NOT DESIGNATED FOR PUBLICATION
No. 123,997
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DEREK O. CID,
Appellant/Cross-appellee,
v.
DENNIS P. BUTLER, as Director of the Riley County Police Department,
and RILEY COUNTY LAW ENFORCEMENT AGENCY BOARD,
Appellees/Cross-appellants.
MEMORANDUM OPINION
Appeal from Riley District Court; KENDRA LEWISON, judge. Opinion filed September 9, 2022.
Affirmed in part, reversed in part, and remanded with directions.
Theodore J. Lickteig, of Lickteig Law Firm, LLC, of Lenexa, for appellant/cross-appellee.
David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, for appellees/cross-
appellants.
Before MALONE, P.J., SCHROEDER and HURST, JJ.
PER CURIAM: Derek O. Cid sought damages from Dennis P. Butler, as the
Director of the Riley County Policy Department (the "RCPD"), and the Riley County
Law Enforcement Agency Board (the "Law Board") for wrongful termination of
employment, but the district court dismissed his claims, finding them barred by the
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doctrine of res judicata. Cid appeals, arguing that the Kansas Supreme Court's decision in
Herington v. City of Wichita, 314 Kan. 447, 500 P.3d 1168 (2021)—decided during the
pendency of his direct appeal—requires this court to reverse the district court's dismissal.
The Appellees cross-appealed, arguing that the district court erred in finding Cid's
petition was timely commenced against the Law Board. The district court correctly found
Cid's petition was timely commenced, but incorrectly dismissed Cid's claims based on res
judicata. This court affirms in part, reverses in part, and remands with directions.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts in this case are primarily procedural, and this court will not
dwell on the underlying facts of Cid's wrongful discharge claim. Cid began working for
the RCPD in January 2012 as a law enforcement officer and after some internal disputes,
he resigned on July 28, 2016. Cid claims his resignation amounted to constructive
discharge in retaliation for his failure to enforce a policy that he believed violated the
law. On February 23, 2018, Cid filed a federal lawsuit in the United States District Court
for the District of Kansas against the RCPD, the Law Board, the Riley County Board of
Commissioners, and various individuals involved in his alleged constructive discharge.
Cid asserted two federal law claims under 42 U.S.C § 1983 and one Kansas state law
claim of retaliatory discharge. The defendants filed a motion to dismiss, which the federal
district court granted in part on January 9, 2019. It dismissed Cid's federal law claims for
failure to state a claim for relief, but declined to exercise supplemental jurisdiction over
Cid's state law claim and dismissed it without prejudice.
On July 3, 2019, Cid filed a state law claim in Riley County District Court, which
is the subject of this appeal. Cid's state claim named the Director of the RCPD—Dennis
P. Butler, and the Law Board as defendants. The defendants filed a motion to dismiss and
for judgment on the pleadings. The defendants asserted two arguments supporting their
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motion: (1) Cid's petition should be dismissed for failure to state a claim upon which
relief could be granted and it was barred by res judicata; and (2) Cid's petition was
untimely served on the Law Board. In opposing the motion, Cid argued that res judicata
did not bar his claims and asked the court to either find that his service on the Law Board
was timely or to allow him the opportunity to cure the invalid service.
After a hearing on the defendants' motion, the district court found that Cid made
purported service on the Law Board, entitling him to cure his prior invalid service
pursuant to K.S.A. 2019 Supp. 60-203(b). It further found that Cid did not need
additional time to cure his service on the Law Board because he had already done so by
serving the Law Board's Secretary, Barry Wilkerson, on October 29, 2019. The district
court denied the defendants' statute of limitations argument as to the Law Board but
ultimately granted defendants' motion to dismiss, finding that Cid's claim was barred by
res judicata. Cid appealed, and the defendants cross-appealed.
DISCUSSION
Cid claims that the district court's res judicata ruling must now be reversed based
on new precedent from the Kansas Supreme Court. The Appellees do not address this
new precedent but argue instead that the federal judgment precludes the state claims, and
that Cid's claims are also barred by the running of the statute of limitations.
I. Res Judicata does not bar Cid's state law claims based on dismissal of his
federal law claims.
Whether the doctrine of res judicata precludes a claim is a question of law of over
which this court exercises unlimited review. Res judicata bars a successive, or second
bite at the apple when the successive suit involves: (1) the same claim; (2) the same
parties; (3) a claim that could have been raised in the previous suit; and when (4) the
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claim received a final judgment on the merits in the previous suit. See Cain v. Jacox, 302
Kan. 431, 433, 354 P.3d 1196 (2015). Here, Cid originally pursued his claims in federal
district court, but that court dismissed his federal claims for failure to state a claim upon
which relief could be granted, and then declined to exercise supplemental jurisdiction
over Cid's state law claims and dismissed those without prejudice. After that dismissal,
Cid proceeded with his state law claims in state court, but the district court found that res
judicata barred Cid's state law claims, citing Rhoten and Stanfield, because the federal
court had declined to exercise supplemental jurisdiction and dismissed them in a prior
action. See Rhoten v. Dickson, 290 Kan. 92, 923 P.3d 786 (2010); Stanfield v. Osborne
Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997).
In December 2021, the Kansas Supreme Court issued its opinion in Herington,
314 Kan. 447, overruling Rhoten and Stanfield. As in this case, the petitioner in
Herington first filed suit in federal district court alleging federal civil rights violations
and several state law tort claims. The federal district court granted summary judgment in
favor of the defendants as to Herington's federal claims, and declined to exercise
supplemental jurisdiction over her state law claims and dismissed them without prejudice.
Herington then refiled her state law claims in Sedgwick County District Court. Relying
on the principles outlined in Rhoten and Stanfield, the district court found that
Herington's state law claims were barred by res judicata, and a panel of this court
affirmed the district court's findings. Herington sought review from the Kansas Supreme
Court, asking it to reconsider its decisions in Rhoten and Stanfield. Herington, 314 Kan.
at 448-49.
The Herington court started its res judicata analysis with a choice of law
discussion—and held that
"[w]here, as here, a federal court declines to exercise supplemental jurisdiction over state
law claims and dismisses those claims without prejudice, we hold there has been no final
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judgment on those state law claims, and the Kansas common law doctrine of res judicata
does not preclude a litigant from bringing those claims in state court." 314 Kan. at 464.
The court noted that to the extent the holding was inconsistent with Rhoten and
Stanfield—which both held that federal preclusion law governs such situations—those
decisions were overruled. 314 Kan. at 457.
In Herington, the court clearly overruled existing precedent and this court must
determine if the change in law applies to Cid's claims. As noted above, the Kansas
Supreme Court filed Herington on December 17, 2021. The court issued the mandate for
Herington on January 14, 2022. Parties "will receive the benefit of any change in the law
that occurs while [their] direct appeal is pending." State v. Murdock, 309 Kan. 585, 591,
439 P.3d 307 (2019). Cid's appeal was pending when the court decided Herington; thus,
Cid is entitled to the benefit of Herington on appeal.
Similar to the plaintiff in Herington, Cid initially filed a federal suit asserting
federal and state law claims but the federal district court declined to exercise
supplemental jurisdiction over Cid's state law claim and dismissed it without prejudice.
Under Herington—the now controlling res judicata precedent in Kansas—Cid did not
receive a final judgment on his state law claim and the four unities are not present. See
314 Kan. at 464; Cain, 302 Kan. at 434. Cid's state law claim is not barred by res
judicata.
II. The district court correctly applied K.S.A. 60-203(b) to find Cid timely
commenced his action against the Law Board.
In Appellees' cross-appeal, they argue that the district court erred by finding that
Cid made purported service on the Law Board such that he was entitled to cure his prior
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invalid service under K.S.A. 2019 Supp. 60-203(b), but they do not argue Cid's claim as
to Butler was untimely.
The time line of events is essential to this court's review, and the parties agree to
the following sequence:
• July 28, 2016: Cid resigned from the RCPD;
• February 23, 2018: Cid filed suit in federal district court alleging state and
federal law claims;
• January 9, 2019: The federal district court dismissed Cid's federal law
claims for failure to state a claim, and declined to exercise jurisdiction over
the state law claims and dismissed them without prejudice;
• July 3, 2019: Cid filed suit in state court asserting his state law claims—the
subject of this appeal;
• August 29, 2019: Cid served Dennis Butler, the Director of the RCPD; and
• October 29, 2019: Cid served Barry Wilkerson, the Secretary of the Law
Board.
At the district court, Appellees argued that Cid's state claim was time-barred by
the Kansas savings statute and the federal tolling statute. See K.S.A. 60-518 ("If any
action be commenced within due time, and the plaintiff fail in such action otherwise than
upon the merits, and the time limited for the same shall have expired, the
plaintiff . . . may commence a new action within six (6) months after such failure."); 28
U.S.C. § 1367 (The period of limitations for any supplemental jurisdiction claim that is
dismissed because the court declines to assert supplemental jurisdiction "shall be tolled
while the claim is pending and for a period of 30 days after it is dismissed unless State
law provides for a longer tolling period."). Cid argued that both the Kansas savings
statute and the federal tolling statute should be applied to save his state claim.
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The district court rejected both parties' arguments and calculated the statute of
limitations using the federal tolling statute—finding that when Cid filed his federal
claims on February 23, 2018, 155 days remained on the 2-year statute of limitations for
his state claim. The clock was stopped until 30 days after Cid's federal claims were
dismissed, which the court calculated as February 8, 2019. The court added the 155 days
remaining on the tolled statute of limitations and found that under 28 U.S.C. § 1367, the
statute of limitations was extended until July 13, 2019. See Artis v. District of Columbia,
583 U.S. ___, 138 S. Ct. 594, 606, 199 L. Ed. 2d 473 (2018) (applying the "stop-the-
clock" method to calculate the statute of limitations when tolled pursuant to 28 U.S.C. §
1367). The court also calculated the statute of limitations using the Kansas savings
statute, finding that it extended the statute of limitations six months from Cid's federal
court dismissal—to July 9, 2019. The district court held that under either statute, Cid's
July 3, 2019, filing of his state claim was within the statute of limitations. The parties do
not dispute the court's finding that the federal tolling statute saves Cid's claims filed in
state court on July 3, 2019—so long as he accomplished timely service on the parties.
Appellees appear to dispute the district court's application of the Kansas savings statute—
but this court need not evaluate that argument because the parties agree that July 3, 2019,
is within the statute of limitations pursuant to the federal tolling statute.
The district court noted that "filing an action is not synonymous with
'commencing' an action in all instances," so it analyzed whether Cid's state claim was also
timely commenced against Butler and the Law Board pursuant to K.S.A. 2019 Supp. 60-
203, which provides:
"[a] civil action is commenced at the time of: (1) [f]iling a petition with the court, if
service of process is obtained or the first publication is made for service by publication
within 90 days after the petition is filed, except that the court may extend that time an
additional 30 days upon a showing of good cause by the plaintiff; or (2) service of
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process or first publication, if service of process or first publication is not made within
the time specified by paragraph (1)."
The district court found that Cid's August 29, 2019, service on Butler was
effective service on the RCPD as Butler was the Director of the RCPD, and the service
occurred within 90 days of Cid's state filing—so the commencement date of Cid's state
claim against Butler was July 3, 2019—within the statute of limitations under either the
federal tolling statue or the Kansas savings statute. However, the court found that Cid's
August 29, 2019, service on Butler was ineffective service as to the Law Board because
Butler was not a director of the Law Board, nor a member. It further found that Cid's
October 29, 2019, service on Wilkerson, the Secretary of the Law Board, occurred more
than 90 days after Cid's state claim was filed—meaning it did not relate back to the July
3, 2019, filing date and thus the suit against the Law Board was commenced outside the
statute of limitations. The parties do not dispute these findings.
Appellees dispute the district court's finding that Cid's claim against the Law
Board was outside the statute of limitations but could be saved under the purported
service exception of K.S.A. 60-203(b) because Cid attempted to serve the Law Board by
serving Butler. K.S.A. 2019 Supp. 60-203(b) provides that
"[i]f service of process or first publication purports to have been made but is later
adjudicated to have been invalid due to an irregularity in form or procedure or a defect in
making service, the action is considered to have been commenced at the applicable time
under subsection (a) if valid service is obtained or first publication is made within 90
days after that adjudication, except that the court may extend that time an additional 30
days upon a showing of good cause by the plaintiff."
The district court held that Cid made purported service on the Law Board when Cid
served Butler on August 29, 2019, and Cid had already cured his ineffective service by
serving Wilkerson on October 29, 2019.
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Appellees contend that the district court correctly found Cid's service on the Law
Board ineffective, but it erred in finding Cid cured that ineffective service because Cid's
service on Butler did not "'have the appearance of being'" service on the Law Board.
Appellees contend that the only way Cid could claim purported service on the Law Board
would be to have attempted service on the Law Board's secretary, chair, or vice-chair.
Whether the district court correctly applied the applicable statute to save Cid's
service on the Law Board is a question of law over which this court has unlimited review.
See Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). In Fisher v.
Decarvalho, 298 Kan. 482, 314 P.3d 214 (2013), the case relied upon by the district
court, the Kansas Supreme Court explained that K.S.A. 60-203(b) is clearly and
unambiguously broad, and should not be read to unnecessarily limit its application. The
Fisher court explicitly rejected previous rationale that "service of process cannot purport
to have been made unless it appears to be facially valid." 298 Kan. at 501. It went on to
hold that it
"find[s] the language of K.S.A. 60-203(b) to be crystal clear. That language does, indeed,
provide that its provisions can be applied to save a cause of action any time service of
process is purported to have been made and is thereafter found defective for any reason.
Any suggestion to the contrary is hereby disapproved." (Emphasis added.) 298 Kan. at
502.
Cid sued both (1) Butler, as the Director of the RCPD; and (2) the Law Board. As
the district court noted, Cid claimed that service on Butler constituted substantial
compliance with the service requirements because "notwithstanding some irregularity or
omission, the party served was made aware that an action or proceeding was pending in a
specified court that might affect the party or the party's status or property." See K.S.A.
2021 Supp. 60-204. Cid argued that service on Butler constituted service on the Law
Board for multiple reasons, including that the Law Board meeting minutes reflected that
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Butler was a staff member of the Law Board and thus he could receive service as a
director or manager pursuant to K.S.A. 2019 Supp. 60-304(d)(4), and that the service was
purported service on the Law Board. Cid explicitly claimed he attempted to serve the
Law Board when he served Butler, and requested to correct the service pursuant to
K.S.A. 2019 Supp. 60-203(b) if the district court deemed it ineffective.
Appellees do not dispute that Cid believed Butler could receive service on behalf
of the Law Board—but claim that such erroneous belief cannot justify purported service.
"The attempted service on the Law Board by serving the RCPD Director is not purported
service under K.S.A. 60-203(b)" because it "did not 'have the appearance of being'
service on the Law Board." Appellees contend that the Law Board is a government
agency requiring service of it through service to its secretary, or in the event the secretary
cannot be located, the chairperson or vice chairperson. Appellees go on to explain that
"RCPD is unique in Kansas" in that the county does not have a sheriff or municipal
police department and the RCPD is a separate entity from the Law Board. They further
explain that although Butler is the Director of the RCPD, he is not a "director" of the Law
Board as contemplated by the service statute in K.S.A. 2019 Supp. 60-304(d)(4).
Appellees' lengthy explanation of why service on Butler, as Director of the RCPD,
is not purported service on the Law Board actually supports Cid's argument and the
district court's finding—that Cid believed service on Butler constituted service on the
Law Board. Cid did not serve a random, unrelated law enforcement officer or other
member of the Law Board, but a person identified as the Director of the RCPD, which
Appellees admit is a related entity. According to Appellees, the Law Board is the "county
law enforcement agency" and the RCPD is the "county law enforcement department" and
Butler was the "superintendent of the county law enforcement department." This unique
(according to Appellees) law enforcement structure should not be used to create
procedural hurdles to shield the RCPD or Law Board from service of process.
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There is no argument here that the Law Board was harmed, prejudiced, or
hampered in its defense by Cid's ineffective service. In fact, the Law Board was properly
served on October 29, 2019—just 118 days after Cid filed the state suit and just 61 days
after its codefendant and related entity received service. Contrary to Appellees' argument,
purported service under K.S.A. 2019 Supp. 60-203(b) need not be facially valid. Fisher,
298 Kan. at 499. In fact, the statute can be used to cure "a defect in making service"
whether or not that defect is apparent from the document's face. 298 Kan. at 502. Thus,
the district court did not err in applying K.S.A. 2019 Supp. 60-203(b) to cure Cid's
initially ineffective service on the Law Board.
CONCLUSION
The district court correctly concluded that the statute of limitations does not bar
Cid's claims against Butler, as the Director of the RCPD, and the Law Board.
Additionally, given the Kansas Supreme Court's decision in Herington during the
pendency of this appeal—the district court's dismissal of Cid's claims under the res
judicata doctrine is reversed. On remand, the district court should address Cid's claims on
the merits.
Appellees' cross-appeal is dismissed.
Affirmed in part, reversed in part, and remanded with directions consistent with
this opinion.
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