(b) This article governs the procedure in the district courts of Kansas, other than actions commenced pursuant to the code of civil procedure for limited actions and governs the procedure in all original proceedings in the supreme court in all suits of a civil nature whether cognizable as cases at law or in equity, except as provided in K.S.A. 60-265, and amendments thereto.
History: L. 1963, ch. 303, 60-201; L. 1976, ch. 251, § 1; L. 2000, ch. 161, § 109; L. 2005, ch. 101, § 7; July 1.
History: L. 1963, ch. 303, 60-202; Jan. 1, 1964.
(b) If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.
(c) The filing of an entry of appearance shall have the same effect as service. Written contact with the court by a defendant or an attorney for a defendant evoking the protection for such defendant under the servicemembers civil relief act shall not be deemed an entry of appearance by the court.
(d) As used in this section, filing a petition with the clerk of the court shall include receipt by the clerk of a petition by telefacsimile communication complying with supreme court rules.
History: L. 1963, ch. 303, § 60-203; L. 1983, ch. 193, § 1; L. 1990, ch. 202, § 1; L. 1991, ch. 169, § 1; L. 1992, ch. 128, § 12; L. 2005, ch. 45, § 4; July 1.
History: L. 1963, ch. 303, 60-204; Jan. 1, 1964.
(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 petition, unless the court otherwise orders because of numerous defendants; every paper relating to disclosure of expert testimony or discovery required 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 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 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 suitable age and discretion then residing therein. Service by mail is complete 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 initiative, 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 under K.S.A. 60-227 and amendments thereto, disclosures of expert testimony under K.S.A. 60-226 and amendments thereto and discovery requests 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. In accordance with K.S.A. 60-271 and amendments thereto and supreme court rules, pleadings 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.
History: L. 1963, ch. 303, 60-205; amended by Supreme Court order dated July 20, 1972; amended by Supreme Court order dated July 28, 1976; L. 1987, ch. 218, § 1; L. 1992, ch. 128, § 13; L. 1997, ch. 173, § 2; L. 2002, ch. 198, § 18; July 1.
(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 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 designated as a holiday by the congress of the United States, or by the legislature of this state, or observed as a holiday by order of the supreme court. When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.
(b) Enlargement. When by this chapter or by a notice given thereunder 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 motion 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 (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) 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.
(d) 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.
History: L. 1963, ch. 303, 60-206; L. 1988, ch. 207, § 1; L. 1988, ch. 206, § 1; L. 1988, ch. 208, § 1; L. 1997, ch. 173, § 3; L. 2005, ch. 183, § 1; L. 2007, ch. 190, § 16; July 1.
(b) Motions and other papers. (1) An application to the court or judge for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The sections of this article applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by this article.
(c) Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
(d) Lost pleadings. If an original pleading is lost, destroyed, or withheld by any person, the court or judge may allow a copy thereof to be substituted.
History: L. 1963, ch. 303, 60-207; L. 1976, ch. 251, § 2; Jan. 10, 1977.
(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, duress, 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 avoidance 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 responsive 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 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 alternative 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.
History: L. 1963, ch. 303, 60-208; L. 1976, ch. 252, § 1; L. 1990, ch. 203, § 1; L. 1997, ch. 173, § 4; July 1.
(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 performance or occurrence shall be made specifically and with particularity.
(d) Official document or act. In pleading an official document or official 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 matter 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 considered 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 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 $75,000.
(h) Pleading written instrument. Whenever a claim, defense or counterclaim 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 pleading, 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 allegation 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.
History: L. 1963, ch. 303, 60-209; L. 1976, ch. 252, § 2; L. 1988, ch. 209, § 5; L. 1997, ch. 173, § 5; July 1.
(b) Paragraphs; separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense.
(c) Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
(d) Change of name. If after an action has been commenced the name of any party thereto changes, either before or after judgment, by reason of marriage, divorce, adoption, a change of name proceeding, amendment of articles of incorporation, the assumption of an alias or otherwise, or if an action is mistakenly commenced against a party by a former name no longer in use by the party, any party in interest may cause such fact to be noted of record in the action by the filing therein of a certified copy of a marriage record, decree of divorce, amended articles of incorporation, order of adoption or change of name, or an affidavit by an informed person setting forth any such fact. Thereafter, the use of the name as changed shall also be used in the alternative in all subsequent proceedings in such action.
History: L. 1963, ch. 303, 60-210; amended by Supreme Court Rule No. 125; effective Jan. 1, 1969.
(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 an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses and other legal contentions therein are warranted 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 support 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 information 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 discovery 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 subdivisions 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 custody of the secretary of corrections, the secretary is hereby authorized to disburse any money in the inmate's account to pay such sanctions.
History: L. 1963, ch. 303, 60-211; amended by Supreme Court order dated July 28, 1976; L. 1982, ch. 241, § 2; L. 1986, ch. 215, § 1; L. 1997, ch. 173, § 6; July 1.
(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under K.S.A. 60-219 and amendments thereto. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256 and amendments thereto.
(c) Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.
(d) Preliminary hearings. The defenses specifically enumerated in subsection (1) through (7) of subsection (b), whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) shall be heard and determined before trial on application of any party, unless the judge orders that the hearing and determination thereof be deferred until the trial.
(e) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, such party may move for a more definite statement before interposing such party's responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within 10 days after notice of the order or within such time as the court may fix, the judge may strike the pleading to which the motion was directed or make such order as the judge deems just.
(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this article, upon motion made by a party within 20 days after the service of the pleading upon such party or upon the court's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of defenses in motion. A party who makes a motion under this section may join with it any other motions herein provided for and then available to him. If a party makes a motion under this section but omits therefrom any defense or objection then available to such party which this section permits to be raised by motion, such party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subsection (h)(2) on any of the grounds there stated.
(h) Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subsection (g) or (B) if it is neither made by motion under this section nor included in a responsive pleading or an amendment thereof permitted by subsection (a) of K.S.A. 60-215 and amendments thereto to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party under K.S.A. 60-219 and amendments thereto, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of K.S.A. 60-207 and amendments thereto, or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
(i) Answer for minor or incapacitated person. The guardian or conservator of a minor or incapacitated person, or attorney for a person in prison shall deny in the answer all the material allegations in the petition prejudicial to such defendant.
History: L. 1963, ch. 303, 60-212; L. 1965, ch. 354, § 1; amended by Supreme Court order dated July 17, 1969; L. 1990, ch. 202, § 24; Jan. 1, 1991.
(b) Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(d) Effect of death or limitations. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.
(e) Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
(f) Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.
(g) Compulsory cross-claim against co-party. In an action involving a claim governed by K.S.A. 60-258a and amendments thereto, a party shall state as a cross-claim any claim that party has against any co-party arising out of the transaction or occurrence that is the subject matter of the claim governed by K.S.A. 60-258a and amendments thereto.
(h) Permissive cross-claim against co-party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
(i) Joinder of additional parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of K.S.A. 60-219 and 60-220, and amendments thereto.
(j) Separate trials; separate judgments. If the court orders separate trials as provided in K.S.A. 60-242 and amendments thereto judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of K.S.A. 60-254 and amendments thereto when the judge has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
(k) Appealed and removed actions. When an action is filed in the district court pursuant to the code of civil procedure for limited actions and such action is transferred as provided in K.S.A. 61-2910, and amendments thereto or such action is heard by a district magistrate judge and is appealed and a trial de novo will be held before a district judge, any counterclaim made compulsory by subsection (a) shall be stated as an amendment to the pleading within 20 days after such filing or such other time as the court shall allow. Other counterclaims and cross-claims shall be permitted as in an original action in the district court pursuant to this chapter.
History: L. 1963, ch. 303, 60-213; amended by Supreme Court order dated July 17, 1969; L. 1976, ch. 251, § 3; L. 1986, ch. 115, § 90; L. 1986, ch. 215, § 2; L. 1986, ch. 215, § 3; L. 2000, ch. 161, § 110; Jan. 1, 2001.
(b) When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, 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), on the claim on which a third-party plaintiff has been sued, execution by the third-party plaintiff on a judgment against such third-party defendant shall be permitted only to the extent that the third-party plaintiff has paid any judgment obtained against the third-party plaintiff by the obligee.
History: L. 1963, ch. 303, 60-214; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 7; July 1.
(b) Amendments to conform to the evidence. When issues not raised 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 the party in maintaining 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. 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; or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by law for commencing the action against 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: (A) Has received such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits; and (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 the party.
(d) Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences 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 defense. If the judge deems it advisable that the adverse party plead to the supplemental pleading, the judge shall so order, specifying the time therefor.
History: L. 1963, ch. 303, 60-215; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 8; July 1.
(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 unrepresented 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 discovery, 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) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(6) any issues relating to claims of privilege or of protection as trial-preparation material, including, if the parties agree on a procedure to assert such claims after production, whether to ask the court to include their agreement in an order;
(7) requiring completion of discovery within a definite number of days after the conference has been conducted;
(8) setting deadlines for filing motions, joining parties and amendments to the pleadings;
(9) setting the date or dates for conferences before trial, a final pretrial conference, and trial; and
(10) such other matters as are necessary for the proper management of the action.
If a case management conference is held, except as provided in subsection (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 conference 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 appropriate action, with respect to:
(1) The simplification of the issues;
(2) 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 conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably 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 established 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.
(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 conference 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 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 circumstances make an award of expenses unjust.
History: L. 1963, ch. 303, 60-216; L. 1986, ch. 215, § 4; L. 1997, ch. 173, § 9; L. 2008, ch. 21, § 1; July 1.
(b) Claim accruing under law of another state. Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the same arose. When the law of the state or territory where a cause of action for death arose authorizes said action to be prosecuted by an administrator or executor, then said action may also be maintained in any of the courts of this state by an administrator or executor appointed under the laws of the state of Kansas.
(c) Minors or incapacitated persons. Whenever a minor or incapacitated person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the minor or incapacitated person. If a minor or incapacitated person does not have a duly appointed representative the minor or incapacitated person may sue by the minor or incapacitated person's next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incapacitated person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incapacitated person.
History: L. 1963, ch. 303, 60-217; L. 1965, ch. 354, § 2; L. 1986, ch. 215, § 5; July 1.
(b) Joinder of remedies. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, but not exclusively, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money; a plaintiff may state in his original claim against the defendant and also in either the original or an amended petition or in a reply, a claim for having any release, composition, settlement, or discharge of the original claim set aside as fraudulent or otherwise wrongfully procured.
History: L. 1963, ch. 303, 60-218; amended by Supreme Court order dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
(b) Determination by court whenever joinder not feasible. If a contingently necessary person cannot be made a party, the court shall determine whether in equity and good conscience the action ought to proceed among the parties before it or ought to be dismissed. The factors to be considered by the court include: First, to what extent a judgment rendered in the absence of the contingently necessary person might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the absence of the contingently necessary person would be adequate; fourth, whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
(c) Pleading reasons for nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of contingently necessary persons who are not joined, and the reasons why they are not joined.
(d) Exception of class actions. This section is subject to the provisions of K.S.A. 60-223.
History: L. 1963, ch. 303, 60-219; amended by Supreme Court order dated July 17, 1969) effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
(b) Separate trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.
History: L. 1963, ch. 303, 60-220; amended by Supreme Court order dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
History: L. 1963, ch. 303, 60-221; Jan. 1, 1964.
(b) Disclaimer by defendant. In any action upon contract or for the recovery of personal property, the defendant may answer that some third party without collusion with him or her has or makes a claim to the subject of the action, and that he or she is ready to pay or dispose of the same as the court may direct, the court or judge may make an order for the safekeeping, or for the payment or deposit in court, or delivery of the subject of the action to such persons as it may direct, and may make an order requiring such third party to appear in a reasonable time and maintain or relinquish his or her claim against the defendant. If such third party, being served with a copy of the order by the sheriff, or such other person as the court or judge may direct, fail to appear, the court may declare him or her barred of all claim in respect to the subject of the action against the defendant therein. If such third party appear, he or she shall be allowed to make himself or herself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his or her compliance with the order of the court or judge for the payment, deposit or delivery therof.
(c) Application. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in K.S.A. 60-220.
History: L. 1963, ch. 303, 60-222; Jan. 1, 1964.
(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 members of the class would create a risk of (A) inconsistent or varying adjudications 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 injunctive 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 individual 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 individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
(c) Determination by order whether class action to be maintained; notice; judgment; actions conducted partially as class actions. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
(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 favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion, if the member desires, 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 subsection (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, 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 make appropriate orders: (1) Determining 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 representation 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, and that the action proceed accordingly; (5) dealing with similar procedural matters. 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. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
(f) Appeals. The court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this section if application is made to the court within 10 days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
History: L. 1963, ch. 303, 60-223; amended by Supreme Court order dated July 17, 1969; L. 1980, ch. 171, § 1; L. 1997, ch. 173, § 10; L. 2004, ch. 21, § 1; July 1.
History: Order of Supreme Court dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
History: Order of Supreme Court dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) When a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c) Motion to intervene and practice in intervention. (1) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in K.S.A. 60-205. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene. (2) When the validity of a statute, regulation or constitutional provision of this state, or an ordinance or regulation of a governmental subdivision thereof affecting the public interest, is drawn in question in any action to which the state or governmental subdivision or an officer, agency or employee thereof is not a party, the court may in its discretion notify the chief legal officer of the state or subdivision thereof affected, and permit intervention on proper application.
History: L. 1963, ch. 303, 60-224; amended by Supreme Court order dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
(2) Where right survives only to or against surviving party. In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b) Incapacity. If a party becomes an incapacitated person, the court, upon motion served as provided in subsection (a) of this section, may allow the action to be continued by or against his or her representative as provided in K.S.A. 60-217 (c).
(c) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subsection (a) of this section.
(d) Public officers -- death or separation from office. When any public officer is a party to an action as such and during its pendency dies, resigns or otherwise ceases to hold office, the action may be continued and maintained by or against his or her successor upon motion for substitution. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object. If no successor is otherwise appointed or elected, the court in which the action is pending may appoint a successor for the prosecution or defense of the action.
(e) Continued representation by attorney. An attorney representing a party who dies or becomes an incapacitated person, or a public officer who dies or is separated from his or her office, in any action, may, in order to protect rights and avoid time limitations, continue such representation in the name of the original party until there has been a substitution therefor.
History: L. 1963, ch. 303, 60-225; L. 1965, ch. 354, § 3; Jan. 1, 1966.
(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 privileged, 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)(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) Limitations. (A) 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: (i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) 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).
(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of subsection (b)(2)(A). The court may specify conditions for the discovery.
(3) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person 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 concerning 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.
(4) Trial preparation: Materials. Subject to the provisions of subsection (b)(5), a party may obtain discovery of documents and tangible 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 concerning 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.
(5) Trial preparation: Experts. (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, through interrogatories or by deposition, may discover 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 this subsection; and (ii) with respect to discovery obtained under subsection (b)(5)(B) the court shall require, 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 disclosure, 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), 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.
(7) Claims of Privilege or Protection of Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
(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 annoyance, embarrassment, oppression, or undue burden or expense including 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 conditions, 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 information 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, 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 is under a duty to supplement or correct the party's disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals its disclosures 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 respect to testimony of an expert under subsection (b)(6) the duty extends both to information contained in the disclosure and to information provided 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 learns that the response is in some material respect 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.
(f) Signing of disclosures, discovery requests, responses and objections. (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 attorney 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: (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; (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, 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 constitutes a certification that to the best of the signer's knowledge, information 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 violation 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, including reasonable attorney fees.
History: L. 1963, ch. 303, 60-226; amended by Supreme Court order dated July 20, 1972; L. 1986, ch. 215, § 6; L. 1997, ch. 173, § 11; L. 2008, ch. 21, § 2; July 1.
(1) Petition. The petition shall be entitled in the name of the petitioner and shall show: (I) that the petitioner or the petitioner's personal representatives, heirs, beneficiaries, successors or assigns may be parties to an action or proceeding cognizable in a court but are presently unable to bring or defend it, (II) the subject matter of the expected action or proceeding and his or her interest therein and a copy of any written instrument the validity or construction of which may be called in question or which is connected with the subject matter of the deposition, (III) the facts which the petitioner desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it, (IV) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (V) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(2) Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. The notice shall be served either within or without the state within the time and in the manner for personal service of summons or by restricted mail, or by any other manner affording actual notice as directed by order of the judge. The judge upon application and showing of extraordinary circumstances may prescribe a hearing on shorter notice.
(3) Order and examination. If satisfied that the petition is not for the purpose of discovery, and that its allowance may prevent future delay or failure of justice, and that the petitioner is unable to bring the contemplated action or cause it to be brought, the court shall order the testimony perpetuated, designating the deponents, the subject matter of their examination, when, where and before whom their deposition shall be taken, and whether orally or upon written interrogatories.
(4) Use of deposition. Subject to the same limitations and objections as though the deponent were testifying at the trial in person, a deposition taken in accordance with this section may be used as evidence in any action subsequently brought in any court, where the deposition is that of a party to the action, or where the issue is such that an interested party in the proceedings in which the deposition was taken had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the deposition is offered. But, except where the deposition is that of a party to the action and is offered against the party, the deposition may not be used as evidence unless the deponent is unavailable as a witness at the trial.
(b) Pending appeal. If an appeal has been taken from a judgment or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony may make a motion for leave to take the depositions, upon the same notice and service thereof as if the action was pending in that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he or she expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by K.S.A. 60-234 and 60-235, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this section for depositions taken in actions pending in the district court.
(c) Filing. Depositions taken under this section shall be filed with the court in which the petition is filed or the motion is made.
(d) Perpetuation by action. This section does not limit the power of a court to entertain an action to perpetuate testimony.
(e) Impeachment. No provision of this section is intended to limit the use of any deposition for the purpose of impeachment of the deponent when he or she is a witness in any action.
(f) Reciprocity. A deposition taken under similar procedure of another jurisdiction is admissible in this state to the same extent as a deposition taken under this act.
History: L. 1963, ch. 303, 60-227; Jan. 1, 1964.
(2) Without the state but within the United States, or within a territory 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 appointed 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 commission to take depositions within or without the state. The commission may be issued by the clerk to a person or persons therein named, under the seal of the court granting the same.
(b) In foreign countries. Depositions may be taken in a foreign 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;
(4) before a person appointed by commission. A person appointed by commission has power by virtue of the appointment to administer oaths and take testimony. A commission or letter of request shall be issued on application and notice, and on terms and directions that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other matter is impracticable or inconvenient; and both a commission and letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed "To the Appropriate Judicial 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 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. No deposition shall be taken before a person who is: (1) A relative, employee, attorney or counsel of any of the parties; (2) a relative or employee of such attorney or counsel; (3) financially interested in the action; or (4) not certified as a certified shorthand reporter by the Kansas supreme court.
(d) Depositions for use in foreign jurisdictions. Whenever the deposition of any person is to be taken in this state pursuant to the laws of another state or of the United States or of another country for use in proceedings there, the district court in the county where the deponent resides or is employed or transacts his or her business in person may, upon ex parte petition, make an order directing issuance of subpoena as provided in K.S.A. 60-245, and amendments thereto, in aid of the taking of the deposition, and may make any order in accordance with subsection (d) of K.S.A. 60-230, subsection (a) of K.S.A. 60-237 or subsection (b)(1) of K.S.A. 60-237 and amendments thereto.
History: L. 1963, ch. 303, 60-228; L. 1997, ch. 173, § 12; L. 2000, ch. 175, § 2; July 1.
History: L. 1963, ch. 303, 60-229; amended by Supreme Court order dated July 20, 1972; effective Jan. 1, 1973, and on publication in Kansas Reports.
(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, unless 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 amendments thereto, 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, 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 examination in Kansas unless deposed before expiration of the 30-day period.
(b) Notice of examination; general requirements; nonstenographic 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 notice shall state the time and place for taking the deposition and the name and address of each person to be examined, 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. 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) 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 conducted 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 deponent; 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 recording 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 recorded stenographically may also be recorded on videotape, or a comparable medium, by any party by giving notice to the other parties prior to the deposition.
(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.
(5) A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership, association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The named organization shall designate one or more officers, directors, managing agents or other persons 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.
(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 subsection (c) of K.S.A. 60-226, subsection (a) of K.S.A. 60-228, subsection (a)(1) of K.S.A. 60-237, subsection (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 or other remote electronic means is taken in the district and 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 amendments 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 stenographically or recorded by any other means ordered in accordance with subsection (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 or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shall proceed, 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 transmit the questions to the officer who shall propound 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 deponent 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 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 suspended for the time necessary to make a motion for an order. The provisions of subsection (a) of K.S.A. 60-237 and amendments thereto apply to the award of expenses incurred in relation to the motion.
(e) Review by witness; changes; signing. Unless waived by the deponent 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 reviewed 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 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 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.
Documents and things produced for inspection during the examination of the witness, 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 stenographically 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.
(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.
(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.
History: L. 1963, ch. 303, 60-230; L. 1970, ch. 234, § 1; amended by Supreme Court order dated July 20, 1972; L. 1982, ch. 242, § 1; L. 1983, ch. 194, § 1; L. 1987, ch. 219, § 1; L. 1987, ch. 218, § 2; L. 1987, ch. 220, § 1; L. 1997, ch. 173, § 13; July 1.
(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 (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 (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 and amendments thereto.
(4) Within 14 days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within 14 days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within 14 days after being served with redirect questions, a party may serve recross-questions upon 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, 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.
History: L. 1963, ch. 303, § 60-231; amended by Supreme Court order dated July 20, 1972; L. 1987, ch. 218, § 3; L. 1997, ch. 173, § 14; July 1.
(1) Any deposition may be used by any party for the purpose of contradicting 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 association 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 deposition;
(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 diligence to obtain counsel to represent such party at the taking of the deposition.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require 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 depositions previously taken; and, when an action has been brought in any court of the United States or of any state 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 subsection (b) of K.S.A. 60-228 and amendments thereto and subsection (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 transcript 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 nonstenographic 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.
(e) Effect of errors and irregularities in depositions. (1) As to notice. 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 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 writing 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 irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, delivered 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.
History: L. 1963, ch. 303, 60-232; amended by Supreme Court order dated July 20, 1972; L. 1987, ch. 218, § 4; L. 1997, ch. 173, § 15; July 1.
(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 and shall answer to the extent the interrogatory is not objectionable.
(2) The answers are to be signed by the person making the answers, and the objections signed by the attorney making the objections.
(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 the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of process upon that defendant. 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 respect to any objection to or other failure to answer an interrogatory.
(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 permitted 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 conference or other later time.
(d) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, 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 derived 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.
History: L. 1963, ch. 303, 60-233; amended by Supreme Court order dated July 20, 1972; L. 1986, ch. 215, § 7; L. 1997, ch. 173, § 16; L. 2008, ch. 21, § 3; July 1.
(b) Procedure. The request, 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 particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.
The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of process upon that defendant. The court may allow a shorter or longer time. The response 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, including an objection to the requested form or forms producing electronically stored information, stating the reasons for objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms the party intends to use. 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.
Unless the parties otherwise agree, or the court otherwise orders:
(1) 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 request;
(2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(3) a party need not produce the same electronically stored information in more than one form.
(c) Persons not parties. A person not a party to the action may be compelled to produce documents, electronically stored information and things or to submit to an inspection as provided in K.S.A. 60-245 and 60-245a, and amendments thereto.
History: L. 1963, ch. 303, 60-234; amended by Supreme Court order dated July 20, 1972; L. 1986, ch. 215, § 8; L. 1997, ch. 173, § 17; L. 2008, ch. 21, § 4; July 1.
(b) Report of 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 examiner, setting out the examiner's findings, including results of all tests made, diagnoses 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 subsection does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance 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 subsection (b) or (c) on such terms as are just. If an examiner fails or refuses to make or deliver such a report, the court may exclude the examiner's testimony if offered at the trial.
History: L. 1963, ch. 303, 60-235; amended by Supreme Court order dated July 20, 1972; L. 1980, ch. 172, § 1; L. 1997, ch. 173, § 18; July 1.
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, 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, the judge may order either that the matter is admitted or that an amended answer be served. The judge, 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, 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 conclusively 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 amendment will prejudice such party in maintaining 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 such party for any other purpose nor may it be used against such party in any other proceeding.
History: L. 1963, ch. 303, 60-236; amended by Supreme Court order dated July 20, 1972; L. 1997, ch. 173, § 19; July 1.
(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 subsection (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 subsection (b) of K.S.A. 60-230 or subsection (a) of K.S.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 discovery 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 applying for an order.
(3) Evasive or incomplete disclosure, answer or response. For purposes of this subdivision an evasive or incomplete disclosure, answer or response is to be treated as a failure to disclose, answer or respond.
(4) 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 opportunity to be heard, may 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 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 court shall, after affording an opportunity 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 expenses incurred in making the motion, including attorney fees, unless 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.
(C) If the motion is denied, the 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 to be heard, require the moving party or the attorney 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 attorney fees, unless the 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 court may enter any protective order authorized under subsection (c) of K.S.A. 60-226, and amendments thereto, and, may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation 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 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 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 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 proceeding 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 subsection (a) of K.S.A. 60-235, and amendments thereto, requiring 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 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 such party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(c) Failure to disclose; false or misleading disclosure; refusal to admit. (1) A party that without substantial justification 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 addition 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, such party may apply to the judge for an order requiring the other party to pay such party the reasonable expenses incurred in making such proof, including reasonable attorney's fees. The judge shall make the order unless the judge finds that (A) the request was held objectionable to subsection (a) of K.S.A. 60-236, and amendments thereto, or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (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 officer, director, or managing agent of a party or a person designated 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 request, 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 answer 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 such party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the judge finds that the failure was substantially 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 a pending motion for a protective order as provided by subsection (c) of K.S.A. 60-226, and amendments thereto.
(e) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
History: L. 1963, ch. 303, 60-237; amended by Supreme Court order dated July 20, 1972; L. 1997, ch. 173, § 20; L. 2008, ch. 21, § 5; July 1.
(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 10 days after the service of the last pleading directed to 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 the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 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 required by this section constitutes a waiver by 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.
History: L. 1963, ch. 303, 60-238; L. 1997, ch. 173, § 21; July 1.
(b) By the court. Issues not demanded for trial as provided in K.S.A. 60-238 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right, the court in its discretion may order a trial by jury of any or all issues.
(c) Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or (except in actions against the state when a statute of the state provides for trial without a jury) the court, with the consent of all parties, may order a trial with a jury whose verdict shall have the same effect as if trial by jury had been a matter of right.
History: L. 1963, ch. 303, 60-239; Jan. 1, 1964.
(b) Continuances. The court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application, unless the court otherwise orders.
(c) Affidavit in support of motions. The court need not entertain any motion for a continuance based on the absence of a material witness unless supported by an affidavit which shall state the name of the witness, and, if known, the witness's residence, a statement of the witness's expected testimony and the basis of such expectation, a statement that the affiant believes it to be true, and the efforts which have been made to procure the witness's attendance or deposition. The party objecting to the continuance shall not be allowed to contradict the statement of what the absent witness is expected to testify but may disprove any other statement in such affidavit. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree that the same shall be received and considered as evidence at the trial as though the witness were present and so testified. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, thing or other evidence. In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not.
History: L. 1963, ch. 303, 60-240; Jan. 1, 1964.
(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 paragraph is without prejudice.
(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. Unless the court in its order for dismissal otherwise specifies, a dismissal under this 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 dismissed 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 responsive 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 deems proper and may stay the proceedings in the action until the plaintiff has complied with the order.
History: L. 1963, ch. 303, 60-241; amended by Supreme Court order dated July 17, 1969; L. 1980, ch. 171, § 2; L. 1997, ch. 173, § 22; July 1.
(b) Separate trials. In furtherance of convenience, to avoid prejudice or when separate trials will be conducive to expedition and economy, the judge may order a separate trial in the county where the action is pending, or a different county in the judicial district, of any claim, cross-claim, counterclaim, third-party claim or any separate issue, or any number of claims, cross-claims, counterclaims, third-party claims or issues, always preserving inviolate the right of trial by jury.
(c) Multidistrict litigation. (1) When civil actions arising out of the same transaction or occurrence or series of transactions or occurrences are pending in different judicial districts, the supreme court, upon request of a party or of any court in which one of the actions is pending and upon finding that a transfer and consolidation will promote the just and efficient conduct of the actions, may order transfer of the pending actions to one of the counties in which an action is pending. The actions may be consolidated for discovery, pretrial proceedings and possible trial. The supreme court shall assign the consolidated actions to a judge designated by the supreme court. Actions filed subsequent to the order may be consolidated as provided herein.
(2) The assigned judge shall have the power to conduct all pretrial and discovery proceedings, issue orders therein, determine questions of law submitted to the court including motions for summary judgment and, when the assigned judge conducts a trial, allocate expenses of the trial among counties.
(3) In the assigned judge's discretion, the assigned judge may conduct a joint trial of any or all of the consolidated actions, but all parties to the actions jointly tried must consent to joint trial. Trials by jury may be conducted in any county which would have had venue of any of the consolidated actions, subject to a change of venue under K.S.A. 60-609 and amendments thereto. If the assigned judge determines not to conduct the trial of any one of the consolidated actions or if any party to any of the consolidated actions does not consent to joint trial, the assigned judge shall return that action, and the record in that action, to the district court from which it originated. The assigned judge shall notify the supreme court of the return of the action.
History: L. 1963, ch. 303, 60-242; amended by Supreme Court order dated July 17, 1969; L. 1983, ch. 195, § 1; July 1.
(b) Scope of examination and cross-examination. A party may interrogate 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 or private corporation or of a partnership or association which is an adverse party, and interrogate such witness by leading questions and contradict such witness and impeach such witness in all respects as if 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 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 the examining 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 followed, except that the court upon request shall take and report the evidence 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 appearing 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 fix the interpreter's reasonable compensation. The compensation 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.
History: L. 1963, ch. 303, 60-243; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 23; July 1.
History: L. 1963, ch. 303, 60-244; Jan. 1, 1964.
(A) State the name of the court from which it is issued;
(B) state the title of the action, 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, copying, testing or sampling of designated books, documents, electronically stored information 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.
A command to produce evidence or to permit inspection, copying, testing or sampling may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form in which electronically stored information is to be produced. 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, inspection, copying, testing or sampling shall issue from the district court in which the action is pending or, if the production, inspection, copying, testing or sampling 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) 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 attendance 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, inspection, copying, testing or sampling of documents 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.
(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 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, copying, testing or sampling of designated electronically stored information, books, papers, documents or tangible things or inspection 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, copying, testing or sampling 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 producing any or all of the designated materials or inspection of the premises or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test or sample 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 produce, move at any time for an order to compel the production, inspection, copying, testing or sampling. Such an order to compel shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection, copying, testing or sampling 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 information 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, 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 subpoena 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 compensated, the court may order appearance or production only upon specified conditions.
(4) A person confined in prison may be required to appear for examination by deposition only in the county where the person is imprisoned.
(d) Duties in responding to subpoena. (1) (A) 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.
(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonable usable.
(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.
(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of subsection (b)(2)(A) of K.S.A. 60-226, and amendments thereto. The court may specify conditions for the discovery.
(2) (A) When information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation 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.
(B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.
(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).
History: L. 1963, ch. 303, 60-245; amended by Supreme Court order dated July 20, 1972; amended by Supreme Court order dated July 28, 1976; L. 1982, ch. 243, § 1; L. 1985, ch. 196, § 2; L. 1990, ch. 202, § 2; L. 1997, ch. 173, § 24; L. 2008, ch. 21, § 6; July 1.
(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 of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant 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 subsection (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 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 control, 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 envelope 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. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice is given.
The reasonable costs of providing the copying of 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.
(d) Any party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued.
(e) Notice of intent to request 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 by the party requesting issuance of the subpoena. 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. If receipt of the records makes the taking of a deposition unnecessary, the party who caused the subpoena for the business records to be issued shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation 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. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice has been given.
History: L. 1985, ch. 196, § 1; L. 1997, ch. 173, § 25; L. 2000, ch. 145, § 1; L. 2004, ch. 176, § 1; July 1.
History: L. 1963, ch. 303, 60-246; Jan. 1, 1964.
(b) Voir dire examination of jurors. Prospective jurors shall be examined under oath as to their qualifications to sit as jurors. The court shall permit the parties or their attorneys to conduct an examination of prospective jurors.
(c) Challenges. In civil cases, each party shall be entitled to three (3) peremptory challenges, except as provided in subsection (h) of section 60-248, as amended, pertaining to alternate jurors. Multiple defendants or multiple plaintiffs shall be considered as a single party for purpose of making challenges except that if the judge finds there is a good faith controversy existing between multiple plaintiffs or multiple defendants, the court in its discretion and in the interest of justice, may allow any of the parties, single or multiple, additional peremptory challenges and permit them to be exercised separately or jointly.
All challenges for cause, whether to the array or panel or to individual prospective jurors, shall be determined by the court. Peremptory challenges shall be exercised in a manner which will not communicate to the challenged prospective juror the identity of the challenging party or attorney.
(d) Oath of jurors. The jurors shall be sworn to try the case conscientiously and return a verdict according to the law and the evidence.
History: L. 1963, ch. 303, 60-247; L. 1970, ch. 233, § 1; L. 1971, ch. 176, § 15; amended by Supreme Court order dated July 28, 1976; effective on publication in Kansas Reports.
(b) View of property or place. Whenever in the opinion of the court it is proper for the jury to have a view of property which is the subject of litigation or of the place in which any material fact occurred, the court may order the jury to be conducted, as a body, under the charge of an officer to the place, which shall be shown to them by a person or persons appointed by the court for that purpose. While the jury is thus absent, no person other than the person so appointed shall speak to any juror on any subject connected with the trial. A view permitted under this subsection shall not be considered by the court in determining any questions of the sufficiency or insufficiency of evidence admitted in an action.
(c) Case submitted, action and conduct of jury. When the case is finally submitted to the jury, it shall retire for deliberation. The jurors must be kept together in a convenient place under charge of an officer until they agree upon a verdict, or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night and at their meals. The officer having them under the officer's charge shall not make or allow any communications to be made to them, except the officer may ask them if they are agreed upon their verdict, unless by order of the court. The officer shall not before the verdict is rendered communicate to any person the state of their deliberations or the verdict agreed upon.
(d) Separation of jury, admonition of court. If the jurors are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or allow themselves to be addressed by, any other person on any subject of the trial; that it is their duty to keep an open mind and not to express an opinion on the subject of the trial until the case is finally submitted to them; and that the admonition applies to every separation of the jurors.
(e) Jury may request information after retiring. If, after the jury has retired for deliberation, it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in the manner directed by the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances.
(f) Discharge of jury, when. The jury may be discharged by the court on account of the sickness of a juror, or other necessity to be found by the court or by consent of both parties, or after it has been kept together until it satisfactorily appears that there is no probability of the jurors reaching a verdict.
(g) Verdict; number of jurors required; form; correction. Whenever the jury consists of 12 members, the agreement of 10 jurors shall be sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict shall be by agreement of all the jurors. The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is their verdict. If less than the required number of jurors agree, the jury must be sent out again. If agreement of the required number is expressed, and no party requires the jurors to be polled individually, the verdict is complete, and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.
(h) Alternate jurors. Immediately after the jury is empaneled and sworn, the trial judge may empanel one or more alternate or additional jurors whenever, in the judge's discretion, the judge believes it advisable to have alternate jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties. Alternate jurors shall be selected in the same manner, have the same qualifications, be subject to the same examination and challenges, take the same oath and have the same functions, powers and privileges as the regular jurors. Each party shall be entitled to one peremptory challenge to the alternate jurors. The alternate jurors shall be seated near the other jurors, with equal power and facilities for seeing and hearing the proceedings in the case, and they must attend the trial of the cause at all times with the other jurors. The alternate jurors shall obey the orders of and be bound by the admonition of the court upon each adjournment, but if the regular jurors are ordered to be kept in custody during the trial of the cause, the alternate jurors also shall be kept in confinement with the other jurors. Upon final submission of the case to the jury, the alternate jurors may be discharged or they may be retained separately and not discharged until the final decision of the jury. If the alternate jurors are not discharged on final submission of the case and if any regular juror is discharged prior to the jury's reaching a decision, the court may draw the name of an alternate juror who shall replace the discharged juror and be subject to the same rules and regulations as though the juror had been selected as one of the original jurors.
History: L. 1963, ch. 303, 60-248; L. 1971, ch. 176, § 16; L. 1973, ch. 232, § 1; amended by Supreme Court order dated July 28, 1976; L. 1978, ch. 226, § 1; L. 1984, ch. 112, § 24; July 1.
History: L. 1978, ch. 226, § 2; July 1.
(b) General verdict accompanied by answer to interrogatories. The judge may if requested in writing, submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more substantial questions of disputed facts on which decision is necessary to a verdict. The number and form thereof shall be subject to the control of the judge. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
History: L. 1963, ch. 303, 60-249; Jan. 1, 1964.
(b) In any action for damages for personal injury, if the jury finds for the plaintiff, the verdict shall be itemized by the trier of fact to reflect the amounts awarded for the following items of damage, subject to the provisions of subsection (a):
(1) Noneconomic injuries and losses, as follows:
(A) Pain and suffering,
(B) disability,
(C) disfigurement, and any accompanying mental anguish;
(2) reasonable expenses of necessary medical care, hospitalization and treatment received; and
(3) economic injuries and losses other than those itemized under subsection (b)(2).
(c) Where applicable, the amounts required to be itemized pursuant to subsection (b) shall be further itemized by the trier of fact to reflect those amounts awarded for injuries and losses sustained to date and those awarded for injuries and losses reasonably expected to be sustained in the future.
History: L. 1987, ch. 224, § 1; L. 1993, ch. 109, § 1; July 1.
(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.
(3) Decisions on motions for 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.
(b) Renewal of motion for judgment after trial; alternative motion for new trial. Whenever a motion for a 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. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment or the date the jury was discharged 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 a renewal of the motion for judgment as a matter of law, or a new trial may be 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 a matter of law. If no verdict was returned, the court, in disposing of the renewed motion, may direct the entry of judgment as a matter of law or may order a new trial.
History: L. 1963, ch. 303, 60-250; L. 1986, ch. 215, § 9; L. 1997, ch. 173, § 26; July 1.
(b) When waived. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.
History: L. 1963, ch. 303, 60-251; Jan. 1, 1964.
(b) Amendment. Upon motion of a party made not later than 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 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 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).
History: L. 1963, ch. 303, 60-252; amended by Supreme Court order dated July 28, 1976; L. 1997, ch. 173, § 27; July 1.
History: L. 1971, ch. 198, § 1; July 1.
History: L. 1971, ch. 198, § 2; July 1.
(b) Reference. With the consent of the parties, all or any issues of fact or law or both may be referred to a master. Otherwise, the judge may order a reference only on a finding that the ends of justice will be measurably advanced thereby, and, in a case triable to a jury, only on such issues as involve an examination of complex or voluminous accounts.
(c) Powers. The order of reference to the master may specify or limit the master's powers and may direct such master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before such master and to do all acts and take all measures necessary or proper for the efficient performance of such master's duties under the order. The master may require the production before such master of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in subsection (c) of K.S.A. 60-243, and amendments thereto, for a court sitting without a jury.
(d) Proceedings. (1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the master's report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in the master's discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in K.S.A. 60-245, and amendments thereto. If without adequate excuse a witness fails to appear or give evidence, he or she may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in K.S.A. 60-237 and 60-245, and amendments thereto.
(3) Statement of accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs.
(e) Report. (1) Contents and filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) In nonjury actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in subsection (c) of K.S.A. 60-206, and amendments thereto. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.
(3) In jury actions. In an action to be tried by a jury the master shall not be directed to report the evidence unless required by the court. If the master is available for cross-examination, the master's findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
(4) Stipulation as to findings. The effect of a master's report is the same whether or not the parties have consented to the reference. When the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(5) Draft report. Before filing the master's report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
History: L. 1963, ch. 303, 60-253; L. 2007, ch. 190, § 17; July 1.
(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 liabilities of all the parties.
(c) Demand for judgment. A judgment by default shall not be different 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 $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.
History: L. 1963, ch. 303, 60-254; L. 1973, ch. 233, § 1; L. 1986, ch. 215, § 10; L. 1990, ch. 203, § 2; L. 1997, ch. 173, § 28; July 1.
(b) Setting aside default. For good cause shown the court may set aside a judgment entered by default in accordance with K.S.A. 60-260 (b).
(c) Plaintiffs, counterclaimants, cross-claimants. The provisions of this section apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of K.S.A. 60-254 (c).
(d) Judgment against the state. No judgment by default shall be entered against the state or an officer or agency thereof unless the claimant establishes his or her claim or right to relief by evidence satisfactory to the court.
History: L. 1963, ch. 303, 60-255; L. 1965, ch. 354, § 4; Jan. 1, 1966.
(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 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 21 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 damages.
(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. Supporting 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 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 showing 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 affidavits 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 continuance 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.
(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.
History: L. 1963, ch. 303, 60-256; L. 1986, ch. 215, § 11; L. 1987, ch. 218, § 5; L. 1997, ch. 173, § 29; L. 2007, ch. 190, § 18; July 1.
History: L. 1963, ch. 303, 60-257; Jan. 1, 1964.
When judgment is entered by judgment form the clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure of service of a copy of the judgment form shall not affect the validity of the judgment.
History: L. 1963, ch. 303, 60-258; amended by Supreme Court order dated July 28, 1976; L. 2005, ch. 101, § 8; July 1.
(b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants, and the entry of judgment shall be made by the court. No general verdict shall be returned by the jury.
(c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to such death, personal injury, property damage or economic loss, shall be joined as an additional party to the action.
(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such party's causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.
(e) The provisions of this section shall be applicable to actions pursuant to this chapter and to actions commenced pursuant to the code of civil procedure for limited actions.
History: L. 1974, ch. 239, § 1; L. 1976, ch. 251, § 4; L. 1987, ch. 221, § 1; July 1.
History: L. 1974, ch. 239, § 2; July 1.
First. Because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.
Second. Erroneous rulings or instructions of the court.
Third. That the verdict, report or decision was given under the influence of passion or prejudice.
Fourth. That the verdict, report or decision is in whole or in part contrary to the evidence.
Fifth. For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
Sixth. That the verdict, report or decision was procured by the corruption of the party obtaining it. In this case the new trial shall be granted as a matter of right, and all the costs made in the case up to the time of granting the new trial shall be charged to the party obtaining the decision, report or verdict.
On motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, and direct the entry of a new judgment.
(b) Time for motion. A motion for a new trial shall be served not later than 10 days after the entry of judgment. After a motion has been thus timely served, the court in its discretion may (1) upon application and notice while the motion is pending, permit the moving party to amend the motion to state different or additional grounds; (2) grant the pending motion upon grounds not stated by the moving party and in that case the court shall specify the grounds in its order.
(c) Definite statement of grounds. The motion shall not follow the general language of the statute in stating the grounds for a new trial, but shall state specifically the alleged error or other grounds relied on.
(d) Time for serving affidavits. When a motion for a new trial is based upon affidavits they shall be served with the motion. The opposing party has ten (10) days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty (20) days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.
(e) On initiative of court. Not later than ten (10) days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.
(f) Motion to alter or amend a judgment. A motion to alter or amend the judgment shall be served and filed not later than ten (10) days after entry of the judgment.
(g) Production of evidence. In all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, or when authorized by the judge by deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.
History: L. 1963, ch. 303, 60-259; amended by Supreme Court order dated July 17, 1969; effective on publication in Kansas Reports and in K.S.A. 1969 Supp.
(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or said party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action.
History: L. 1963, ch. 303, 60-260; L. 1976, ch. 251, § 5; Jan. 10, 1977.
History: L. 1963, ch. 303, 60-261; Jan. 1, 1964.
(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 as a matter of law made 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.
(c) Injunction pending appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the judge in 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). The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas 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 judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
(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 suspend, 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, and amendments thereto, the court may stay enforcement of that judgment 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.
History: L. 1963, ch. 303, 60-262; L. 1976, ch. 251, § 6; L. 1997, ch. 173, § 30; July 1.
History: L. 1963, ch. 303, 60-263; Jan. 1, 1964.
History: L. 1963, ch. 303, 60-264; Jan. 1, 1964.
(1) When made applicable in any other courts, boards, commissions, or other judicial or quasi-judicial bodies by specific statutory provisions referring to this article.
(2) When any other such court or judicial or quasi-judicial body adopts by an order, which order is consistent with all statutes controlling its procedures, all or a part of this article for its own proceedings, either in a particular matter before it or in any matters generally, or
(3) When any statute pertaining to any such court or other judicial or quasi-judicial body, which statute was enacted prior to the adoption of this article and which incorporated by reference procedures under the then existing code of civil procedure, then the most nearly comparable provisions of this article shall be applicable to the procedures in such court or body until modified or supplemented by specific statutes or orders in accordance with clauses (1) or (2) of this section.
In any matter over which the court has jurisdiction but with reference to which no specific provision is included in this article, the court shall proceed in such manner as shall be just and equitable to protect the rights and interests of all parties affected thereby.
History: L. 1963, ch. 303, 60-265; L. 1976, ch. 251, § 7; L. 2000, ch. 161, § 111; Jan. 1, 2001.
History: L. 1963, ch. 303, 60-266; Jan. 1, 1964.
History: L. 1963, ch. 303, 60-267; L. 1976, ch. 251, § 8; Jan. 10, 1977.
History: L. 1963, ch. 303, 60-268; L. 2005, ch. 101, § 9; July 1.
History: L. 1963, ch. 303, 60-269; Repealed, L. 2005, ch. 101, § 19; July 1.
(b) Except as provided further, when the case has been closed the party or attorney in possession of the original documents may destroy or dispose of such documents.
(c) Original discovery documents subject to or covered by a protective order, court rule, statute or written agreement of the parties shall be retained, returned, destroyed or disposed of in accordance with the terms of the order, rule, statute or written agreement.
(d) As used in this section, "closed" means when an order terminating the action or proceeding has been filed and all appeals have been terminated, the time for appeal has expired or when the judgment is either satisfied or barred under the provisions of K.S.A. 60-2403, and amendments thereto.
History: L. 1992, ch. 190, § 1; July 1.
(b) The signature on the telefacsimile communication shall be accepted as satisfying the requirements of K.S.A. 60-211, and amendments thereto.
(c) As used in this section, telefacsimile communication means the use of electronic equipment to send or transmit a copy of a document via telephone line.
History: L. 1992, ch. 128, § 1; July 1.