Session Law

Identifying Information:L. 2002 ch. 198
Other Identifying Information:2002 House Bill 2771
Tax Type:Other
Brief Description:An Act concerning civil procedure; concerning garnishment; relating to methods of service of process; concerning telefacsimile communications and internet electronic mail; amending K.S.A. 2001 Supp. 60-205 and 61-3003 and repealing the existing sections; also repealing K.S.A. 60-714, 60-715, 60-716 and 60-720 and K.S.A. 2001 Supp. 60-717, 60-718, 60-726 and 60-728 and Forms No. 27 and 28 in the appendix of forms following K.S.A. 60-269.
Keywords:


Body:

CHAPTER 198

HOUSE BILL No. 2771


An Act concerning civil procedure; concerning garnishment; relating to methods of service

of process; concerning telefacsimile communications and internet electronic mail;

amending K.S.A. 2001 Supp. 60-205 and 61-3003 and repealing the existing sections;

also repealing K.S.A. 60-714, 60-715, 60-716 and 60-720 and K.S.A. 2001 Supp. 60-717,

60-718, 60-726 and 60-728 and Forms No. 27 and 28 in the appendix of forms following


K.S.A. 60-269.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2001 Supp. 61-3003 is hereby amended to read as

follows: 61-3003. (a) Methods of service of process within this state,

except service by publication, are described in this section. Service of

process outside the state shall be made in substantial compliance with the

applicable provisions of K.S.A. 60-308, and amendments thereto.

(b) Who serves process. The sheriff of the county in which the action

is filed shall serve any process by any method authorized by this section,

or as otherwise provided by law, unless a party, either personally or

through an attorney, elects to undertake responsibility for service and so

notifies the clerk.

(c) Service by return receipt delivery.

(1) Service of process by return receipt delivery shall include service

effected by certified mail, priority mail, commercial courier service, over-

night delivery service, or other reliable personal delivery service to the

party addressed, in each instance evidenced by a written or electronic

receipt showing to whom delivered, date of delivery, address where de-

livered, and person or entity effecting delivery.

(2) The sheriff, party or party's attorney shall cause a copy of the

process and petition or other document to be placed in a sealed envelope

addressed to the person to be served in accordance with K.S.A. 2001

Supp. 61-3004, and amendments thereto, with postage or other delivery

fees prepaid, and the sealed envelope placed in the custody of the person

or entity effecting delivery.

(3) Service of process shall be considered obtained under K.S.A. 2001

Supp. 61-2902, and amendments thereto, upon the delivery of the sealed

envelope.

(4) After service and return of the receipt, the sheriff, party, or party's

attorney shall execute a return on service stating the nature of the process,

to whom delivered, the date of delivery, the address where delivered, and

the person or entity effecting delivery. The original return of service shall

be filed with the clerk, along with a copy of the return receipt evidencing

such delivery.

(5) If the sealed envelope is returned with an endorsement showing

refusal to accept delivery, the sheriff, party or the party's attorney may

send a copy of the process and petition or other document by first-class

mail addressed to the party to be served, or may elect other methods of

service. If mailed, service shall be considered obtained three days after

the mailing by first-class mail, postage prepaid, which shall be evidenced

by a certificate of service filed with the clerk. If the unopened envelope

sent first-class mail is returned as undelivered for any reason, the sheriff,

party or party's attorney shall file an amended certificate of service with

the clerk indicating nondelivery, and service by such mailing shall not be

considered obtained. Mere failure to claim return receipt delivery is not

refusal of service within the meaning of this subsection.

(d) Personal and residence service.

(1) The party may file a written request with the clerk for personal

or residence service. Personal service shall be made by delivering or of-

fering to deliver a copy of the process and accompanying documents to

the person to be served. Residence service shall be made by leaving a

copy of the process and petition, or other document to be served, at the

dwelling house or usual place of abode of the person to be served with

some person of suitable age and discretion residing therein. If service

cannot be made upon an individual, other than a minor or a disabled

person, by personal or residence service, service may be made by leaving

a copy of the process and petition, or other document to be served, at

the defendant's dwelling house or usual place of abode and mailing a

notice that such copy has been left at such house or place of abode to the

individual by first-class mail.

(2) When process is to be served under this subsection, the clerk of

the court shall deliver the process and sufficient copies of the process and

petition, or other document to be served, to the sheriff of the county

where the process is to be served or, if requested, to a person appointed

to serve process or to the plaintiff's attorney.

(3) Service, levy and execution of all process under this subsection,

including, but not limited to, writs of execution, orders of attachment,

replevin orders, orders for delivery, writs of restitution and writs of assis-

tance, shall be made by a sheriff within the sheriff's county, by the sheriff's

deputy, by an attorney admitted to the practice of law before the supreme

court of Kansas or by some person appointed as a process server by a

judge or clerk of the district court, except that a subpoena may also be

served by any other person who is not a party and is not less than 18 years

of age. Process servers shall be appointed freely and may be authorized

either to serve process in a single case or in cases generally during a fixed

period of time. A process server or an authorized attorney may make the

service anywhere in or out of the state and shall be allowed the fees

prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and

such other fees and costs as the court shall allow. All persons authorized

under this subsection to serve, levy and execute process shall be consid-

ered an ``officer'' as used in K.S.A. 60-706 and 60-2401, and amendments

thereto.

(4) In all cases when the person to be served, or an agent authorized

by the person to accept service of process, refuses to receive copies

thereof, the offer of the duly authorized process server to deliver copies

thereof, and the refusal, shall be a sufficient service of the process.

(e) Publication service. Service of process by publication may be

made pursuant to the provisions of K.S.A. 60-307, and amendments

thereto, which are not inconsistent or in conflict with this act.

(f) Acknowledgment or appearance. An acknowledgment of service

on the summons is equivalent to service. The voluntary appearance by a

defendant is equivalent to service as of the date of appearance.

(g) In addition to other methods listed in this section, the person

serving process may serve a garnishment process in any of the following

methods:

(1) First class mail. Process may be sent to a person by first-class mail

by placing a copy of the process and petition or other document to be

served in an envelope addressed to the person to be served in accordance

with K.S.A. 2001 Supp. 61-3004, and amendments thereto, at such per-

son's last known address. The envelope used for such service shall be

addressed to the person in accordance with K.S.A. 2001 Supp. 61-3004,

and amendments thereto, and shall contain adequate postage. Such en-

velope shall be sealed and placed in the United States mail. Service by

first-class mail shall be complete when the envelope is placed in the mail

unless returned undelivered. Service shall be considered obtained upon

the mailing by first-class mail unless returned undelivered.

(2) Telefacsimile communication. Process may be sent to a person by

telefacsimile communication at a telefacsimile number designated by the

garnishee. Service is complete upon receipt of a confirmation generated

by the transmitting machine.

(3) Internet electronic mail. Process may be sent to a person by in-

ternet electronic mail at an internet electronic mail address designated

by the garnishee and as provided in the rules to be adopted hereunder

by the supreme court. Service is complete upon receipt of a reply gen-

erated by the garnishee.

New Sec. 2. Garnishment is a procedure whereby the wages, money

or intangible property of a person can be seized or attached pursuant to

an order of garnishment issued by the court under the conditions set forth

in the order.

New Sec. 3. An order of garnishment before judgment may be ob-

tained only upon order of a judge of the district court pursuant to the

procedure to obtain an order of attachment. No order of garnishment

may be obtained before judgment where the property sought to be at-

tached is wages earned by the person being garnished.

New Sec. 4. (a) As an aid to the collection of a judgment, an order

of garnishment may be obtained at any time after 10 days following judg-

ment. There is no requirement that an execution first be issued and re-

turned unsatisfied.

(b) The party requesting a garnishment shall file a request in an in-

dividual case or by a master request covering more than one case asking

the court to issue an order of garnishment. The request shall designate

whether the order of garnishment is to be issued to attach earnings or to

attach other property of the judgment debtor. If such party seeks to attach

earnings of the judgment debtor to enforce:

(1) An order of any court for the support of any person;

(2) an order of any court of bankruptcy under chapter 13 of the

United States bankruptcy code; or

(3) a debt due for any state or federal tax, the direction of the party

shall so indicate.

No bond is required for an order of garnishment issued after judgment.

New Sec. 5. This section shall apply if the garnishment is to attach

intangible property other than earnings of the judgment debtor.

(a) The order of garnishment shall be substantially in compliance with

the forms set forth by the judicial council.

(b) The order of garnishment and the appropriate form for the gar-

nishee's answer shall be served on the garnishee in the same manner as

process is to be served pursuant to K.S.A. 60-301 through 60-313, and

amendments thereto, except that the garnishee may be served by any

means provided under K.S.A. 60-301 through 60-313, and amendments

thereto, at the garnishee's business or office location and this shall be

considered proper service. A copy of the answer form shall be served if

the garnishment order is not served electronically. If the order is served

prior to a judgment, the order shall also be served on the judgment

debtor, if the judgment debtor can be found, except that the order shall

not be served on the judgment debtor until after service has been made

on the garnishee. Failure to serve the judgment debtor shall not relieve

the garnishee from liability under the order.

(c) The order of garnishment shall have the effect of attaching:

(1) All intangible property, funds, credits or other indebtedness be-

longing to or owing the judgment debtor, other than earnings, which is

in the possession or under the control of the garnishee, and all such

credits and indebtedness due from the garnishee to the judgment debtor

at the time of service of the order; and

(2) all such personal property coming into the possession or control

of the garnishee and belonging to the judgment debtor, and all such

credits and indebtedness becoming due to the judgment debtor between

the time the order is served on the garnishee and the time the garnishee

makes the answer of the garnishee. Where the garnishee is an executor

or administrator of an estate in which the judgment debtor is or may

become a legatee or distributee thereof, the order of garnishment shall

have the effect of attaching and creating a first and prior lien upon any

property or funds of such estate to which the judgment debtor is entitled

upon distribution of the estate, and such garnishee shall be prohibited

from paying over to the judgment debtor any of such property or funds

until so ordered by the court from which the order of garnishment was

issued.

(d) The garnishee, without prior agreement, may withhold and retain

to defray the garnishee's costs, an administrative fee of $10 for each order

of garnishment that attaches funds, credits or indebtedness. Such admin-

istrative fee shall be in addition to the amount required to be withheld

under the order for garnishment, except that if the amount required to

be withheld under the order for garnishment is greater than the amount

of the funds, credits or indebtedness held by the garnishee, the fee shall

be deducted from the amount withheld.

New Sec. 6. (a) The written direction of a party seeking an order of

garnishment attaching funds, credits or indebtedness held by a bank, sav-

ings and loan association, credit union or finance company shall state the

amount to be withheld, which shall be 110% of the amount of the judg-

ment creditor's claim, in the case of prejudgment garnishment, or 110%

of the amount of the current balance due under the judgment, in the

case of postjudgment garnishment. The garnishee, without prior agree-

ment, may withhold and retain to defray the garnishee's costs, an admin-

istrative fee of $10 for each order of garnishment that attaches funds,

credits or indebtedness. Such administrative fee shall be in addition to

the amount required to be withheld under the order for garnishment,

except that if the amount required to be withheld under the order for

garnishment is greater than the amount of the funds, credits or indebt-

edness held by a bank, savings and loan association, credit union or fi-

nance company, the fee shall be deducted from the amount withheld.

(b) All orders of garnishment issued in this state for the purpose of

attaching funds, credits or indebtedness held by a bank, savings and loan

association, credit union or finance company shall include the judgment

debtor's address and tax identification number, if known, and shall specify

the amount of funds, credits or indebtedness to be withheld by the gar-

nishee, which shall be 110% of the amount of the judgment creditor's

claim or 110% of the amount of the current balance due under the judg-

ment, as stated in the written direction of the party seeking the order.

(c) The forms provided by law for an order of garnishment attaching

funds, credits or indebtedness held by a bank, savings and loan associa-

tion, credit union or finance company shall include the following state-

ment:

``If you hold any funds, credits or indebtedness belonging to or owing the judgment

debtor, the amount to be withheld by you pursuant to this order of garnishment is not to

exceed $________________.''

(amount stated in direction)

(d) (1) The forms provided by law for the answer to an order of

garnishment attaching funds, credits or indebtedness held by a bank, sav-

ings and loan association, credit union or finance company shall include

the following statement:

``The amount of the funds, credits or indebtedness belonging to or owing the judgment

debtor which I shall hold shall not exceed $________________.''

(amount stated in order)

(2) The answer shall further include information that such account is

owned in joint tenancy with one or more individuals who are not subject

to the garnishment, if applicable.

(e) If an order of garnishment attaches funds, credits or indebtedness

held by a bank, savings and loan association, credit union or finance com-

pany and the garnishee holds funds or credits or is indebted to the judg-

ment debtor in two or more accounts, the garnishee may withhold pay-

ment of the amount attached from any one or more of such accounts.

(f) If an order of garnishment attaches funds, credits or indebtedness

held by a bank, savings and loan association, credit union or finance com-

pany and the garnishee holds funds or credits or is indebted to the judg-

ment debtor in an account which judgment debtor owns in joint tenancy

with one or more individuals who are not subject to the garnishment, the

garnishee shall withhold the entire amount sought by the garnishment.

Neither the garnishor nor the garnishee shall be liable to the joint owners

if the ownership of the funds is later proven not to be the judgment

debtor's.

(g) No party shall seek an order of garnishment attaching funds, cred-

its or indebtedness held by a bank, savings and loan association, savings

bank, credit union or finance company except on good faith belief of the

party seeking garnishment that the party to be served with the garnish-

ment order has, or will have, assets of the judgment debtor. Except as

provided further, not more than two garnishments shall be issued by a

party seeking an order of garnishment applicable to the same claim or

claims and against the same judgment debtor in any 30-day period. A

judge may order an exception to this subsection in any case in which the

party seeking the garnishment shall in person or by attorney: (1) Certify

that the garnishment is not for the purpose of harassment of the debtor,

and (2) state facts demonstrating to the satisfaction of the judge that there

is reason to believe that the garnishee has property or credits of the debtor

which are not exempt from execution.

New Sec. 7. This section shall apply if the garnishment is to attach

earnings of the judgment debtor.

(a) The order of garnishment shall be substantially in compliance with

the forms set forth by the judicial council.

(b) The order of garnishment and the appropriate form for the gar-

nishee's answer shall be served on the garnishee in the same manner as

process is to be served pursuant to K.S.A. 60-301 through 60-313, and

amendments thereto, except that the garnishee may be served by any

means provided under K.S.A. 60-301 through 60-313, and amendments

thereto, at the garnishee's business or office location and this shall be

considered proper service. A copy of the answer form shall be served if

the garnishment order is not served electronically. If the party having

requested the garnishment is notified by the garnishee that the judgment

debtor has never been employed by the garnishee or the judgment

debtor's employment has been terminated, the party seeking the garnish-

ment shall forthwith file a release with the clerk of the court of such

garnishment.

(c) The order of garnishment shall have the effect of attaching the

nonexempt portion of the judgment debtor's earnings for all pay periods

which end while the order is in effect. The order shall remain in effect

until either of the following occur, whichever is sooner: (1) The judgment

is paid; or (2) the garnishment is released. The party for whom the gar-

nishment is issued shall file a release with the clerk of the court upon

satisfaction of the judgment and provide a copy thereof to the defendant

and garnishee. Nonexempt earnings are earnings which are not exempt

from wage garnishment pursuant to K.S.A. 60-2310, and amendments

thereto. Computation of the nonexempt portion of the judgment debtor's

wages for the pay period or periods covered by the order shall be made

in accordance with the directions accompanying the garnishee's answer

form, and a written explanation of the garnishee's computations shall be

furnished to the judgment debtor with each paycheck from which earn-

ings are withheld pursuant to the order of garnishment. The order of

garnishment shall also constitute an order of the court directing the gar-

nishee to pay to the judgment creditor all earnings which are to be with-

held by the garnishee under the order of garnishment as more particularly

provided in the answer of the garnishee.

(d) From income due the judgment debtor, the garnishee may with-

hold and retain to defray the garnishee's costs, an administrative fee of

$10 for each pay period for which income is withheld, not to exceed $20

for each 30 day period for which income is withheld, whichever is less.

Such administrative fee shall be in addition to the amount required to be

withheld under the order for garnishment. If the addition of this fee

causes the total amount withheld to exceed the restrictions imposed by

subsection (b) of K.S.A. 60-2310, and amendments thereto, the fee shall

be deducted from the amount withheld.

(e) For any continuing garnishment, the party having requested the

garnishment shall maintain an accounting and record of the judgment

reflecting thereon all garnishment proceeds received and applied, all in-

terest accrued thereon, and any and all credits applied in satisfaction

thereof, and the remaining unsatisfied balance of such judgment. The

party requesting the garnishment shall produce a copy of such accounting

and record upon request of the court.

New Sec. 8. (a) Immediately following the time the order of gar-

nishment is served on the garnishee, the party seeking the garnishment

shall send a notice to the judgment debtor in any reasonable manner,

notifying the judgment debtor:

(1) That a garnishment order has been issued against the judgment

debtor and the effect of such order;

(2) of the judgment debtor's right to assert any claim of exemption

allowed under the law with respect to a garnishment against property

other than earnings or of the judgment debtor's right to object to the

calculation of exempt and nonexempt earnings with respect to a garnish-

ment against the earnings of the debtor; and

(3) of the judgment debtor's right to a hearing on such claim or ob-

jection. The notice shall be substantially in compliance with the form set

forth by the judicial council, and shall contain a description of the ex-

emptions that are applicable to garnishments and the procedure by which

the judgment debtor can assert any claim of exemption.

(b) If the judgment debtor requests a hearing to assert any claim of

exemption, the request shall be filed no later than 10 days following the

date the notice is served on the judgment debtor. If a hearing is re-

quested, the hearing shall be held by the court no sooner than five days

nor later than 10 days after the request is filed. At the time the request

for hearing is filed, the judgment debtor shall obtain from the clerk or

court the date and time for the hearing which shall be noted on the

request form. Immediately after the request for hearing is filed, the judg-

ment debtor shall hand-deliver to the party seeking the garnishment or

such party's attorney, if the party is represented by an attorney, or mail

to the party seeking the garnishment or such party's attorney, if the party

is represented by an attorney, by first-class mail at the party seeking the

garnishment or such party's attorney's last known address, a copy of the

request for hearing.

(c) If a hearing is held, the judgment debtor shall have the burden

of proof to show that some or all of the property subject to the garnish-

ment is exempt, and the court shall enter an order determining the ex-

emption and such other order or orders as is appropriate.

New Sec. 9. This section shall apply if the garnishment is to attach

intangible property other than earnings of the judgment debtor.

(a) The answer of the garnishee shall be substantially in compliance

with the forms set forth by the judicial council.

(b) Within 10 days after service upon a garnishee of an order of gar-

nishment the garnishee shall complete the answer in accordance with the

instructions accompanying the answer form stating the facts with respect

to the demands of the order and file the completed answer with the clerk

of the court. The clerk shall cause a copy of the answer to be mailed

promptly to the judgment creditor and judgment debtor at the addresses

listed on the answer form. The answer shall be supported by unsworn

declaration in the manner set forth on the answer form.

New Sec. 10. This section shall apply if the garnishment is to attach

earnings of the judgment debtor.

(a) The answer of the garnishee shall be substantially in compliance

with the forms set forth by the judicial council.

(b) Within 15 days following the end of each month, the garnishee

shall complete the answer in accordance with the instructions accompa-

nying the answer form for all pay periods ending during the month and

send the completed answer to each judgment creditor and judgment

debtor at the addresses listed on the answer form. The garnishee shall

designate on the answer in the space provided on the answer form the

name and case number for each judgment creditor who has a garnishment

order in effect for the same debtor at the end of each month and the

amount that is due each judgment creditor under the garnishment in

accordance with the instructions accompanying the answer form. Only

one answer needs to be completed for each judgment debtor by the gar-

nishee and the garnishee may duplicate the completed answer in any

manner the garnishee desires for distribution to each judgment creditor

and judgment debtor. The answer shall be supported by unsworn dec-

laration in the manner set forth on the answer form.

(c) If there are other liens against the judgment debtor's earnings

which by law have priority over garnishments, the garnishee shall so in-

dicate on the answer. In such event, the garnishment shall remain in

effect but no earnings of the debtor shall be withheld under the garnish-

ment order unless and until all of the other liens having priority are re-

leased or satisfied or the earnings being withheld under all of such liens

are less than the amount which is exempt under K.S.A. 60-2310, and

amendments thereto.

New Sec. 11. (a) No later than 10 days after the garnishee makes the

answer and the clerk or the garnishee sends it to the judgment creditor

and judgment debtor, the judgment creditor or judgment debtor, or both,

may file a reply disputing any statement in the answer of the garnishee.

A copy of the reply shall be sent by the party filing same to the other

party, to any other judgment creditors affected and to the garnishee. The

party filing the reply shall notify the court and schedule a hearing on the

reply to be held within 30 days after filing of the reply.

(b) At the hearing, the court shall determine and rule on all issues

related to the reply. The burden of proof shall be upon the party filing

the reply to disprove the statements of the answer, except that the gar-

nishee shall have the burden of proving offsets or indebtedness claimed

to be due from the judgment debtor to the garnishee, or liens asserted

by the garnishee against personal property of the judgment debtor. The

provisions of K.S.A. 60-719, and amendments thereto, relating to offsets

claimed by the garnishee shall be applicable to lawsuits filed pursuant to

the code of civil procedure for limited actions.

New Sec. 12. If the garnishment is to attach property other than

earnings of the judgment debtor, after 10 days following receipt of the

answer of the garnishee by the court, and no reply to the answer has been

filed, the court shall direct the garnishee to pay to the court such amount

that the garnishee is holding as indicated by the answer, or such lesser

amount if the circumstances warrant. If the garnishee is holding property

other than money, the provisions of K.S.A. 60-701 et seq., and amend-

ments thereto, relating to attachment shall be applicable. If through gar-

nishment, the claim is overpaid to the court, the court shall promptly

refund to the judgment debtor any such overpayment.

New Sec. 13. This section shall apply if the garnishment is to attach

earnings of the judgment debtor. If no reply is made to the answer of

garnishee within 10 days following the date the garnishee has completed

the answer, the garnishee shall promptly thereafter pay the earnings with-

held as indicated on the answer to all judgment creditors designated on

the answer in the amount due each as indicated on the answer, unless

the garnishee receives prior to such payment an order of the court to the

contrary. If any judgment creditor receives more than they are entitled

to, that judgment creditor shall promptly pay the excess amount pro-rata

to the other judgment creditors designated on the answer, or if no such

other judgment creditors are designated, the judgment creditor shall

promptly pay the excess amount to the judgment debtor.

New Sec. 14. If the garnishee fails to answer within the time and

manner specified in the order of garnishment, the judgment creditor may

file a motion and shall send a copy of the motion to the garnishee and

the judgment debtor in the manner allowed under K.S.A. 60-205, and

amendments thereto. At the hearing on the motion, the court may grant

judgment against the garnishee for the amount of the judgment creditor's

judgment or claim against the judgment debtor or for such other amount

as the court deems reasonable and proper, and for the expenses and

attorney fees of the judgment creditor. If the claim of the plaintiff has

not been reduced to judgment, the liability of the garnishee shall be

limited to the judgment ultimately rendered against the judgment debtor.

New Sec. 15. If after the time the garnishee is to make payment of

funds or property held under a garnishment, the garnishee fails or refuses

to pay or deliver property to the judgment creditor, the judgment creditor

may file a motion and shall send a copy of the motion to the garnishee

and the judgment debtor in the manner allowed under K.S.A. 60-205,

and amendments thereto. At the hearing on the motion, the court may

find the garnishee in contempt and punish the garnishee by a fine or may

enter judgment against the garnishee for such amount as the court deems

reasonable and proper, including the expenses and attorney fees of the

judgment creditor.

New Sec. 16. The forms set forth by the judicial council are sufficient

under this act and are intended to indicate the simplicity and brevity of

statement which this act contemplates.

New Sec. 17. The provisions of sections 2 through 17, and amend-

ments thereto, shall be part of and supplemental to the code of civil

procedure.

Sec. 18. K.S.A. 2001 Supp. 60-205 is hereby amended to read as

follows: 60-205. The method of service and filing of pleadings and other

papers as provided in this section shall constitute sufficient service and

filing in all civil actions and special proceedings but they shall be alter-

native to, and not in restriction of, different methods specifically provided

by law.

(a) When required. Except as otherwise provided in this chapter, the

following shall be served upon each of the parties: Every order required

by its terms to be served; every pleading subsequent to the original pe-

tition, unless the court otherwise orders because of numerous defendants;

every paper relating to disclosure of expert testimony or discovery re-

quired to be served upon a party, unless the court otherwise orders; every

written motion other than one which may be heard ex parte; and every

written notice, appearance, demand, offer of judgment, designation of

record on appeal and similar paper. No service need be made on parties

in default for failure to appear except that pleadings asserting new or

additional claims for relief against them shall be served upon them in the

manner provided for service of summons in article 3 of chapter 60.

(b) How made. Whenever under this article service is required or

permitted to be made upon a party represented by an attorney the service

shall be made upon the attorney unless service upon the party is ordered

by the court. Service upon the attorney or upon a party shall be made by:

(1) Delivering a copy to the attorney or a party: (2) mailing it to the

attorney or a party at the last known address; (3) if no address is known,

by leaving it with the clerk of the court; or (4) sending or transmitting to

such attorney a copy by telefacsimile communication. For the purposes

of this subsection, ``Delivery of a copy'' means: Handing it to the attorney

or to the party; leaving it at the attorney's or party's office with the clerk

or other person in charge thereof or, if there is no one in charge, leaving

it in a conspicuous place therein; or, if the attorney's or party's office is

closed or the person to be served has no office, leaving it at the attorney's

or party's dwelling house or usual place of abode with some person of

suitable age and discretion then residing therein. Service by mail is com-

plete upon mailing. Service by telefacsimile communication is complete

upon receipt of a confirmation generated by the transmitting machine.

(c) Numerous defendants. In any action in which there are unusually

large numbers of defendants, the court, upon motion or of its own initia-

tive, may order that services of the pleadings of the defendants and replies

thereto need not be made as between the defendants and that any cross-

claim, counterclaim or matter constituting an avoidance or affirmative

defense contained therein shall be deemed to be denied or avoided by

all other parties and that the filing of any such pleading and service

thereof upon the plaintiff constitutes due notice of it to the parties. A

copy of every such order shall be served upon the parties in such manner

and form as the court directs.

(d) Filing. (1) Interrogatories, depositions other than those taken un-

der K.S.A. 60-227 and amendments thereto, disclosures of expert testi-

mony under K.S.A. 60-226 and amendments thereto and discovery re-

quests or responses under K.S.A. 60-234 or 60-236, and amendments

thereto, shall not be filed except on order of the court or until used in a

trial or hearing, at which time the documents shall be filed.

(2) A party serving discovery requests or responses under K.S.A. 60-

233, 60-234 or 60-236, and amendments thereto, or disclosures of expert

testimony under K.S.A. 60-226 and amendments thereto, shall file with

the court a certificate stating what document was served, when and upon

whom.

(3) All other papers filed after the petition and required to be served

upon a party, shall be filed with the court either before service or within

a reasonable time thereafter.

(e) Filing with the court defined. The filing of pleadings and other

papers with the court as required by this article shall be made by filing

them with the clerk of the court. 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.

Sec. 19. K.S.A. 60-714, 60-715, 60-716 and 60-720 and K.S.A. 2001

Supp. 60-205, 60-717, 60-718, 60-726, 60-728 and 61-3003 and Forms

No. 27 and 28 in the appendix of forms following K.S.A. 60-269 are

hereby repealed.

Sec. 20. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 29, 2002.


__________




Date Composed: 10/10/2002 Date Modified: 10/10/2002