-243 is hereby amended to read as follows:
60-243.
(a) Form and admissibility. In all trials the testimony of
witnesses shall
be taken orally in open court, unless otherwise provided by this
article.
All evidence shall be admitted which is admissible under specific
statutes
or article 4 of this chapter. The competency of a witness to
testify shall
be determined in like manner.
(b) Scope of examination and cross-examination. A party
may inter-
rogate any unwilling or hostile witness by leading questions. A
party may
call an adverse party or an officer, director, or managing agent of
a public
Ch. 173 1997 Session Laws of Kansas 1231
or private corporation or of a partnership or association which
is an ad-
verse party, and interrogate him such
witness by leading questions and
contradict him such witness and impeach
him such witness in all respects
as if he such witness had been called by
the adverse party, and the witness
thus called may be contradicted and impeached by or on behalf of
the
adverse party also, and may be cross-examined by the adverse party
only
upon the subject matter of his such
witness' examination in chief.
(c) Record of excluded evidence. In an action tried by a
jury, if an
objection to a question propounded to a witness is sustained by the
court,
the examining attorney may make a specific offer of what
he the exam-
ining attorney expects to prove by the answer of the witness.
The offer
shall be made out of the hearing of the jury. The court may add
such
other or further statement as clearly shows the character of the
evidence,
the form in which it was offered, the objection made, and the
ruling
thereon. In actions tried without a jury the same procedure may be
fol-
lowed, except that the court upon request shall take and report the
evi-
dence in full, unless it clearly appears that the evidence is not
admissible
on any ground or that the witness is privileged.
(d) Evidence on motions. When a motion is based on facts
not ap-
pearing of record the court may hear the matter on affidavits
presented
by the respective parties, but the court may direct that the matter
be
heard wholly or partly on oral testimony or depositions.
(e) Interpreters. In accordance with K.S.A. 75-4351 through
75-
4355d and amendments thereto, the court may appoint an
interpreter of
its own selection and may determine the reasonable
compensation of such fix the interpreter's reasonable compensation.
The compensation
interpreter, and direct its payment out of such funds as may be
provided
by law
shall be paid out of funds provided by law or, subject to the
limitations
in K.S.A. 75-4352 and 75-4355b and amendments thereto, by one or
more
of the parties as the court may direct, and may be taxed ultimately
as
costs, in the discretion of the court.
Sec. 24. K.S.A. 60-245 is hereby amended to read as follows:
60-245.
(a) For attendance of witnesses; Form;
issuance. (1) Every subpoena for shall:
attendance of a witness shall be issued by the clerk under the seal
of the
court or by a judge,
(A) State the name of the court and
from which it is issued;
(B) state the title of the action, and
shall the name of the court in
which it is pending and the file number of the action;
(C) command each person to whom it is directed to attend
and give
testimony or to produce and permit inspection and copying of
designated
books, documents or tangible things in the possession, custody or
control
of that person, or to permit inspection of premises, at a time
and place
specified in the subpoena; and
(D) set forth the text of subsections (c) and (d) of this
section.
1232 1997 Session Laws of Kansas Ch. 173
A command to produce evidence or to permit inspection may be
joined
with a command to appear at trial or hearing or at deposition, or
may be
issued separately. Subpoena and production of records of a
business
which is not a party shall be in accordance with K.S.A. 60-245a
and
amendments thereto.
(2) A subpoena commanding attendance at a trial or hearing
shall
issue from the district court in which the hearing or trial is to
be held. A
subpoena for attendance at a deposition shall issue from the
district court
in which the action is pending or the officer before whom the
deposition
is to be taken or, if the deposition is to be taken outside the
state, from
an officer authorized by the law of the other state to issue the
subpoena.
If separate from a subpoena commanding the attendance of a person,
a
subpoena for production or inspection shall issue from the district
court
in which the action is pending or, if the production or inspection
is to be
made outside the state, an officer authorized by the law of the
other state
to issue the subpoena.
(3) Every subpoena issued by the court shall be issued by the
clerk
under the seal of the court or by a judge. Upon request of a party,
the
clerk shall issue a blank subpoena. The blank subpoena shall bear
the seal
of the court, the title and file number of the action and the
clerk's signature
or a facsimile of the clerk's signature. The party to whom a blank
subpoena
is issued shall fill it in before service.
(b) For production of documentary
evidence. A subpoena may also
command the person to whom it is directed to produce the books,
papers,
documents or tangible things designated in the subpoena, but the
court,
upon motion made promptly and at or before the time specified in
the
subpoena for compliance therewith, may (1) quash or modify the
sub-
poena if it is unreasonable or oppressive or (2) condition denial
of the
motion upon the advancement by the person in whose behalf the
sub-
poena is issued of the reasonable cost of producing the books,
papers,
documents or tangible things.
Subpoena and production of records of a business which
is not a party
shall be in accordance with K.S.A. 60-245a, and amendments
thereto.
(c) Blank subpoenas.
Upon request of a party, the clerk shall issue a
blank subpoena for the attendance of a witness or the production of
doc-
umentary evidence. The blank subpoena shall bear the seal of the
court,
the title and file number of the action and the clerk's signature
or a
facsimile of the clerk's signature. The party to whom a blank
subpoena is
issued shall fill it in before service.
(d) Service. Service of a subpoena upon
a person named therein may
be made anywhere within the state, shall be made in accordance
with
K.S.A. 60-303, and amendments thereto, and shall, if the
person's at-
tendance is commanded, be accompanied by the fees for one
day's
attendance and the mileage allowed by law. When sought
independently
of a deposition, prior notice of any commanded production of
documents
Ch. 173 1997 Session Laws of Kansas 1233
or inspection of premises before trial shall be served on
each party in the
manner prescribed by subsection (b) of K.S.A. 60-205 and
amendments
thereto.
(e) Subpoena or notice for taking
depositions; place of examination.
(1) Proof of service of a notice to take a deposition as
provided in sub-
section (b) of K.S.A. 60-230 and subsection (a) of K.S.A. 60-231,
and
amendments thereto, constitutes sufficient authorization for the
issuance
of subpoenas for the person named or described in the notice. In
addition
to those mentioned in subsection (a), a subpoena for taking
depositions
may be issued by the officer before whom the deposition is to be
taken,
by the clerk of the district court where the deposition is to be
taken or,
if the deposition is to be taken outside the state, by an officer
authorized
by the law of the other state to issue the subpoena. The subpoena
may
command the person to whom it is directed to produce and permit
in-
spection and copying of designated books, papers, documents or
tangible
things which constitute or contain matters within the scope of the
ex-
amination permitted by subsection (b) of K.S.A. 60-226 and
amendments
thereto, but in that event the subpoena will be subject to the
provisions
of subsection (c) of K.S.A. 60-226 and amendments thereto and
subsec-
tion (c). In lieu of the procedure outlined in K.S.A. 60-234 and
amend-
ments thereto, when a party gives notice of the taking of the
deposition
of another party, the notice of taking the deposition and the
contents of
the notice will be as compelling upon the party as a
subpoena.
Within 10 days after the service of a subpoena or at or
before the time
specified in the subpoena for compliance, if the time is less than
10 days
after service, a party or person to whom the subpoena is directed
may
serve upon the attorney designated in the subpoena written
objection to
inspection or copying of any or all of the designated materials. If
objection
is made, the party serving the subpoena shall not be entitled to
inspect
and copy the materials except pursuant to an order of the court
from
which the subpoena was issued. If objection has been made, the
party
serving the subpoena may move upon notice to the deponent for an
order
at any time before or during the taking of the
deposition.
(2) A resident of this state shall not be required to
attend an exami-
nation at a place which is not within 50 miles of the place of the
resident's
residence, the place of the resident's employment or the place of
the
resident's principal business. A nonresident shall not be required
to at-
tend an examination at a place which is more than 50 miles from the
place
where the nonresident is served with the subpoena. A party or
employee
of a party, whether a resident or nonresident of the state, may be
required
by order of the court to attend an examination at any place
designated by
the court.
(c) Protection of persons subject to subpoenas.
(1) A party or an attorney responsible for the issuance and
service of
a subpoena shall take reasonable steps to avoid imposing undue
burden
1234 1997 Session Laws of Kansas Ch. 173
or expense on a person subject to that subpoena. The court on
behalf of
which the subpoena was issued shall enforce this duty and impose
upon
the party or attorney in breach of this duty an appropriate
sanction,
which may include, but is not limited to, a reasonable attorney
fee.
(2) (A) A person commanded to produce and permit inspection
and
copying of designated books, papers, documents or tangible things
or in-
spection of premises need not appear in person at the place of
production
or inspection unless commanded to appear for deposition, hearing or
trial.
(B) Subject to subsection (d)(2), a person commanded to
produce and
permit inspection and copying may, within 14 days after service of
the
subpoena or before the time specified for compliance if such time
is less
than 14 days after service, serve upon the party or attorney
designated
in the subpoena written objection to inspection or copying of any
or all
of the designated materials or of the premises. If objection is
made, the
party serving the subpoena shall not be entitled to inspect and
copy the
materials or inspect the premises except pursuant to an order of
the court
by which the subpoena was issued. If objection has been made, the
party
serving the subpoena may, upon notice to the person commanded to
pro-
duce, move at any time for an order to compel the production. Such
an
order to compel production shall protect any person who is not a
party
or an officer of a party from significant expense resulting from
the in-
spection and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was
issued
shall quash or modify the subpoena if it:
(i) Fails to allow reasonable time for
compliance;
(ii) requires a resident of this state who is not a party or
an officer of
a party to travel to a place more than 100 miles from the place
where that
person resides, is employed or regularly transacts business in
person or
requires a nonresident who is not a party or an officer of a party
to travel
to a place more than 100 miles from the place where the nonresident
was
served with the subpoena, is employed or regularly transacts
business,
except that, subject to the provisions of subsection
(c)(3)(B)(iii), such a
nonparty may in order to attend trial be commanded to travel to the
place
of trial;
(iii) requires disclosure of privileged or other protected
matter and
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena:
(i) Requires disclosure of a trade secret or other
confidential research,
development or commercial information; or
(ii) requires disclosure of an unretained expert's opinion or
informa-
tion not describing specific events or occurrences in dispute and
resulting
from the expert's study made not at the request of any party;
or
(iii) requires a person who is not a party or an officer of a
party to
incur substantial expense to travel more than 100 miles to attend
trial,
Ch. 173 1997 Session Laws of Kansas 1235
the court may, to protect a person subject to or affected by
the subpoena,
quash or modify the subpoena or, if the party in whose behalf the
sub-
poena is issued shows a substantial need for the testimony or
material
that cannot be otherwise met without undue hardship and assures
that
the person to whom the subpoena is addressed will be reasonably
com-
pensated, the court may order appearance or production only upon
spec-
ified conditions.
(3) (4) A person confined in prison may
be required to appear for
examination by deposition only in the county where the person is
im-
prisoned.
(f) Subpoena for a hearing or
trial. Subpoenas for attendance at a
hearing or trial shall be issued at the request of any party. A
subpoena
requiring the attendance of a witness at a hearing or trial may be
served
at any place within the state.
(d) Duties in responding to subpoena. (1) A person
responding to a
subpoena to produce documents shall produce them as they are kept
in
the usual course of business or shall organize and label them to
correspond
with the categories in the demand.
(2) When information subject to a subpoena is withheld on a
claim
that such information is privileged or subject to protection as
trial prep-
aration materials, the claim shall be made expressly and shall be
supported
by a description of the nature of the documents, communications or
things
not produced that is sufficient to enable the demanding party to
contest
the claim.
(g) (e) Contempt. Failure by any
person without adequate excuse to
obey a subpoena served upon the person may be considered a
contempt
of the court in which the action is pending or the court of the
county in
which the deposition is to be taken. Punishment for contempt shall
be in
accordance with K.S.A. 20-1204 and amendments thereto. An
adequate
cause for failure to obey exists when a subpoena purports to
require a
nonparty to attend or produce at a place not within the limits
provided
by subsection (c)(3)(A)(iii).
Sec. 25. K.S.A. 60-245a is hereby amended to read as follows:
60-
245a. (a) As used in this section:
(1) ``Business'' means any kind of business, profession,
occupation,
calling or operation of institutions, whether carried on for profit
or not.
(2) ``Business records'' means writings made by personnel or
staff of
a business, or persons acting under their control, which are
memoranda
or records of acts, conditions or events made in the regular course
of
business at or about the time of the act, condition or event
recorded.
(b) A subpoena duces tecum which commands the production of
business records in an action in which the business is not a party
shall
inform the person to whom it is directed that the person may serve
upon
the attorney designated in the subpoena written objection to
production
1236 1997 Session Laws of Kansas Ch. 173
of any or all of the business records designated in the subpoena
within
10 14 days after the service of the
subpoena or at or before the time for
compliance, if the time is less than 10 14
days after service. If such ob-
jection is made, the business records need not be produced except
pur-
suant to an order of the court upon motion with notice to the
person to
whom the subpoena was directed.
Unless the personal attendance of a custodian of the business
records
and the production of original business records are required under
sub-
section (d), it is sufficient compliance with a subpoena of
business records
if a custodian of the business records delivers to the clerk of the
court by
mail or otherwise a true and correct copy of all the records
described in
the subpoena and mails a copy of the affidavit accompanying the
records
to the party or attorney requesting them within 10
14 days after receipt
of the subpoena.
The records described in the subpoena shall be accompanied by
the
affidavit of a custodian of the records, stating in substance each
of the
following: (1) The affiant is a duly authorized custodian of the
records
and has authority to certify records; (2) the copy is a true copy
of all the
records described in the subpoena; and (3) the records were
prepared by
the personnel or staff of the business, or persons acting under
their con-
trol, in the regular course of the business at or about the time of
the act,
condition or event recorded.
If the business has none of the records described in the
subpoena, or
only part thereof, the affiant shall so state in the affidavit and
shall send
only those records of which the affiant has custody. When more than
one
person has knowledge of the facts required to be stated in the
affidavit,
more than one affidavit may be made.
The copy of the records shall be separately enclosed in a sealed
en-
velope or wrapper on which the title and number of the action, name
and
address of the witness and the date of the subpoena are clearly
inscribed.
If return of the copy is desired, the words ``return requested''
must be
inscribed clearly on the sealed envelope or wrapper. The sealed
envelope
or wrapper shall be delivered to the clerk of the court.
The reasonable costs of copying the records may be demanded of
the
party causing the subpoena to be issued. If the costs are demanded,
the
records need not be produced until the costs of copying are
advanced.
(c) The subpoena shall be accompanied by an affidavit to be used
by
the records custodian. The subpoena and affidavit shall be in
substantially
the following form:
Ch. 173 1997 Session Laws of Kansas 1237
Subpoena of Business Records
State of Kansas
County of ____________
(1) You are commanded to produce the records listed below before
______________________________________________________________________________
(Officer at Deposition)......................(Judge of the District Court)
at ________________________________________________________________________
(Address)
in the City of ____________, County of ____________, on the ______ day of _________,
19___, at ______ o'clock ___ m., and to testify on behalf of the ____________ in an
action now pending between ____________, plaintiff, and ____________, defendant. Fail-
ure to comply with this subpoena may be deemed a contempt of the court.
(2) Records to be produced: __________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
(3) You may make written objection to the production of any or all of the records listed
above by serving such written objection upon ______________________________________________ at
(Attorney)
_________________________________________ (within 10 14 days after service of this subpoena) (on
(Attorney's Address)
or before ____________, 19___). If such objection is made, the records need not be
produced except upon order of the court.
(4) Instead of appearing at the time and place listed above, it is sufficient compliance
with this subpoena if a custodian of the business records delivers to the clerk of the court
by mail or otherwise a true and correct copy of all the records described above and mails a
copy of the affidavit below to
________________________________________ at _____________________________
(Requesting Party or Attorney) (Address of Party or Attorney)
within 10 14 days after receipt of this subpoena.
(5) The copy of the records shall be separately enclosed in a sealed envelope or wrapper
on which the title and number of the action, name and address of the witness and the date
of this subpoena are clearly inscribed. If return of the copy is desired, the words ``return
requested'' must be inscribed clearly on the sealed envelope or wrapper. The sealed enve-
lope or wrapper shall be delivered to the clerk of the court.
(6) The records described in this subpoena shall be accompanied by the affidavit of a
custodian of the records, a form for which is attached to this subpoena.
(7) If the business has none of the records described in this subpoena, or only part
thereof, the affidavit shall so state, and the custodian shall send only those records of which
the custodian has custody. When more than one person has knowledge of the facts required
to be stated in the affidavit, more than one affidavit may be made.
(8) The reasonable costs of copying the records may be demanded of the party causing
this subpoena to be issued. If the costs are demanded, the records need not be produced
until the costs of copying are advanced.
(9) The copy of the records will not be returned unless requested by the witness.
______________________________
Clerk of the District Court
[Seal of the District Court]
Dated ____________, 19___.
Affidavit of Custodian of Business Records
State of ____________
County of ____________
I, ____________, being first duly sworn, on oath, depose and say that:
1238 1997 Session Laws of Kansas Ch. 173
(1) I am a duly authorized custodian of the business records of ____________ and have
the authority to certify those records.
(2) The copy of the records attached to this affidavit is a true copy of the records
described in the subpoena.
(3) The records were prepared by the personnel or staff of the business, or persons
acting under their control, in the regular course of the business at or about the time of the
act, condition or event recorded.
______________________________
Signature of Custodian
Subscribed and sworn to before the undersigned on ____________.
______________________________
Notary Public
My Appointment Expires:
______________________________
Certificate of Mailing
I hereby certify that on ____________, 19___, I mailed a copy of the above affidavit to
___________________________________ at _______________________________________
(Requesting Party or Attorney) (Address of Party or Attorney)
by depositing it with the United States Postal Service for delivery with postage prepaid.
______________________________
Signature of Custodian
Subscribed and sworn to before the undersigned on ____________.
______________________________
Notary Public
My Appointment Expires:
______________________________
(d) Any party may require the personal attendance of a custodian
of
business records and the production of original business records by
caus-
ing a subpoena duces tecum to be issued which contains the
following
statements in lieu of paragraphs (4), (5), (6), (7) and (8) of the
subpoena
form described in subsection (c):
The personal attendance of a custodian of business records and
the
production of original records is required by this subpoena. The
proce-
dure for delivering copies of the records to the clerk of the court
shall
not be deemed sufficient compliance with this subpoena and should
be
disregarded. A custodian of the records must personally appear with
the
original records.
(e) Notice of the issuance of a subpoena pursuant to this
section where
the attendance of the custodian of the business records is not
required
shall be given to all parties to the action at least 10 days prior
to the
issuance thereof. A copy of the proposed subpoena shall also be
served
upon all parties along with such notice. In the event any party
objects to
the production of the documents sought by such subpoena prior to
its
issuance, the subpoena shall not be issued until further order of
the court
in which the action is pending.
(f) Upon receipt of business records the clerk of the
court shall so
notify the party who caused the subpoena for the business records
to be
Ch. 173 1997 Session Laws of Kansas 1239
issued. If receipt of the records makes the taking of a
deposition unnec-
essary, the party shall cancel the deposition and shall notify the
other
parties to the action in writing of the receipt of the records and
the can-
cellation of the deposition.
After the copy of the record is filed, a party desiring to
inspect or copy
it shall give reasonable notice to every other party to the action.
The notice
shall state the time and place of inspection. Records which are not
intro-
duced in evidence or required as part of the record shall be
destroyed or
returned to the custodian of the records who submitted them if
return
has been requested.
Sec. 26. K.S.A. 60-250 is hereby amended to read as follows:
60-250.
(a) When made; effect.
A party who moves for a directed verdict at the (a)
Judgment as a matter
close of the evidence offered by an opponent may offer evidence in
the
event that the motion is not granted without having reserved the
right so
to do and to the same extent as if the motion had not been made.
A
motion for a directed verdict which is not granted is not a waiver
of trial
by jury even though all parties to the action have moved for
directed
verdicts. A motion for a directed verdict shall state the specific
grounds
therefor. When a motion for a directed verdict is sustained the
judge shall
cause the appropriate judgment to be entered.
of law. (1) If during a trial by jury a party has been fully heard
on an
issue and there is no legally sufficient evidentiary basis for a
reasonable
jury to find for that party on that issue, the court may determine
the issue
against that party and may grant a motion for judgment as a matter
of
law against that party with respect to a claim or defense that
cannot under
the controlling law be maintained or defeated without a favorable
finding
on that issue.
(2) Motions for judgment as a matter of law may be made at
any time
before submission of the case to the jury. Such a motion shall
specify the
judgment sought and the law and the facts on which the moving party
is
entitled to the judgment.
(b) Reservation of decision on
motion. (3) Decisions on motions for
directed verdict judgment as a matter of
law by parties joined pursuant
to subsection (c) of K.S.A. 60-258a and amendments thereto, shall
be
reserved by the court until all evidence has been presented by any
party
alleging the movant's fault.
(c) Motion for judgment
notwithstanding the verdict. (b) Renewal of
motion for judgment after trial; alternative motion for new
trial. When-
ever a motion for a directed verdict judgment
as a matter of law made at
the close of all the evidence is denied or for any reason is not
granted,
the court is deemed to have submitted the action to the jury
subject to a
later determination of the legal questions raised by the motion.
A party
who has moved for a directed verdict may move to have the verdict
and
any judgment entered thereon set aside and to have judgment entered
in
1240 1997 Session Laws of Kansas Ch. 173
accordance with the party's motion for a directed
verdict; or, if a verdict Such a motion may be renewed by
service and filing not
was not returned, such party, within 10 days after the jury has
been dis-
charged, may move for judgment in accordance with the motion for
a
directed verdict.
later than 10 days after entry of judgment or the date the jury was
dis-
charged for failing to return a verdict. A motion for a new
trial under
K.S.A. 60-259 and amendments thereto may be joined with
this a renewal
of the motion for judgment as a matter of law, or a new
trial may be
prayed for requested in the alternative. If
a verdict was returned the court,
in disposing of the renewed motion, may allow the judgment to
stand or
may reopen the judgment and either order a new trial or direct the
entry
of judgment as if the requested verdict had been
directed a matter of
law. If no verdict was returned, the court, in
disposing of the renewed
motion, may direct the entry of judgment as if the
requested verdict had a matter of law or may order a new
trial.
been directed
Sec. 27. K.S.A. 60-252 is hereby amended to read as follows:
60-252.
(a) Effect. In all actions tried upon the facts without a
jury or with an
advisory jury or upon entering summary judgment or involuntary
dis-
missal, the judge shall find, and either orally or in writing
state, the con-
trolling facts and the judge's conclusions of law thereon.
Judgment shall
be entered pursuant to section K.S.A.
60-258 and amendments thereto.
In granting or refusing interlocutory injunctions, except in
divorce cases,
the judge shall set forth the findings and conclusions of
law. Requests for
findings are not necessary. Findings of fact shall not be set aside
unless
clearly erroneous, and due regard shall be given to the opportunity
of the
trial court to judge the credibility of the witnesses. The findings
of a
master, to the extent that the judge adopts them, shall be
considered as
the findings of the court. If an opinion or memorandum of decision
is
filed, it will be sufficient if the findings of fact and
reasons for the decisionconclusions of
law appear therein.
(b) Amendment. Upon motion of a party made not later than
ten (10)10 days after entry of judgment
the court may amend its findings or make
additional findings and may amend the judgment accordingly. The
motion
may be made with a motion for a new trial pursuant to
section K.S.A. 60-
259 and amendments thereto. When findings of fact are made
in actions
tried by the court without a jury, the question of the sufficiency
of the
evidence to support the findings may thereafter be raised whether
or not
the party raising the question has made in the district court an
objection
to such findings or has made a motion to amend them or a motion
for
judgment.
(c) Judgment on partial findings. If during a
trial without a jury a
party has been fully heard on an issue and the court finds against
the
party on that issue, the court may enter judgment as a matter of
law
against that party with respect to a claim or defense that cannot
under
Ch. 173 1997 Session Laws of Kansas 1241
the controlling law be maintained or defeated without a
favorable finding
on that issue, or the court may decline to render any judgment
until the
close of all the evidence. Such a judgment shall be supported by
findings
of fact and conclusions of law as required by subsection
(a).
Sec. 28. K.S.A. 60-254 is hereby amended to read as follows:
60-254.
(a) Definition. A judgment is the final determination of the
rights of the
parties in an action.
(b) Judgment upon multiple claims. When more than one
claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-
claim or third-party claim or, when multiple parties are involved,
the court
may direct the entry of a final judgment as to one or more but
fewer than
all of the claims or parties only upon an express determination
that there
is no just reason for delay and upon an express direction for the
entry of
judgment. In the absence of such determination and direction, any
order
or other form of decision, however designated, which adjudicates
fewer
than all the claims or the rights and liabilities of fewer than all
the parties
shall not terminate the action as to any of the claims or parties,
and the
order or other form of decision is subject to revision at any time
before
the entry of judgment adjudicating all the claims and the rights
and lia-
bilities of all the parties.
(c) Demand for judgment. A judgment by default shall not
be differ-
ent in kind from or exceed in amount that prayed for in the demand
for
judgment. Before any default judgment is taken in any action in
which a
pleading contains a demand for money damages in excess of
$50,000$75,000 as provided in
subsection (a) of K.S.A. 60-208 and amendments
thereto, the party seeking relief must notify the party against
whom relief
is sought of the amount of money for which judgment will be
taken.
Notice shall be given by certified mail, return receipt requested,
or as
the court may order, at least 10 days prior to the date judgment is
sought.
Proof of service shall be filed and submitted to the court. Except
as to a
party against whom a judgment is entered by default, every final
judgment
shall grant the relief to which the party in whose favor it is
rendered is
entitled, even if the party has not demanded such relief in such
party's
pleadings.
Sec. 29. K.S.A. 60-256 is hereby amended to read as follows:
60-256.
(a) For claimant. A party seeking to recover upon a claim,
counterclaim
or cross-claim or to obtain a declaratory judgment may, at any time
after
the expiration of 20 days from the commencement of the action or
after
service of a motion for summary judgment by the adverse party,
move
with or without supporting affidavits for a summary judgment in
the
party's favor as to all or any part thereof.
(b) For defending party. A party against whom a claim,
counterclaim
or cross-claim is asserted or a declaratory judgment is sought may,
at any
1242 1997 Session Laws of Kansas Ch. 173
time, move with or without supporting affidavits for a summary
judgment
in the party's favor as to all or any part thereof.
(c) Motion and proceeding thereon. The motion shall be
served at
least 10 days before the time fixed for the hearing. The adverse
party
prior to the day of hearing may serve opposing affidavits. The
judgment
sought shall be rendered forthwith if the pleadings, depositions,
answers
to interrogatories and admissions on file, together with the
affidavits, if
any, show that there is no genuine issue as to any material fact
and that
the moving party is entitled to a judgment as a matter of law. A
summary
judgment, interlocutory in character, may be rendered on the issue
of
liability alone although there is a genuine issue as to the amount
of dam-
ages.
(d) Case not fully adjudicated on motion. If on motion
under this
section judgment is not rendered upon the whole case or for all the
relief
asked and a trial is necessary, the court at the hearing of the
motion, by
examining the pleadings and the evidence before it and by
interrogating
counsel, shall if practicable ascertain what material facts exist
without
substantial controversy and what material facts are actually and in
good
faith controverted. It shall thereupon make an order specifying the
facts
that appear without substantial controversy, including the extent
to which
the amount of damages or other relief is not in controversy, and
directing
such further proceedings in the actions as are just. Upon the trial
of the
action the facts so specified shall be deemed established, and the
trial
shall be conducted accordingly.
(e) Form of affidavits; further testimony; defense
required. Support-
ing and opposing affidavits shall be made on personal knowledge,
shall
set forth such facts as would be admissible in evidence and shall
show
affirmatively that the affiant is competent to testify to the
matters stated
therein. Sworn or certified copies of all papers or parts thereof
referred
to in an affidavit shall be attached thereto or served therewith.
The court
may permit affidavits to be supplemented or opposed by
depositions,
answers to interrogatories or by further
affidavits. When a motion for
summary judgment is made and supported as provided in this section,
an
adverse party may not rest upon the mere allegations or denials of
the
adverse party's pleading, but the adverse party's response, by
affidavits
or as otherwise provided in this section, must set forth specific
facts show-
ing that there is a genuine issue for trial. If the adverse party
does not so
respond, summary judgment, if appropriate, shall be entered against
the
adverse party.
(f) When affidavits are unavailable. Should it appear
from the affi-
davits of a party opposing the motion that the party cannot for
reasons
stated present by affidavit facts essential to justify such party's
opposition,
the court may refuse the application for judgment or may order a
contin-
uance to permit affidavits to be obtained or depositions to be
taken or
discovery to be had or may make such other order as is
just.
Ch. 173 1997 Session Laws of Kansas 1243
(g) Affidavits made in bad faith. Should it appear to the
satisfaction
of the court at any time that any of the affidavits presented
pursuant to
this section are presented in bad faith or solely for the purpose
of delay,
the court shall forthwith order the party employing them to pay to
the
other party the amount of the reasonable expenses which the filing
of the
affidavits caused the party to incur, including reasonable attorney
fees,
and any offending party or attorney may be adjudged guilty of
contempt.
Sec. 30. K.S.A. 60-262 is hereby amended to read as follows:
60-262.
(a) Automatic stay; exceptions -- injunctions and
receiverships. Except
as stated herein, no execution shall issue upon a judgment nor
shall pro-
ceedings be taken for its enforcement until the expiration of
ten (10) 10
days after its entry. Unless otherwise ordered by the court, an
interloc-
utory or final judgment in an action for an injunction or in a
receivership
action, shall not be stayed during the period after its entry and
until an
appeal is taken or during the pendency of an appeal. The provisions
of
subsection (c) of this section govern the
suspending, modifying, restoring,
or granting of an injunction during the pendency of an
appeal.
(b) Stay on motion for new trial or for judgment. In its
discretion and
on such conditions for the security of the adverse party as are
proper, the
court may stay the execution of or any proceedings to enforce a
judgment
pending the disposition of a motion for a new trial or to alter or
amend
a judgment made pursuant to K.S.A. 60-259, and amendments
thereto,
or of a motion for relief from a judgment or order made pursuant
to
K.S.A. 60-260, and amendments thereto, or of a motion for
judgment in as a
matter of law made
accordance with a motion for a directed verdict
pursuant to K.S.A. 60-250, and amendments thereto, or of a
motion for
amendment to the findings or for additional findings made pursuant
to
subsection (b) of K.S.A. 60-252(b)
60-252.
(c) Injunction pending appeal. When an appeal is taken
from an in-
terlocutory or final judgment granting, dissolving, or denying an
injunc-
tion, the judge in said such judge's
discretion may suspend, modify,
restore, or grant an injunction during the pendency of the appeal
upon
such terms as to bond or otherwise as it considers proper for the
security
of the rights of the adverse party.
(d) Stay upon appeal. When an appeal is taken the
appellant by giving
a supersedeas bond may obtain a stay subject to the exceptions
contained
in subsection (a) of this section. The bond may be
given at or after the
time of filing the notice of appeal. The stay is effective when the
super-
sedeas bond is approved by the court.
(e) Stay in favor of the state or agency thereof. When an
appeal is
taken by the state or an officer or agency thereof or by direction
of any
department of the state and the operation or enforcement of the
judg-
ment is stayed, no bond, obligation, or other security shall be
required
from the appellant.
1244 1997 Session Laws of Kansas Ch. 173
(f) Power of appellate court not limited. The provisions
in this section
do not limit any power of the appellate court or of a judge or
justice
thereof to stay proceedings during the pendency of an appeal or to
sus-
pend, modify, restore, or grant an injunction during the pendency
of an
appeal or to make any order appropriate to preserve the status
quo or the
effectiveness of the judgment subsequently to be entered.
(g) Stay of judgment upon multiple claims. When a court
has ordered
a final judgment on some but not all of the claims presented in the
action
under the conditions stated in subsection (b) of K.S.A.
60-254 (b) 60-254,
and amendments thereto, the court may stay enforcement of that
judg-
ment until the entering of a subsequent judgment or judgments and
may
prescribe such conditions as are necessary to secure the benefit
thereof
to the party in whose favor the judgment is entered.
Sec. 31. K.S.A. 1996 Supp. 60-1608 is hereby amended to read
as
follows: 60-1608. (a) Time. An action for divorce shall not
be heard until
60 days after the filing of the petition unless the judge enters an
order
declaring the existence of an emergency, stating the precise nature
of the
emergency, the substance of the evidence material to the emergency
and
the names of the witnesses who gave the evidence. A request for an
order
declaring the existence of an emergency may be contained in a
pleading
or made by motion. Unless otherwise agreed by the parties, a
request for
the declaration of an emergency shall not be heard prior to the
expiration
of the time permitted for the filing of an answer. Unless waived,
notice
of the hearing requesting the declaration of an emergency shall be
given
to all parties not in default not less than seven days prior to the
date of
the hearing. Upon a finding that an emergency exists, the divorce
and all
issues pertaining thereto may be heard immediately.
(b) Pretrial conference
conferences. Upon the request of either
party, The
court shall conduct
the court shall set a pretrial conference to explore the
possibilities of
settlement of the case and to expedite the trial.
a pretrial conference or conferences in accordance with K.S.A.
60-216,
and amendments thereto, upon request of either party or on the
court's
own motion. Any pretrial conference shall be set on a date
other than the
date of trial and the parties shall be present or available within
the court-
house.
(c) Marriage counseling. After the filing of the answer
or other re-
sponsive pleading by the respondent, the court, on its own motion
or
upon motion of either of the parties, may require both parties to
the
action to seek marriage counseling if marriage counseling services
are
available within the judicial district of venue of the action.
Neither party
shall be required to submit to marriage counseling provided by any
relig-
ious organization of any particular denomination.
(d) Cost of counseling. The cost of any counseling
authorized by this
section may be assessed as costs in the case.
Ch. 173 1997 Session Laws of Kansas 1245
Sec. 32. K.S.A. 60-2103 is hereby amended to read as follows:
60-
2103. (a) When and how taken. When an appeal is permitted by
law from
a district court to an appellate court, the time within which an
appeal
may be taken shall be 30 days from the entry of the judgment, as
provided
by K.S.A. 60-258, and amendments thereto, except that upon a
showing
of excusable neglect based on a failure of a party to learn of the
entry of
judgment the district court in any action may extend the time for
appeal
not exceeding 30 days from the expiration of the original time
herein
prescribed. The running of the time for appeal is terminated by a
timely
motion made pursuant to any of the rules hereinafter enumerated,
and
the full time for appeal fixed in this subsection commences to run
and is
to be computed from the entry of any of the following orders made
upon
a timely motion under such rules: Granting or denying a motion for
judg-
ment under subsection (c) (b) of K.S.A.
60-250, and amendments thereto;
or granting or denying a motion under subsection (b) of K.S.A.
60-252,
and amendments thereto, to amend or make additional findings of
fact,
whether or not an alteration of the judgment would be required if
the
motion is granted; or granting or denying a motion under K.S.A.
60-259,
and amendments thereto, to alter or amend the judgment; or denying
a
motion for new trial under K.S.A. 60-259, and amendments
thereto.
A party may appeal from a judgment by filing with the clerk of
the
district court a notice of appeal. Failure of the appellant to take
any of
the further steps to secure the review of the judgment appealed
from
does not affect the validity of the appeal, but is ground only for
such
remedies as are specified in this chapter, or when no remedy is
specified,
for such action as the appellate court having jurisdiction over the
appeal
deems appropriate, which may include dismissal of the appeal. If
the
record on appeal has not been filed with the appellate court, the
parties,
with the approval of the district court, may dismiss the appeal by
stipu-
lation filed in the district court, or that court may dismiss the
appeal upon
motion and notice by the appellant.
(b) Notice of appeal. The notice of appeal shall specify
the parties
taking the appeal; shall designate the judgment or part thereof
appealed
from, and shall name the appellate court to which the appeal is
taken.
The appealing party shall cause notice of the appeal to be served
upon
all other parties to the judgment as provided in K.S.A. 60-205,
and
amendments thereto, but such party's failure so to do does not
affect the
validity of the appeal.
(c) Security for costs. Security for the costs on appeal
shall be given
in such sum and manner as shall be prescribed by a general rule of
the
supreme court unless the appellate court shall make a different
order
applicable to a particular case.
(d) Supersedeas bond. Whenever an appellant entitled
thereto desires
a stay on appeal, such appellant may present to the district court
for its
approval a supersedeas bond which shall have such surety or
sureties as
1246 1997 Session Laws of Kansas Ch. 173
the court requires. The bond shall be conditioned for the
satisfaction of
the judgment in full together with costs, interest, and damages for
delay,
if for any reason the appeal is dismissed, or if the judgment is
affirmed,
and to satisfy in full such modification of the judgment such
costs, inter-
est, and damages as the appellate court may adjudge and award.
When
the judgment is for the recovery of money not otherwise secured,
the
amount of the bond shall be fixed at such sum as will cover the
whole
amount of the judgment remaining unsatisfied, costs on the appeal,
in-
terest, and damages for delay, unless the court after notice and
hearing
and for good cause shown fixes a different amount or orders
security other
than the bond. When the judgment determines the disposition of
the
property in controversy as in real actions, replevin, and actions
to fore-
close mortgages or when such property is in the custody of the
sheriff or
when the proceeds of such property or a bond for its value is in
the
custody or control of the court, the amount of the supersedeas bond
shall
be fixed after notice and hearing at such sum only as will secure
the
amount recovered for the use and detention of the property, the
costs of
the action, costs on appeal, interest, and damages for delay. When
an
order is made discharging, vacating, or modifying a provisional
remedy,
or modifying or dissolving an injunction, a party aggrieved thereby
shall
be entitled, upon application to the judge, to have the operation
of such
order suspended for a period of not to exceed 10 days on condition
that,
within such period of 10 days such party shall file a notice of
appeal and
obtain the approval of such supersedeas bond as is required under
this
section.
(e) Failure to file or insufficiency of bond. If a
supersedeas bond is
not filed within the time specified, or if the bond filed is found
insuffi-
cient, and if the action is not yet docketed with the appellate
court, a
bond may be filed at such time before the action is so docketed as
may
be fixed by the district court. After the action is so docketed,
application
for leave to file a bond may be made only in the appellate
court.
(f) Judgment against surety. By entering into a
supersedeas bond
given pursuant to subsections (c) and (d) of this
section, the surety sub-
mits such surety's self to the jurisdiction of the court and
irrevocably
appoints the clerk of the court as such surety's agent upon whom
any
papers affecting such surety's liability on the bond may be served.
Such
surety's liability may be enforced on motion without the necessity
of an
independent action. The motion and such notice of the motion as
the
judge prescribes may be served on the clerk of the court who shall
forth-
with mail copies to the surety if such surety's address is
known.
(g) Docketing record on appeal. The record on appeal
shall be filed
and docketed with the appellate court at such time as the supreme
court
may prescribe by rule.
(h) Cross-appeal. When notice of appeal has been served
in a case
and the appellee desires to have a review of rulings and decisions
of which
Ch. 173 1997 Session Laws of Kansas 1247
such appellee complains, the appellee shall, within 20 days
after the notice
of appeal has been served upon such appellee and filed with the
clerk of
the trial court, give notice of such appellee's
cross-appeal.
(i) Intermediate rulings. When an appeal or cross-appeal
has been
timely perfected, the fact that some ruling of which the appealing
or cross-
appealing party complains was made more than 30 days before filing
of
the notice of appeal shall not prevent a review of the
ruling.
Sec. 33. K.S.A. 60-3703 is hereby amended to read as follows:
60-
3703. No tort claim or reference to a tort claim for punitive
damages shall
be included in a petition or other pleading unless the court enters
an
order allowing an amended pleading that includes a claim for
punitive
damages to be filed. The court may allow the filing of an amended
plead-
ing claiming punitive damages on a motion by the party seeking
the
amended pleading and on the basis of the supporting and opposing
affi-
davits presented that the plaintiff has established that there is a
proba-
bility that the plaintiff will prevail on the claim pursuant to
K.S.A. 60-
209, and amendments thereto. The court shall not grant a motion
allowing
the filing of an amended pleading that includes a claim for
punitive dam-
ages if the motion for such an order is not filed on or before the
date of
the final pretrial conference held in the matter.
Sec. 34. K.S.A. 61-1710 is hereby amended to read as follows:
61-
1710. Any party to an action pursuant to this chapter may take the
testi-
mony of any person, including a party, either within or without the
state,
by deposition upon oral examination or written questions but only
for use
as evidence in the action. Unless the court orders otherwise, the
parties
may by written stipulation provide that depositions may be taken
before
any person, at any time or place, upon any notice, and in any
manner and
when so taken may be used like other depositions. The taking of
such
depositions shall be governed by the provisions of K.S.A. 60-228,
subsec-
tions (b) through (h), inclusive, of K.S.A. 60-230, K.S.A. 60-231
and sub-
section (d) (e) of K.S.A. 60-232, and
amendments thereto, except that any
party desiring to take a deposition shall first file with the
court, and serve
on all other parties to the action, a motion that the taking of
such depo-
sition be allowed due to the existence of at least one
(1) of the conditions
prescribed in K.S.A. 61-1711, and amendments thereto, for
the use of
depositions as evidence. Within five (5) days
after any such motion has
been made, any other party to the action may file an objection to
such
motion, and in such event, the court shall hold a hearing within
five (5)
days thereof to determine the issue. No deposition shall be taken
unless
and until the court shall have granted the motion requesting
permission
therefor.
Sec. 35. K.S.A. 61-1725 is hereby amended to read as follows:
61-
1725. The following provisions of article 2 of chapter 60 of the
Kansas
Statutes Annotated are hereby adopted by reference and made a part
of
1248 1997 Session Laws of Kansas Ch. 173
this act as if fully set forth herein, insofar as such
provisions are not
inconsistent or in conflict with the provisions of this
act:
(a) K.S.A. 60-211 and amendments thereto, relating to signing
of
pleadings, motions and other papers and liability for frivolous
filings;
(b) K.S.A. 60-215 and amendments thereto, relating
to amended and
supplemental pleadings, except that the time for filing amended
pleadings
and for responding thereto shall be ten (10)
10 instead of twenty (20) 20
days;
(b) (c) K.S.A. 60-217 and amendments
thereto, relating to capacity of
parties;
(c) (d) K.S.A. 60-218 and amendments
thereto, providing for joinder
of claims and remedies, K.S.A. 60-219 and 60-220 and
amendments
thereto, providing for joinder of parties, and K.S.A. 60-221
and amend-
ments thereto, relating to misjoinder of parties and
claims;
(d) (e) K.S.A. 60-224 and amendments
thereto, relating to interven-
tion, and K.S.A. 60-225 and amendments thereto, providing
for substi-
tution of parties;
(e) (f) K.S.A. 60-234 and amendments
thereto, relating to production
of documents and things for inspection;
(f) (g) K.S.A. 60-241 and amendments
thereto, providing for dismissal
of actions;
(g) (h) K.S.A. 60-244 and amendments
thereto, providing for proof of
records;
(h) (i) K.S.A. 60-256 and amendments
thereto, relating to summary
judgment;
(i) (j) K.S.A. 60-259 and 60-260 and
amendments thereto, concerning
new trial and relief from judgment or order, respectively;
(j) (k) K.S.A. 60-261 and 60-263 and
amendments thereto, relating
respectively to harmless error and disability of a judge;
and
(k) (l) K.S.A. 60-264 and amendments
thereto, relating to process in
behalf of and against persons not parties.
Sec. 36. K.S.A. 75-3079 is hereby amended to read as follows:
75-
3079. (a) If costs are assessed against the state or any agency of
the state
pursuant to K.S.A. 60-2007 60-211, and
amendments thereto, the head
of the state agency which conducted the litigation shall report the
assess-
ment, its amount and the reason for it to the speaker and the
minority
leader of the Kansas house of representatives and to the president
and
the minority leader of the Kansas senate within 30 days after entry
of the
order assessing the costs against the state or state
agency.
(b) Payment of costs assessed against the state or a state
agency pur-
suant to K.S.A. 60-2007 60-211, and
amendments thereto shall be made
from the operating budget of the state agency which conducted the
liti-
gation.
Sec. 37. K.S.A. 61-1729 is hereby amended to read as follows:
61-
Ch. 173 1997 Session Laws of Kansas 1249
1729. An action filed under chapter 61 of the Kansas Statutes
Annotated,
except an action filed pursuant to the small claims procedure act,
may
upon motion of a party and order of the court for good cause shown,
be
thereafter governed by the provisions of chapter 60 of the Kansas
Statutes
Annotated. The party obtaining an order under this section shall
pay any
additional docket fee required had the action been filed under
chapter
60 of the Kansas Statutes Annotated. Upon such order of the
court and
payment of any additional docket under this section, the clerk of
the dis-
trict court shall renumber the case as a case filed under chapter
60 of the
Kansas Statutes Annotated in the same manner as required by K.S.A.
60-
2418 and amendments thereto.
Sec. 38. K.S.A. 60-102, 60-205, 60-206, 60-208, 60-209, 60-211,
60-
214, 60-215, 60-216, 60-223, 60-226, 60-228, 60-230, 60-231,
60-232, 60-
233, 60-234, 60-235, 60-236, 60-237, 60-238, 60-241, 60-243,
60-245, 60-
245a, 60-250, 60-252, 60-254, 60-256, 60-262, 60-2007, 60-2103,
60-3703,
61-1710, 61-1725, 61-1729 and 75-3079 and K.S.A. Supp. 60-1608
are
hereby repealed.
Sec. 39. This act shall take effect and be in force from and
after its
publication in the statute book.
Approved May 15, 1997.