Opinion
No. 108,934.
2013-05-17
Ralf M. MONDONEDO, Appellant, v. Shawnee County District Attorney, Chadwick TAYLOR, et al., Appellees.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge. Ralf M. Mondonedo, for appellant pro se. Steve R. Fabert, assistant attorney general, for appellees.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge.
Ralf M. Mondonedo, for appellant pro se. Steve R. Fabert, assistant attorney general, for appellees.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ralf M. Mondonedo filed a mandamus action in district court against Shawnee County District Attorney Chadwick Taylor, in his official capacity, seeking an order from the court requiring the district attorney “to do his job and prosecute” an alleged act of forgery by Mondonedo's ex-wife on certain student loan documents. Contrary to the requirements of K.S.A.2012 Supp. 60–304(d)(5) that he serve the petition on the attorney general, Mondonedo served an executive assistant in the office of the district attorney. Because we hold that the district court properly dismissed the petition due to insufficient service of process, we affirm.
Factual and Procedural History
In his petition for mandamus relief under K.S.A. 60–801 et seq. , Mondonedo asked the district court to order the Shawnee County District Attorney to file criminal charges against Mondonedo's ex-wife. Further details of Mondonedo's supporting allegations are unnecessary for purposes of this opinion and are known by the parties.
In his praecipe for summons, Mondonedo requested personal service of the petition upon the district attorney at “200 SE 7th ST RM 214” in Topeka. See K.S.A.2012 Supp. 60–303(d) (discussing personal service). We can take judicial notice under K.S.A. 60–409(b)(4) that this is the address for the office of the Shawnee County District Attorney. The process server subsequently served the petition at that address upon “Kathy Beach Executive Asst.”
In lieu of an answer, the district attorney moved to dismiss Mondonedo's petition on at least two independent grounds. First, the district attorney alleged he had not been properly served with process. See K.S.A.2012 Supp. 60–212(b)(5). Second, the district attorney alleged Mondonedo failed to state a claim upon which mandamus relief could be granted. See K.S.A.2012 Supp. 60–212(b)(6). Responses by Mondonedo and a reply by the district attorney ensued.
The district court granted the district attorney's motion to dismiss on the basis of improper service of process. In addition, the court found that a public citizen lacked standing to compel a public prosecutor to file a criminal complaint. Moreover, because it was undisputed that Mondonedo's ex-wife had absconded and her whereabouts were unknown, mandamus could not be used to compel a futile act. In other words, if the prosecutor could not locate her, he could not serve her with legal process necessary to institute criminal proceedings.
This is Mondonedo's timely appeal from the district court's judgment granting the district attorney's motion to dismiss on all grounds.
Analysis
Mondonedo challenges the propriety of each of the alternative grounds for the district court's dismissal of his lawsuit. We begin with his challenge to the district court's dismissal for insufficient service of process. Mondonedo failed to properly serve the petition, so the district court never obtained jurisdiction over the district attorney.
Under Kansas law, civil lawsuits, including those seeking mandamus relief under K.S.A. 60–801 et seq. , are legally commenced only after the petition is both filed in the district court and properly served upon the defendant within a 90–day window. See K.S.A.2012 Supp. 60–203. If service of process is legally insufficient, then a district court never obtains jurisdiction over the person of the defendant. Porter v. Wells Fargo Bank, 45 Kan.App.2d 931, 933–34, 257 P.3d 788 (2011). We are asked to decide if that is what happened in this case.
Because this issue invokes questions of the district court's jurisdiction over the district attorney, we have de novo review. See 45 Kan.App.2d at 934.
The district attorney moved to dismiss Mondonedo's petition in part because the service of the petition did not comply with K.S.A.2012 Supp. 60–304(d)(5). This statute requires that, except for service by publication, service of process shall be made upon “the state or any governmental agency of the state, when subject to suit, by serving the attorney general or an assistant attorney general.” K.S.A.2012 Supp. 60–304(d)(5); K.S.A. 22a–101 (district attorney is not an officer of the county). To reiterate, Mondonedo's petition was served upon an executive assistant at the district attorney's office, which is both legally and physically separated from the attorney general's office.
Mondonedo now argues that the district court's dismissal for lack of proper service was contrary to the law on several grounds, which we address in turn.
First, Mondonedo suggests that the attorney general effectively entered his appearance by obtaining a clerk's extension of time to answer the petition, thereby curing any defect in service of process. The authority he cites does not support his argument, however. K.S.A.2012 Supp. 60–203(c) does provide that “[t]he filing of an entry of appearance has the same effect as service.” But the attorney general did not enter an appearance here; he simply filed a motion on behalf of the district attorney for an extension of time to answer. A motion for extension of time to answer is not a waiver to the lack of jurisdiction due to insufficiency of process. Rather, the defense of insufficient service of process is waived only when it is not properly raised by motion or in the answer as provided in K.S.A.2012 Supp. 60–212(h)(1). There was no such waiver here.
Mondonedo next suggests K.S.A.2012 Supp. 60–304(d)(5) does not govern the service of his petition for mandamus relief. Citing Pieren–Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 106 P.3d 492 (2005), Mondonedo argues this is so because his petition was for a “ ‘special proceeding’ and not the commencement of a civil action .” In Pieren–Abbott, the court confronted the issue of whether the Code of Civil Procedure, K.S.A. 60–101 et seq. , applied to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77–601 et seq. 279 Kan. at 85. It is, therefore, legally distinguishable. Mondonedo's petition was obviously for relief under the Civil Code, i.e., K.S.A. 60–801 et seq. , and, therefore, was subject to the Code of Civil Procedure.
Mondonedo also suggests that he substantially complied with the service requirements of K.S.A.2012 Supp. 60–304(d)(5). See K.S.A.2012 Supp. 60–204 (deeming substantial compliance with methods of service sufficient upon certain findings by court). In support, Mondonedo cites Chee–Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), suggesting that case held “that even personal service on the wrong officer of the governmental unit may be sufficient.” That is not the direct holding of Chee–Craw Teachers Ass'n, though the court did discuss how the doctrine of substantial compliance applies in the context of serving a summons. 225 Kan. at 563. As the Supreme Court later pointed out in Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 876, 127 P.3d 319 (2006), Chee–Craw Teachers Ass'n was unique because the plaintiff served the superintendent of the school district, someone with significantly more authority over the entity sued than the clerk of the school board upon whom the statute required service. In that unique circumstance, substantial compliance was found to be sufficient. Accordingly, Chee–Craw Teachers Ass'n is distinguishable from this case, where a clerical employee was served. Moreover, Mondonedo cites no authority in support of his suggestion that the executive assistant upon whom Mondonedo's petition was served is somehow a part of the same governmental unit as the attorney general or an assistant attorney general.
The only other perceived attempt by Mondonedo to avoid the district court's dismissal of his lawsuit for insufficient service of process is his brief suggestion that the district attorney was prejudiced against him and violated his due process rights. Because he cites absolutely no authority to support these summary contentions, we hold he has abandoned these arguments. See Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 335, 291 P.3d 1056 (2013) (deeming argument “[w]ithout any substance behind it” abandoned).
In light of our holding that the district court did not err in dismissing Mondonedo's lawsuit for insufficient service of process, we need not reach the district court's alternative holdings in support of dismissal.
Affirmed.