*fn1 ,MARY BURNHAM, PLAINTIFF - APPELLANT, v. HUMPHREY HOSPITALITY REIT TRUST, INC., DOING BUSINESS AS HUMPHREY ASSOCIATES INCORPORATED, DOING BUSINESS AS SUPER 8 MOTEL; HUMPHREY HOSPITALITY LIMITED PARTNERSHIP; HUMPHREY HOSPITALITY MANAGEMENT INC..; HUMPHREY HOSPITALITY TRUST INC., DEFENDANTS - APPELLEES." />

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Burnham v. Humphrey Hospitality Reit Trust

March 4, 2005

MARY BURNHAM, PLAINTIFF - APPELLANT,
v.
HUMPHREY HOSPITALITY REIT TRUST, INC., DOING BUSINESS AS HUMPHREY ASSOCIATES INCORPORATED, DOING BUSINESS AS SUPER 8 MOTEL; HUMPHREY HOSPITALITY LIMITED PARTNERSHIP; HUMPHREY HOSPITALITY MANAGEMENT INC..; HUMPHREY HOSPITALITY TRUST INC., DEFENDANTS - APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D. Ct. No. 03-CV-1101-MLB) (D. Kan)

Before Tacha, Chief Circuit Judge, Henry, and Hartz, Circuit Judges.

PUBLISH - Opinion ordered published March 30, 2005

Plaintiff-Appellant Mary Burnham was injured in a shower at the Super 8 Motel in Park City, Kansas. Defendants-Appellees Humphrey Hospitality Trust, Inc., et al., moved to dismiss, arguing that the statute of limitations for negligence barred the suit. The District Court granted the Defendants' motion to dismiss. Ms. Burnham timely appeals, claiming that under Kansas law she had commenced this suit prior to the running of the statute of limitations for a negligence claim or alternatively that her complaint sounds in contract as well as tort and therefore the statute of limitations for a contract claim should apply. Defendants moved this Court to dismiss the appeal for the untimely filing of Ms. Burnham's opening brief. We take jurisdiction under 28 U.S.C. § 1291, DENY Defendants' motion to dismiss the appeal, AFFIRM the District Court's ruling, and ORDER Ms. Burnham's counsel, John Mac Hays, to SHOW CAUSE why we should not sanction him for making "a false statement of material fact . . . to a tribunal." Kan. Sup. Ct. R. 226, R. Prof. Conduct 3.3(a)(1).

I. BACKGROUND

This case arises under diversity jurisdiction alleging a Kansas common law cause of action. See 28 U.S.C. § 1332. On March 29, 2001, Ms. Burnham was injured when a handrail *fn2 in a shower at the Super 8 Motel collapsed. As early as November 9, 2001, Ms. Burnham's counsel, John Mac Hays, contacted the Defendants' insurance carrier, Wausau Insurance Company, to inquire about reaching an insurance settlement. R. at 50. On February 8, 2002, Wausau wrote Mr. Hays and informed him that it would only provide a $5,000 supplemental medical payment. R. at 52.

Ms. Burnham apparently considered this offer unacceptable because she chose to bring suit against Defendants. Ms. Burnham filed her complaint in the District of Kansas on March 19, 2003. This original complaint incorrectly identified the defendant as "Humphrey Associates Incorporated, d/b/a Super 8 Motel." R. at 44. Mr. Hays relied upon this name because during his correspondence with Wausau he referred to the Defendants in this manner. R. at 47-48.

In an affidavit, Mr. Hays avers that after filing the complaint he discovered that neither "Humphrey Associates Incorporated" nor "Super 8 Motel" were registered entities with the Kansas Secretary of State. R. at 48. He further claims that he contacted the Park City Motel 8 and inquired as to its authorized agent to receive service. Id. The employee at the Motel 8 did not know who the appropriate agent was. Id.

At this point, Mr. Hays could have rendered service of process under Kan. Stat. Ann. § 60-304(f), which allows service of the Secretary of State in such instances. Instead of serving the Secretary of State, Mr. Hays alleges that on March 28, 2003 he mailed a copy of the complaint and summons via first class mail to "the proprietor" of the Super 8 Motel in Park City. R. at 48, 54. Mr. Hays does not have a return receipt because he failed to use certified mail.

The Defendants contend they never received the March 28, 2003 letter or the accompanying complaint and summons. Although Mr. Hays claims to have sent a summons with the complaint, we note that the District Court's docket shows that the first issuance of a summons in this case did not occur until July 15, 2003--some 109 days after a summons was allegedly mailed to the Defendants. R. at 2-3. Further, the only summons copies included in the record are copies of the July 15, 2003 summons. R. at 13, 15, 17, 19.

Nonetheless, Ms. Burnham filed an amended complaint listing the Defendants by their appropriate names on July 15, 2003. The Defendants were properly served with a copy of the amended complaint and summons on that date. The Defendants responded by filing a motion to dismiss. See Fed. R. Civ. P. 12(b)(6).

In their motion, the Defendants argued that Ms. Burnham's claim sounded in negligence and was subject to a two-year statute of limitations. See Kan. Stat. Ann. § 60-513(a)(4). Because Ms. Burnham was injured on March 29, 2001, the Defendants argued that the statute ran on March 29, 2003. The Defendants conceded that Ms. Burnham's original complaint, which was filed on March 19, 2003, was timely. Nevertheless, they argued that March 19, 2003 is not the commencement date for statute of limitations purposes because they were not adequately served until July 15, 2003. See Kan. Stat. Ann. § 60-203(a). Ms. Burnham replied that the March 28, 2003 letter and accompanying complaint and summons substantially satisfied the Kansas service of process requirements. See Kan. Stat. Ann. § 60-204. She further argued that, although the original complaint misnamed the Defendants, her July 15, 2003 amended complaint related back to the original complaint. See Fed. R. Civ. P. 15(c). The District Court granted the Defendants' motion and dismissed the case.

Ms. Burnham then filed a timely notice of appeal. Ironically for a statute of limitations case, Mr. Hays did not timely file the appellant's opening brief in this Court. See Fed. R. App. P. 31(a)(1); 10th Cir. R. 31.1(A)(1). In fact, the brief was filed over two months late. As a result, the Defendants moved this Court to dismiss Ms. Burnham's appeal. See Fed. R. App. P. 31(c).

Ms. Burnham's opening brief was eventually filed. She renews her argument that her March 28, 2003 letter substantially complied with service of process under Kansas law and that her July 15, 2003 amended complaint relates back. She also argues that the District Court inappropriately considered facts outside of those alleged in the complaint in its Rule 12(b)(6) ruling. Finally, for the first time on appeal, she argues that her complaint sounds in contract, thereby garnering a longer statute of ...


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