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60-212. Defenses and objections; presentations, when and how; certain motions; waiver. (a) Time to serve a responsive pleading. (1) In general. Unless otherwise provided by law, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) Within 21 days after being served with the summons and petition; or

(ii) within the time fixed in the notice when service is by publication, which must not be less than 41 days from the time the notice is first published;

(B) a party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim; and

(C) a party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) Effect of a motion. Unless the court sets a different time, serving a motion under this section alters these periods as follows:

(A) If the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) How to present defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) Lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under K.S.A. 60-219, and amendments thereto.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for judgment on the pleadings. After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.

(d) Result of presenting matters outside the pleadings. If, on a motion under subsection (b)(6) or (c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under K.S.A. 60-256, and amendments thereto. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a more definite statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed, but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading, and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act:

(1) On its own; or

(2) on motion made by a party either before responding to the pleading, or, if a response is not allowed, within 21 days after being served with the pleading.

(g) Joining motions. (1) Right to join. A motion under this section may be joined with any other motions allowed under this section.

(2) Limitation on further motions. Except as provided in subsection (h)(2) or (3), a party that makes a motion under this section must not make another motion under this section raising a defense or objection that was available to the party, but omitted from its earlier motion.

(h) Waiving and preserving certain defenses. (1) When some are waived. A party waives any defense listed in subsections (b)(2) through (5) by:

(A) Omitting it from a motion in the circumstances described in subsection (g)(2); or

(B) failing to either:

(i) Make it by motion under this section; or

(ii) include it in a responsive pleading, or in an amendment allowed by subsection (a)(1) of K.S.A. 60-215, and amendments thereto, as a matter of course.

(2) When to raise others. Failure to state a claim upon which relief can be granted, to join a person required by subsection (b) of K.S.A. 60-219, and amendments thereto, or to state a legal defense to a claim may be raised:

(A) In any pleading allowed or ordered under subsection (a) of K.S.A. 60-207, and amendments thereto;

(B) by a motion under subsection (c); or

(C) at trial.

(3) Lack of subject-matter jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing before trial. If a party so moves, any defense listed in subsections (b)(1) through (7), whether made in a pleading or by a motion, and a motion under subsection (c), must be heard and decided before trial unless the court orders a deferral until trial.

(j) Answer for minor or incapacitated person. The guardian or conservator of a minor or incapacitated person, or the attorney for a person in prison must in the answer deny all the material allegations in the petition prejudicial to the 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; L. 2010, ch. 135, § 79; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, §§ 105, 106; L. 1909, ch. 182, §§ 107, 108; R.S. 1923, 60-726, 60-727.

(b). G.S. 1868, ch. 80, §§ 89, 94, 102; L. 1909, ch. 182, §§ 93, 97, 104; L. 1911, ch. 230, § 1; R.S. 1923, 60-705, 60-710, 60-717.

(d). G.S. 1868, ch. 80, §§ 315, 534; L. 1870, ch. 87, § 10; L. 1871, ch. 116, § 5; L. 1909, ch. 182, §§ 313, 558; R.S. 1923, 60-722, 60-2932.

(e). G.S. 1868, ch. 80, §§ 88, 119; L. 1909, ch. 182, § 122; R.S. 1923, 60-741.

(f). G.S. 1868, ch. 80, §§ 88, 119, 537; L. 1909, ch. 182, §§ 122, 561; R.S. 1923, 60-725, 60-741.

(g). G.S. 1868, ch. 80, § 533; L. 1909, ch. 182, § 557; R.S. 1923, 60-721.

(h). G.S. 1868, ch. 80, § 91; L. 1909, ch. 182, § 95; R.S. 1923, 60-707.

(i). G.S. 1868, ch. 80, § 101; L. 1909, ch. 182, § 103; R.S. 1923, 60-716.

Cross References to Related Sections:

Class actions, see 60-223.

Counterclaims and cross-claims, see 60-213.

Failure of party to attend or serve answers, see 60-237(d).

Form of pleadings, see 60-210.

General rules of pleadings, see 60-208.

Joinder of claims and remedies, see 60-218.

Misjoinder not ground for dismissal, see 60-221.

Pleadings allowed, forms of motions, see 60-207.

Summary judgment, see 60-256.

Third-party practice, see 60-214.

Time, computation and extension, see 60-206.

General provisions governing discovery, see 60-226.

Law Review and Bar Journal References:

Subsections (b), (e) and (h) commented upon prior to legislative enactment, George Templar, 31 J.B.A.K. 167, 168 (1962).

"Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 206 (1962).

Paragraph (b) (1); 1963-65 survey of administrative law, Kenton C. Granger, 14 K.L.R. 149, 159 (1965).

Paragraph (b); 1963-65 survey of civil practice, Earl B. Shurtz, 14 K.L.R. 171, 173 (1965).

Paragraphs (b) (4) and (b) (7); discussing wrongful death act, Robert C. Casad, 13 K.L.R. 515, 528 (1965).

Motions hereunder distinguished from motion for summary judgment, Marion Beatty, 36 J.B.A.K. 17, 19 (1967).

Kansas family law survey, Harvey S. Berenson, 17 K.L.R. 349, 364 (1969).

"Bench Decisions and Opinion Writing," Robert H. Miller, 47 J.B.A.K. 247, 250 (1978).

"Procedural Pitfalls in Defamation Litigation," Leon B. Graves, 3 J.K.T.L.A. No. 1, 6, 7, 8 (1979).

"Comparative Fault: Avoiding the Phantom Trap," Dan Wulz, 6 J.K.T.L.A. No. 4, 8 (1983).

"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 528, 529, 535 (1984).

"A Quantitative and Descriptive Survey of Evidence Law in the Kansas Appellate Courts," Stanley D. Davis, 37 K.L.R. 715, 718 (1989).

"Challenging and Defending Agency Actions in Kansas," Steve Leben, 64 J.K.B.A. No. 5, 22, 34, 36 (1995).

"The Fair Debt Collection Practices Act: Lawyers Beware," Laura L. Ice, 64 J.K.B.A. No. 10, 32, 34 (1995).

"Retaliatory Demotion: The Kansas Supreme Court Extends Retaliatory Discharge. Brigham v. Dillon Companies, Inc.," Angela Spigarelli, J.K.T.L.A. Vol. XXI, No. 2, 11 (1997).

"A practitioner's guide to summary judgment Part II," Robert W. Parnacott, 68 J.K.B.A. No. 1, 30 (1999).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-705, 60-707, 60-710, 60-716, 60-717, 60-721, 60-722, 60-725 to 60-727, 60-741, 60-2932, 60-3827 (No. 45) and the 1961 Supp. thereto.

1. Section permits combining objection to jurisdiction of the person with pleadings on merits; no distinction between general and special appearance; lack of jurisdiction of subject matter may be asserted at any time. Small v. Small, 195 K. 531, 407 P.2d 491.

2. Subsection (c) cited in action to set aside property settlement. Cramer v. Wohlgemuth, 195 K. 622, 625, 408 P.2d 644.

3. Motion to dismiss; municipal corporation not liable for negligence of officers or employees performing governmental function; subsection (b) cited. Parker v. City of Hutchinson, 196 K. 148, 410 P.2d 347.

4. Motion to dismiss petition for failure to state claim treated as one for summary judgment. Graham v. Corporon, 196 K. 564, 565, 413 P.2d 110.

5. Power of court to grant summary judgment in action for alleged malpractice. Collins v. Meeker, 198 K. 390, 393, 424 P.2d 488.

6. Sustaining of motion to dismiss for failure to state claim upon which relief may be granted overruled. Thompson v. Phillips Pipe Line Co., 200 K. 669, 672, 676, 438 P.2d 146.

7. Motion to dismiss determined from allegations of petition; motion for summary judgment may include matters outside the pleadings. Gardner v. McDowell, 202 K. 705, 706, 451 P.2d 501.

8. Paragraph (b) applied; failure to state claims for relief at hearing to dismiss; counts dismissed. Bicknell v. Jones, 203 K. 196, 201, 453 P.2d 127.

9. Mentioned in construing 60-260; extent of review; trial court discretion; time for motion for relief. Neagle v. Brooks, 203 K. 323, 329, 454 P.2d 544.

10. Subsection (b) (6) cited in holding appellant failed to state claim. Prophet v. Builders, Inc., 204 K. 268, 269, 462 P.2d 122.

11. Motion for more definite statement sustained by trial court; action involuntarily dismissed upon plaintiff's failure to comply; reversed on appeal. Abbott Construction, Inc. v. Abilene Motors, Inc., 204 K. 335, 336, 461 P.2d 795.

12. In case submitted on the pleadings, where matters outside pleadings are presented on motion for judgment, parties should be given reasonable opportunity to present all pertinent material. Stratmann v. Stratmann, 204 K. 658, 660, 465 P.2d 938.

13. Under subsection (b) (6) this motion must be decided from the facts and may be treated as the modern equivalent of a demurrer. Robertson v. McCune, 205 K. 696, 700, 472 P.2d 215.

14. A motion under subsection (c) is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves. Tabor v. Lederer, 205 K. 746, 748, 472 P.2d 209.

15. Granting of motion under subsection (b) (6) upheld; dismissal is justified only when allegations of petition clearly demonstrate plaintiff does not have claim. Weil & Associates v. Urban Renewal Agency, 206 K. 405, 413, 417, 479 P.2d 875.

16. Defendant may impeach a sheriff's return of service of summons showing personal service, if attacked timely before rendition of judgment. Haley v. Hershberger, 207 K. 459, 462, 485 P.2d 1321.

17. Under subsection (h) the defense of lack of jurisdiction of the person is waived only when not raised by motion or in the answer. Haley v. Hershberger, 207 K. 459, 465, 485 P.2d 1321.

18. Distinction between general and special appearances abolished; defendant need no longer appear specifically to attack court's jurisdiction. Haley v. Hershberger, 207 K. 459, 465, 485 P.2d 1321.

19. (Correction) Venue for the appeal from order of state appeals committee of state department was in Wyandotte county. Powers v. State Department of Social Welfare, 208 K. 605, 609, 493 P.2d 590.

20. Cited in holding trial court did not err in permitting plaintiff to amend original petition by changing name of defendant. Marr v. Geiger Ready Mix Co., 209 K. 40, 49, 50, 495 P.2d 1399.

21. Subsection (b) (6) cited; trial court sustained motion to dismiss; reversed; petition held to state cause of action. Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 K. 537, 538, 546, 498 P.2d 265.

22. Third party held to be joint tortfeasor and not "contingently necessary" under 60-219; failure to join not basis for dismissal. Froelich v. Werbin, 212 K. 119, 120, 121, 122, 509 P.2d 1118.

23. Subsection (b) cited as entitling party to raise jurisdictional questions over subject matter or person. In re Estate of Barnes, 212 K. 502, 519, 512 P.2d 387.

24. Subsection (b) (6) motion sustained in action involving mechanics' lien. Sutherland Lumber Co. v. Due, 212 K. 658, 659, 512 P.2d 525.

25. Appearance by counsel raising defenses under subsection (b) (2), (4) and (5) by motion did not waive named defendants' right. City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 K. 399, 406, 517 P.2d 117.

26. Motion for judgment on pleadings by defendants proper; defense of absolute immunity. Clear Water Truck Co., Inc. v. Mr. Bruenger & Co., Inc., 214 K. 139, 140, 141, 519 P.2d 682.

27. Petition under 19-805 sufficiently stated cause of action. Monroe v. Darr, 214 K. 426, 430, 520 P.2d 1197.

28. Review limited to plaintiff's petition tantamount to motion to dismiss hereunder; petition stated cause of action. Continental Ins. Co. v. Windle, 214 K. 468, 469, 520 P.2d 1235.

29. Applied; motion to dismiss; liberal construction in favor of party against whom motion directed. Lorson v. Falcon Coach, Inc., 214 K. 670, 679, 522 P.2d 449.

30. Motion to dismiss under (b) (6) may be made after responsive pleading by motion for judgment on pleadings under (h) (2). Wollums v. Simonsen, 214 K. 722, 725, 726, 522 P.2d 1321.

31. Subsection (c) applied; action to enjoin enforcement of subpoena; motion for judgment on pleadings treated as motion for summary judgment. Atchison, T. & S. F. Rly. Co. v. Lopez, 216 K. 108, 113, 531 P.2d 455.

32. Action for specific performance of contract dismissed; application of clean hands doctrine. Green v. Higgins, 217 K. 217, 219, 220, 535 P.2d 446.

33. Notice pleading discussed; elements necessary to plead defamation not changed from prior law; elements stated. Schulze v. Coykendall, 218 K. 653, 656, 545 P.2d 392.

34. Subsection (e) applied; plaintiff failed to furnish necessary information; summary judgment, as to slander claim, affirmed. Schulze v. Coykendall, 218 K. 653, 658, 545 P.2d 392.

35. Motion to dismiss pursuant to subsection (b) (6) sustained by trial court in quiet title action; reversed on appeal. Weaver v. Frazee, 219 K. 42, 44, 52, 547 P.2d 1005.

36. Timely motion extended time for filing pleading; default judgment entered while motion pending vacated. Goldsberry v. Lewis, 220 K. 69, 71, 72, 551 P.2d 862.

37. Petition based on invasion of privacy sufficient to withstand motion to dismiss. Rinsley v. Frydman, 221 K. 297, 298, 300, 301, 302, 559 P.2d 334.

38. Section cited; defendant was not doing business in this state. Scrivner v. Twin Americas Agricultural & Industrial Developers, Inc., 1 K.A.2d 404, 407, 573 P.2d 614.

39. Election contest action properly dismissed under 25-308; 60-2101 not available. Hiett v. Brier, 2 K.A.2d 610, 614, 586 P.2d 55.

40. Motion hereunder filed in allegedly premature quiet title action; trial court's refusal to quiet title reversed and remanded. Roberts v. Osburn, 3 K.A.2d 90, 92, 589 P.2d 985.

41. Motion hereunder to dismiss action against Kansas turnpike authority sustained; reversed on appeal; governmental immunity statute unconstitutional when applied to highway defects. Flax v. Kansas Turnpike Authority, 226 K. 1, 2, 596 P.2d 446.

42. Dismissal pursuant to subsection (b)(6) reversed as to malicious prosecution claim, affirmed as to claim based on professional negligence. Nelson v. Miller, 227 K. 271, 273, 607 P.2d 438.

43. Where petition in limited action fails to set out times and places, defendant may move for a more definite statement under subsection (e); dismissal under subsection (b)(6) reversed. Mitchell v. Wiltfong, 4 K.A.2d 231, 232, 235, 604 P.2d 79.

44. Subsection (b)(6) cited in holding summary judgment premature. Pottratz v. Firkins, 4 K.A.2d 469, 609 P.2d 185.

45. Cited. Kennedy v. City of Sawyer, 4 K.A.2d 545, 547, 548, 608 P.2d 1379. Reversed: 228 K. 439, 618 P.2d 788.

46. Action not commenced until filing and service. Davila v. Vanderberg, 4 K.A.2d 586, 587, 608 P.2d 1388.

47. Within discretion of trial judge whether motion may be amended to include challenge of service of process after statute of limitations had run but prior to motion being acted upon. Bray v. Bayles, 4 K.A.2d 596, 601, 602, 603, 609 P.2d 1146. Reversed: 228 K. 481, 618 P.2d 807.

48. There is clear definitional distinction between process and service of process. Bray v. Bayles, 4 K.A.2d 596, 610, 611, 609 P.2d 1146. Reversed in part on other grounds: 228 K. 481, 618 P.2d 807.

49. Where motion for summary judgment challenges state court's jurisdiction over labor dispute, appellate court should read record in light most favorable to party defending against motion. Collier v. Operating Engineers Local Union No. 101, 228 K. 52, 55, 56, 612 P.2d 150.

50. Where matters outside pleadings in form of affidavits, admissions and exhibits only evidence considered by court, motions for dismissal correctly treated as motions for summary judgment. Cussimanio v. Kansas City Southern Ry. Co., 5 K.A.2d 379, 382, 617 P.2d 107.

51. Trial judge did not order plaintiff to comply with motion for more definite statement; error to dismiss petition for failure to state a claim. Knight v. Neodesha Police Dept., 5 K.A.2d 472, 474, 481, 620 P.2d 837.

52. Error for trial court to allow motion to be amended challenging service of process after statute of limitations had run but prior to motion being acted upon. Bray v. Bayles, 228 K. 481, 486, 487, 488, 489, 618 P.2d 807.

53. Service upon resident agent of dissolved corporation during three-year wind-up period constitutes valid service on corporation. Vogel v. Missouri Valley Steel, Inc., 229 K. 492, 499, 625 P.2d 1123.

54. Subsection (h)(3) applied; dismissal of action against executor upheld where probate proceedings pending elsewhere. Quinlan v. Leech, 5 K.A.2d 706, 709, 623 P.2d 1365.

55. Dismissal of action for damages resulting from perjury or conspiracy to commit perjury, affirmed. Hokanson v. Lichtor, 5 K.A.2d 802, 804, 810, 626 P.2d 214.

56. Failure to object to service not waiver of defense if party and counsel do not appear. Wilson & Walker v. State, 230 K. 49, 54, 630 P.2d 1102 (1981).

57. Trial court erred in granting motion for judgment on pleadings; abuse of discretion in not allowing answer to be filed. Simmon v. Bond, 6 K.A.2d 766, 768, 634 P.2d 1148 (1981).

58. When matters outside pleadings presented, motion to dismiss for failure to state claim treated as one for summary judgment. Mouber v. City of Prairie Village, 6 K.A.2d 972, 974, 637 P.2d 424 (1981).

59. Cited; subsection (e) motion; declaratory action; authority to require combined reporting of corporate income. Department of Revenue v. Dow Chemical Co., 231 K. 37, 40, 642 P.2d 104 (1982).

60. Dismissal of wrongful death action affirmed; governmental immunity under 46-901 applicable. Hendrix v. City of Topeka, 231 K. 113, 114, 643 P.2d 129 (1982).

61. Suit against city by person injured during mob violence dismissed; not "street defect" for which relief could be granted. Warden v. City of Wichita, 232 K. 838, 658 P.2d 1043 (1983).

62. Motion to dismiss pursuant to subsection (b) (6) sustained by trial court was "on the merits" with res judicata effect. Wirt v. Esrey, 233 K. 300, 308, 309, 662 P.2d 1238 (1983).

63. Dismissed for failure to state claim; 60-907 provides relief from illegal sewer assessment only to one against whom assessment levied. Dutoit v. Board of Johnson County Comm'rs, 233 K. 995, 997, 667 P.2d 879 (1983).

64. Examination of factual background of plaintiff's claim is proper even though issue is jurisdiction rather than whether relief can be granted hereunder. Collins v. MBPXL Corp., 9 K.A.2d 363, 369, 679 P.2d 746 (1984).

65. Judgment on pleadings denied; action for foreclosure of real estate mortgage. Carpenter v. Riley, 234 K. 758, 760, 675 P.2d 900 (1984).

66. Error to dismiss under subsection (b)(6); intracorporate communications constitute publication in defamation action. Luttrell v. United Telephone System, Inc., 9 K.A.2d 620, 623, 683 P.2d 1292 (1984).

67. When matters outside pleadings not excluded, motion to dismiss treated as one for summary judgment under 60-256. Bethany Medical Center v. Knox, 10 K.A.2d 192, 193, 694 P.2d 1331 (1985).

68. Where service on city void and no jurisdiction acquired, jurisdiction not conferred by waiver of defense. Hopkins v. State, 237 K. 601, 605, 702 P.2d 311 (1985).

69. Cited; absent legislation, suppliers of alcohol not liable to victims of intoxicated tort feasors; no claim for relief stated. Ling v. Jan's Liquors, 237 K. 629, 630, 641, 703 P.2d 731 (1985).

70. Matters outside pleadings cause motion to be treated as summary judgment; disputed facts not affecting decision can be ignored. Buckle v. Caylor, 10 K.A.2d 443, 444, 700 P.2d 979 (1985).

71. Cited; term "regulation" in 12-712 includes actions on special use permits and provides procedures for obtaining appellate review. Sprint Print, Inc. v. City of Overland Park, 238 K. 230, 231, 235, 708 P.2d 210 (1985).

72. Subsection (b)(6) cited; "wrongful pregnancy," "wrongful birth" and "wrongful life" distinguished; wrongful life action not recognized in Kansas. Bruggemean v. Schimke, 239 K. 245, 246, 254, 718 P.2d 635 (1986).

73. Construed; challenge to jurisdiction over person can be regarded as including challenge to service of process (60-304(a)). Newell v. Krause, 239 K. 550, 554, 722 P.2d 530 (1986).

74. Motion to dismiss treated as motion for summary judgment. Beck v. Kansas Adult Authority, 241 K. 13, 14, 24, 735 P.2d 222 (1987).

75. Cited by dissent where majority held mother must have opportunity to challenge validity of consent under 59-2102. In re Adoption of Baby Girl H, 12 K.A.2d 223, 233, 739 P.2d 1 (1987).

76. Cited; dismissal on grounds of no duty on private school to provide disability insurance for student athletes examined. Wicina v. Strecker, 242 K. 278, 279, 747 P.2d 167 (1987).

77. Cited; tort claims act provision (75-6104k) as not extending mantle of immunity beyond boundaries of common law examined. Taylor v. Reno County, 242 K. 307, 747 P.2d 100 (1987).

78. Cited; nonrenewal of nontenured teacher (72-5413 et seq.), inapplicability of master agreement provision on evaluation (72-9001 et seq.) examined. Miller v. U.S.D. No. 470, 242 K. 817, 819, 752 P.2d 113 (1988).

79. Cited; summary judgment entered where no actual damages shown in fraud claim against realtor. Hoffman v. Haug, 242 K. 867, 870, 752 P.2d 124 (1988).

80. Cited; discharge of probationary employee in retaliation for reporting employer's illegal practices as actionable tort examined. Palmer v. Brown, 242 K. 893, 895, 752 P.2d 685 (1988).

81. Cited; preemption of state law governing secured transactions by federal statutes examined. Rural Gas, Inc. v. North Central Kan. Prod. Cred. Corp., 243 K. 109, 110, 755 P.2d 529 (1988).

82. Defendant's constitutional right to procedural due process as subject to forfeiture for failure to answer timely examined. Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 K. 490, 493, 781 P.2d 1077 (1989).

83. When dismissal of habeas corpus petition hereunder permissible examined. Shepherd v. Davies, 14 K.A.2d 333, 335, 789 P.2d 1190 (1990).

84. 1-402 as providing adequate substitute remedy for common-law action of professional liability against accountant determined. Gillespie v. Seymour, 14 K.A.2d 563, 796 P.2d 1060 (1990).

85. When a motion to dismiss raises legal sufficiency of a claim, the motion may be treated as a demurrer. Noel v. Pizza Hut, Inc., 15 K.A.2d 225, 230, 805 P.2d 1244 (1991).

86. Landlord's failure to supply hot water to tenant's bathtub as not proximate cause for injury to tenant's child examined. Aguirre v. Adams, 15 K.A.2d 470, 809 P.2d 8 (1991).

87. Motion for judgment shall be treated as one for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Admire Bank & Trust v. City of Emporia, 250 K. 688, 691, 829 P.2d 578 (1992).

88. Kansas mineral interest lapse statutes discussed and construed. Scully v. Overall, 17 K.A.2d 582, 583, 840 P.2d 1211 (1992).

89. Where motion to dismiss raises issue concerning legal sufficiency of claim, motion may be treated as modern equivalent of demurrer. Blevins v. Board of Douglas County Comm'rs, 251 K. 374, 381, 834 P.2d 1344 (1992).

90. Cited where court determined no remedy available to heirs of employee covered by workers compensation act. Karhoff v. National Mills, Inc., 18 K.A.2d 302, 304, 851 P.2d 1021 (1993).

91. Evidence outside pleadings cause motion to dismiss to be treated as a motion for summary judgment. Dillard v. Strecker, 18 K.A.2d 899, 901, 861 P.2d 1372 (1993).

92. Whether defendant who fails to raise specificity requirement waives issue by requesting a more definite statement examined. University of Kansas v. Department of Human Resources, 20 K.A.2d 354, 357, 887 P.2d 1147 (1995).

93. Whether a party responding to an amended pleading may include new defenses unrelated to specific amendment being responded to examined. King v. Pimentel, 20 K.A.2d 579, 585, 890 P.2d 1217 (1995).

94. Whether trial court's error in concluding it lacked jurisdiction over defendant was harmless error examined. Austin v. Johnston Coca-Cola Bottling Group, Inc., 20 K.A.2d 715, 720, 893 P.2d 1143 (1995).

95. Whether prisoner's habeas corpus challenge to administrative segregation should be summarily dismissed examined. Gray v. Nelson, 20 K.A.2d 900, 902, 893 P.2d 842 (1995).

96. When trial court considers matters outside pleadings motion to dismiss will be treated as motion for summary judgment. Davidson v. Denning, 259 K. 659, 662, 666, 914 P.2d 936 (1996).

97. Oral motion for more specific petition; court's failure to order same or dismiss not error. Karns v. Kansas Bd. of Agriculture, 22 K.A.2d 739, 745, 923 P.2d 78 (1996).

98. Post judgment motions for reconsideration filed without challenging jurisdiction waived lack of personal jurisdiction defense. Carrington v. Unseld, 22 K.A.2d 815, 818, 819, 923 P.2d 1052 (1996).

99. Cited in case holding Wichita city flood ordinance did not create a duty to individuals which would support a claim for negligence. Jack v. City of Wichita, 23 K.A.2d 606, 608, 933 P.2d 787 (1997).

100. In (b)(6) motion trial court not required to accept conclusory allegations of legal effects contradicted by plaintiff's facts. Grindsted Products, Inc. v. Kansas Corporation Comm'n, 262 K. 294, 302, 937 P.2d 1 (1997).

101. Dismissal proper where plaintiff's contentions conflicted with petition's allegations regarding Davis-Bacon Act prevailing wage requirements. Bennett v. Van Doren Industries, Inc., 262 K. 426, 430, 939 P.2d 874 (1997).

102. Insufficient service defense may be asserted and preserved in responsive pleading or motion. Jenkins v. City of Topeka, 136 F.3d 1274, 1276 (1998).

103. Federal civil procedure rule 11 does not preclude state action for malicious prosecution in abuse of process. McShares, Inc. v. Barry, 266 K. 479, 480, 970 P.2d 1005 (1998).

104. Personal service over defendant not acquired by service at defendant's home on separated spouse visiting at the time of service; issue timely raised in motion to dismiss. Kansas Bd. of Regents v. Skinner, 267 K. 808, 814, 987 P.2d 1096 (1999).

105. No error in sustaining defendant's motion to dismiss. Goldbarth v. Kansas State Board of Regents, 269 K. 881, 9 P.3d 1251 (2000).

106. Motion to dismiss granted; question must be decided upon contents of petition. Estate of Beckner v. Jensen, 29 K.A.2d 129, 24 P.3d 169 (2001).

107. Summary judgment not appropriate when material facts are controverted. Reebles, Inc. v. Bank of America, N.A., 29 K.A.2d 205, 25 P.3d 871 (2001).

108. Pro se petition of 17 pages with incomprehensible and convoluted allegations dismissed for failure to state a claim. Gatlin v. Hartley, Nicholson, Hartley & Arnett, P.A., 29 K.A.2d 318, 26 P.3d 1284 (2001).

109. Motion for summary judgment affirmed; employee's termination was based on company's drug policy and was not retaliatory discharge. Bracken v. Dixon Industries, 272 K. 1272, 38 P.3d 679 (2002).

110. Court properly treated motion to dismiss as motion for summary judgment in addressing merits of case. Perry v. Board of Franklin County Comm'rs, 281 K. 801, 807, 132 P.3d 1279 (2006).

111. Trial court erred in granting motion to dismiss, K.S.A. 17-7307 did not bar appellant from bringing claim. Alliance Steel v. Piland, 35 K.A.2d 728, 738, 134 P.3d 669 (2006).

112. District court erred dismissing action based on forum selection clause or belief failed to plead partitionable interest. Nelson Energy Programs v. Oil & Gas Technology Fund, 36 K.A.2d 462, 474, 143 P.3d 50 (2006).

113. If matters outside pleadings are presented to court, a motion to dismiss treated as motion for summary judgment. Underhill v. Thompson, 37 K.A.2d 870, 874, 158 P.3d 987 (2007).

114. When K.S.A. 60-212 motion contests a claim's legal sufficiency, question must be decided from well-pleaded fact in plaintiff's petition. Dye v. WMC, Inc., 38 K.A.2d 655, 660, 661, 172 P.3d 49 (2007).

115. Motion to dismiss reversed; court set forth principles regarding dismissing a petition for failure to state a claim. Rector v. Tatham, 38 K.A.2d 933, 936, 174 P.3d 445 (2008).

116. Cited in discussion of standing; persons commenting during public hearing by agency meet KJRA standing requirements. Board of Sumner County Comm'rs v. Bremby, 286 K. 745, 757, 189 P.3d 494 (2008).

117. Cited in suit brought by convict for perjury by witness at criminal trial; no civil action for perjury. Droge v. Rempel, 39 K.A.2d 455-457, 180 P.3d 1094 (2008).

118. Party challenging service of process must do so with responsive pleading or motion. Rawlins v. State, 39 K.A.2d 666, 675, 182 P.3d 1271 (2008).

119. Motion to dismiss claims of comparative implied indemnity in comparative negligence sustained. Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 K. 619, 205 P.3d 1265 (2009).

120. Trial court upheld in granting motion for failure to state a claim upon which relief can be granted. Knop v. Gardner Edgerton U.S.D. No. 231, 41 K.A.2d 698, 205 P.3d 755 (2009).

121. Summary judgment and dismissal upheld based on contract language. Santana v. Olguin, 41 K.A.2d 1086, 208 P.3d 328 (2009).

122. Dismissal of case proper. McCabe v. Hoch, 42 K.A.2d 747, 216 P.3d 720 (2009).

123. Motion to dismiss needs to be treated like summary judgment motion when matters outside the pleadings considered. Rhoten v. Dickson, 290 K. 92, 223 P.3d 786 (2010).

124. Factual disputes are resolved in plaintiff's favor if the court rules on motion to dismiss before trial. Aeroflex Wichita, Inc. v. Filardo, 294 K. 258, 275 P.3d 869 (2012).

125. Default judgment was held to be not clearly erroneous under the facts of this case. Church of God in Christ, Inc. v. Board of Trustees, 47 K.A.2d 674, 280 P.3d 795 (2012).

126. Attaching affidavit to a motion to dismiss converts it to a motion for summary judgment. Sperry v. McKune, 305 K. 469, 481, 384 P.3d 1003 (2016).

127. A party responding to a motion to dismiss filed under K.S.A. 60-212 may respond with information outside the pleadings, but the responding party must then comply with the procedural requirements relating to summary judgment motions in K.S.A. 60-256. Lambert v. Peterson, 309 K. 594, 439 P.3d 317 (2019).


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