1  Name of parties.  The party who files a lawsuit shall be called the plaintiff and the adverse party shall be called the defendant.

Comment

This section is nearly the same as K.S.A. 61-1702.

2.  Commencement of actions; limitation of actions. 
(a) A lawsuit filed under this act shall be deemed to be commenced at the time a petition is filed with the clerk of the district court if service of process is obtained within 120 days after the petition is filed, otherwise the lawsuit shall be deemed to be commenced at the time service of process is obtained.
(b) If the plaintiff seeks to obtain service of process by publication, service of process shall be obtained at the time of first publication.
(c)  If service of process or first publication purports to have been made but is later determined by a court to have been invalid due to any irregularity in form or procedure or any defect in making service, the lawsuit shall nevertheless be deemed to have been commenced when filed if valid service is obtained within the next 120 days after such determination.
(d)  An entry of appearance by the defendant shall have the same effect as service of process on the defendant.
(e)  The limitation of time for commencing lawsuits pursuant to this chapter shall be as provided in article 5 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, except where a different limitation is specifically provided by statute.

Comment

This is essentially the same as K.S.A. 61-1703 except the time limit specified in the new section is 120 days whereas under existing law it is 90 days with the right to apply for an additional 30 days.  The new section will eliminate the need to file a motion to apply for additional time.

3.  Pleadings and other papers allowed. 
(a) Pleadings.  Only the pleadings set forth in K.S.A. 60-207 shall be allowed in an action commenced pursuant to this chapter, but the only pleadings required are a petition and an answer.   Third-party practice in the manner prescribed by K.S.A. 60-214 shall be permitted.
(b) Petitions.  A petition shall state the claim or claims which the plaintiff has against the defendant.  It shall set forth the current address, phone number, fax phone number and e-mail address for the plaintiff.  If the plaintiff is not represented by an attorney, the petition shall be signed by the plaintiff under penalty of perjury.
(c)  Motions and other papers.  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 the particular grounds for the motion, shall set forth the relief or order sought, and shall contain a notice of when the motion is to be heard by the court.

Comment

The only required pleadings shall be a petition and an answer.  The answer is designed to be a simple statement by the defendant to inform the plaintiff what disputes the defendant has to the petition.  This section is essentially identical to K.S.A. 61-1706.

4.  Appearance and dispute by defendant.
(a)  A defendant shall either appear, in person or by counsel, at the time and date set forth in the summons or file on or before such date a written answer.  If the defendant appears and disputes the petition, the defendant shall file an answer not later than 10 days after the appearance date.  The defendant shall promptly send a copy of the answer after filing to the plaintiff's attorney or the plaintiff, if no attorney.  If the defendant is not represented by an attorney, the answer shall be signed by the defendant under penalty of perjury.
(b) The answer shall state the following:
(1)  what the dispute is;
(2)  any affirmative defenses the defendant has to the claim; and
(3)  the current address, phone number, fax phone number, and e-mail address for the defendant.
(c)  If the defendant does not file an answer, the defendant waives the right to present (1) any dispute to the claim or claims set forth in the petition or (2) any affirmative defenses to the same, and judgment may be taken against the defendant upon oral or written motion for judgment by the plaintiff.
(d) If the defendant asserts a counterclaim against the plaintiff in the answer, the plaintiff may file a reply disputing the defendant's counterclaim not later than 10 days after service of the defendant's answer.  The plaintiff's reply shall comply with the requirements set forth in paragraph 4(b) of this article.  If the plaintiff does not file a reply, the plaintiff waives the right to present any dispute to the defendant's counterclaim.
(e)  Affirmative defenses are those listed in subsection (c) of K.S.A. 60-208.
(f)  The date the defendant is required to appear as set forth in the summons may be continued by the court upon request of either party in such manner as the court shall prescribe.

Comment

Under existing law (K.S.A. 61-1708 ), the defendant may either appear or file an answer in response to the petition.  If the defendant appears, he/she need not, but may, file an answer.  Under the new section, the defendant must file a written answer or waive any defense to the petition. It is hoped that this requirement will expedite the litigation process and eliminate the need for court time when in fact there is no bonafide defense to a petition.

5.  Counterclaims and cross-claims. (a) Upon timely application of the plaintiff and in the discretion of the court, a defendant may be required to plead any counterclaim which such party has against the plaintiff, if it arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that the defendant shall not be required to plead any such claim if: (1) At the time the action was commenced the claim was the subject of another pending action; or (2) the plaintiff brought suit upon such plaintiff's claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the defendant is not pleading any other counterclaim. A defendant shall not be estopped from asserting in a subsequent action any claim which such defendant may have against the plaintiff, if such defendant is not required to plead such claim pursuant to this section. Except for subsections (a) and (k), the provisions of K.S.A. 60-213, and amendments thereto, relating to counterclaims and cross-claims, shall apply to proceedings pursuant to this chapter, subject to the provisions of K.S.A. 61-1720, and amendments thereto. 
(b) Notwithstanding the provisions of subsection (a), in an action involving a claim governed by K.S.A. 60-258a, and amendments thereto, a party shall state as a counterclaim any claim that party has against any opposing 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. 

Comment

This is essentially the same as K.S.A. 61-1709.

6.  Content and form of pleadings and other papers.  The content and form of all pleadings and other papers filed shall be set forth by rule of the supreme court of this state.

Comment

This is new.  The comparable section under existing law is K.S.A. 61-1707.  With the rapid development of technology in those areas which affect electronic filing, it was thought that the supreme court would prefer to have the content of forms within a rule which could be amended more quickly than the statute.

7.  Service and filing of pleadings and other papers.
(a)  The petition shall be served on the defendant in accordance with the provisions of article 3 of this Chapter.
(b)  All pleadings other than the petition, motions which cannot be heard ex-parte, notices, and orders which are required by their terms to be served, shall be served upon the party's attorney of record, if the party is represented by an attorney, or upon the party if not represented by an attorney, in the following manner:
(1) by delivering a copy;
(2) by mailing a copy by first class mail, certified mail or registered mail to the last known address;
(3) by sending or transmitting a copy by telefacsimile communication;
(4) by sending a copy by internet electronic mail; or
(5) if no address is known, by leaving a copy with the clerk of the court.
For the purposes of this subsection, delivering 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 complete upon mailing. Service by telefacsimile communication is complete upon receipt of a confirmation generated by the transmitting machine.  Service by internet electronic mail shall be as provided by rule of the supreme court of this state.  All such pleadings, motions, notices, and orders covered by this subsection shall be filed with the court either before service or within a reasonable time thereafter.
(c)  Filing with the court defined.  The filing of pleadings and other papers with the court as required or permitted by this act shall be done in accordance with rules of the supreme court.

Comment

This section deals with the service of court papers subsequent to service of the petition and summons.  Current law is found in K.S.A. 61-1705.  The new section adds first class mail, fax communication and electronic mail as permissible forms of service.

8.  Special Matters.  The provisions of K.S.A. 60-209, 60-210 and 60-211 shall apply to pleadings filed under this article.

Comment

This is presently covered in K.S.A. 61-1707 and there is no change.

9.  Time, computation and extension.  The provisions of K.S.A. 60-206, governing the computation and extension of time, shall govern actions pursuant to this chapter, except where provisions to the contrary are specifically included in this act.

Comment

This is the same as K.S.A. 61-1705.

10.  Application of chapter 60, when. Upon motion of any party, the court shall order that an action filed under this chapter, except an action filed pursuant to the small claims procedure act, shall thereafter be governed by the provisions of chapter 60 of the Kansas Statutes Annotated.  The party obtaining an order under this section shall pay any additional docket fee required had the action been filed under chapter 60 of the Kansas Statutes Annotated. 

Comment

This is the same as K.S.A. 61-1725.

11.  Claims beyond the scope of actions authorized by article 1, section 2.  (a) By plaintiff.  Whenever a plaintiff demands judgment beyond the scope of actions authorized by the provisions of article 1, section 2, the court shall either:  (1) Transfer the action to the chief judge for assignment and hearing pursuant to chapter 60 of the Kansas Statutes Annotated, assessing the increased docket fee to the plaintiff; or (2) allow the plaintiff to amend the pleadings and service of process to bring the demand for judgment within the scope of actions authorized by the provisions of article 1, section 2, assessing the costs accrued to the plaintiff.
(b) By defendant.  If a defendant asserts a counterclaim or cross-claim beyond the scope of this chapter, the case shall be referred by the chief judge for assignment and hearing pursuant to chapter 60 of the Kansas Statutes Annotated, assessing the increased docket fee to the defendant.

Comment

This is the same as K.S.A. 61-1720.

12. Adoption by reference of certain provisions of article 2 of chapter 60. The following provisions of article 2 of chapter 60 of the Kansas Statutes Annotated are hereby adopted by reference and made a part of this act as if fully set forth herein, insofar as such provisions are not inconsistent or in conflict with the provisions of this act: 
(a)  K.S.A. 60-215, relating to amended and supplemental pleadings, except that the time for filing amended pleadings and for responding thereto shall be 10 instead of 20 days; 
(b)  K.S.A. 60-217, relating to capacity of parties; 
(c)  K.S.A. 60-218, providing for joinder of claims and remedies, K.S.A. 60-219 and 60-220, providing for joinder of parties, and K.S.A. 60-221, relating to misjoinder of parties and claims; 
(d)  K.S.A. 60-224, relating to intervention, and K.S.A. 60-225, providing for substitution of parties; 
(e)  K.S.A. 60-234, relating to production of documents and things for inspection; 
(f)  K.S.A. 60-241, providing for dismissal of actions; 
(g)  K.S.A. 60-244, providing for proof of records; 
(h)  K.S.A. 60-256, relating to summary judgment; 
(i)  K.S.A. 60-259 and 60-260, concerning new trial and relief from judgment or order, respectively; 
(j)  K.S.A. 60-261 and 60-263, relating respectively to harmless error and disability of a judge; and 
(k)  K.S.A. 60-264, relating to process in behalf of and against persons not parties. 

Comment

This is identical to K.S.A. 61-1725.