                           NOT DESIGNATED FOR PUBLICATION

                                             Nos. 120,919
                                                  120,920
                                                  120,922
                                                  120,923

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          JOSE LOPEZ, et al.,
                                             Appellees,

                                                    v.

                    ULTIMATE CONSTRUCTION LLC and STEWART ENSIGN,
                                     Appellants.


                                   MEMORANDUM OPINION

        Appeal from Johnson District Court; DANIEL W. VOKINS, magistrate judge. Opinion filed April
24, 2020. Affirmed in part, reversed in part, and remanded with directions.


        Terence E. Leibold, of Petefish, Immel, Hird, Johnson, Leibold & Sloan L.L.P., of Lawrence, for
appellants.


        No appearance by appellee.


Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.


        PER CURIAM: In these four consolidated Chapter 61 cases filed in Johnson County
District Court, Plaintiffs Jose Lopez, Carmelo Galvan-Diaz, Alejandro Zapata-Gonzalez,
and Don Carmago sued Defendants Ultimate Construction, LLC and Stewart Ensign for
compensation due them for work they performed for the company. The district court
entered judgments for the plaintiffs, and the defendants have appealed. We affirm the
judgments against Ultimate Construction. We reverse as to Ensign and remand for further

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proceedings because, given the record evidence, the district court erred in finding Ensign
had been personally served with the summonses and petitions in the cases.


       The only issue on appeal is whether the plaintiffs obtained valid residential service
of process on Ensign personally. In the district court, the defendants conceded the
plaintiffs eventually served Ultimate Construction through the Kansas Secretary of State.
They really did not otherwise dispute the plaintiffs' claims against Ultimate Construction
in the district court, and they do not raise any issues on appeal challenging those portions
of the judgments. The facts of the underlying employment dispute are immaterial to the
governing issue and are only cursorily set out in the appellate record.


       The plaintiffs filed their actions in 2017 and identified a specific street address on
SW Wanamaker Road in Auburn, Kansas, as Ensign's residence and the location of
Ultimate Construction's registered agent. Ensign is the owner of and principal in Ultimate
Construction; he is its registered agent for service of process. On December 4, 2017, a
Shawnee County Sheriff's deputy delivered process for both the company and Ensign to
the Wanamaker address in each of these cases. The deputy then mailed notices of the
deliveries also to the Wanamaker address. See K.S.A. 2019 Supp. 61-3003(d)(1) (method
of making personal and residential service in Chapter 61 actions). In outlining personal
and residential service, K.S.A. 2019 Supp. 61-3003(d)(1) states:


               "(1) The party may file a written request with the clerk for personal or residence
       service. Personal service shall be made by delivering or offering 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 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


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       and mailing a notice that such copy has been left at such house or place of abode to the
       individual by first-class mail."


       A lawyer representing both Ensign and Ultimate Construction filed a motion to
dismiss in the consolidated cases on the grounds service had not been properly made. The
lawyers for both sides filed written submissions on the issue, and the defendants
submitted various documents in support of their request for dismissal. Ensign argued the
Wanamaker address ceased being his residence or usual place of abode under K.S.A.
2019 Supp. 61-3003(d)(1) in October 2017 when he moved out and then leased the house
to a married couple. As we have said, during the course of the litigation in the district
court, the plaintiffs served Ultimate Construction a second time through the Kansas
Secretary of State.


       The district court denied the defendants' motion to dismiss for insufficient service
of process. At the conclusion of the hearing, the district court found service on Ultimate
Construction to be sufficient because the Wanamaker address had been listed with the
Kansas Secretary of State for its registered agent and without any further explanation also
found personal service on Ensign to be proper. In a later journal entry, the district court
stated service on Ensign to have been sufficient because "he did not show he did not have
possession [of the Wanamaker address] along with the renters." The district court
ultimately entered judgments for the plaintiffs. The defendants have appealed.


       The only point for our consideration on appeal is whether Ensign personally was
served with process in substantial compliance with K.S.A. 2019 Supp. 61-3003(d)(1).
And Ensign confines this challenge to whether the record evidence shows he resided at
the Wanamaker address when the sheriff's deputy delivered process there. So Ensign does
not fault what the deputy did to effect service. Rather, he says the address given the
deputy was incorrect by December 4, 2017. Similarly, the plaintiffs never disputed the
procedural propriety of Ensign's motion to dismiss in a Chapter 61 action. Nor did they

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object to the materials Ensign submitted to the district court in support of the motion. The
plaintiffs have not filed a brief in this court.


       For our purposes, Ensign adequately raised and preserved the insufficiency of
service of process in the district court. The evidentiary materials he submitted were and
remain undisputed. We, therefore, confront what amounts to a question of law upon
which we owe no particular deference to the district court. Estate of Belden v. Brown
County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (when controlling facts
undisputed, issue presents question of law).


       We suppose that as the parties filing the motion to dismiss based on insufficiency
of service, the defendants had the burden of proof in the district court. Among the
materials they submitted, we turn to an affidavit dated January 5, 2018, from Carol A.
Peden in which she states she and her husband leased the Wanamaker address from
Ensign as of November 1, 2017, and had lived there continuously since then. Peden
further states that Ensign "has not had possession of or resided at [the Wanamaker
address]" after November 1, 2017. In the district court, the plaintiffs neither objected to
those representations nor offered any evidence contradicting them either directly or
circumstantially. Although Ensign offered other evidence suggesting he no longer resided
at the Wanamaker address by November 1, including his own affidavit, Paden's
undisputed averments alone are adequate to undermine the sufficiency of the service of
process on Ensign personally. In short, the record evidence established that Ensign did
not reside at or maintain the Wanamaker address as his usual place of abode as required
by K.S.A. 2019 Supp. 61-3003(d)(1) on December 4, 2017, when the sheriff's deputy
delivered process there in these cases.


       The district court, therefore, erred in denying the defendants' motion to the extent
the service of process on Ensign was insufficient. And, in turn, the judgments entered
against Ensign must be set aside. Ensign, however, is not entitled to an order of dismissal.

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       Under K.S.A. 61-2902(b), if a plaintiff purports to have served process and the
service is later adjudicated to be invalid because of a defect in form or procedure or in
making service, then the plaintiff must be afforded 90 days to effect valid service, thereby
formally commencing the action. Here, the plaintiffs come within that savings provision
and should be given the opportunity to complete valid personal service on Ensign. See
Fisher v. DeCarvalho, 298 Kan. 482, Syl. ¶ 7, 314 P.3d 214 (2013) (construing
comparable statutory language in K.S.A. 60-203[b]).


       We, therefore, affirm the judgments against Ultimate Construction. We reverse
and remand as to Ensign with directions to the district court to: (1) set aside the
judgments against him for insufficiency of service of process; (2) formally adjudicate the
service of process to have been insufficient; and (3) allow the plaintiffs to obtain valid
service of process consistent with K.S.A. 61-2902(b).


       Affirmed in part, reversed in part, and remanded with directions.




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