Printable Format60-217. Parties; capacity. (a) Real party in interest. (1) Designation in general. An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:
(A) An executor;
(B) an administrator;
(C) a guardian;
(D) a conservator;
(E) a bailee;
(F) a trustee of an express trust;
(G) a receiver;
(H) a party with whom or in whose name a contract has been made for another's benefit; and
(I) a party authorized by statute.
(2) Action in the name of the state of Kansas for another's use or benefit. When a statute so provides, an action for another's use or benefit must be brought in the name of the state of Kansas.
(3) Joinder of the real party in interest. The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join or be substituted into the action. After ratification, joinder or substitution, the action proceeds as if it had been originally commenced by the real party in interest.
(b) Claim accruing under law of another state. A claim for relief that has accrued under the laws of another state or territory may be sued upon by the person or persons authorized to bring and maintain an action on the claim in the state or territory where it arose. When the law of the state or territory where a claim for relief for death arose authorizes the action to be prosecuted by an administrator or executor, then the action may also be maintained by an administrator or executor appointed under the laws of this state.
(c) Minor or incapacitated person. (1) With a representative. The following representatives may sue or defend on behalf of a minor or an incapacitated person:
(A) A general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a representative. A minor or an incapacitated person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem, or issue another appropriate order, to protect a minor or incapacitated person who is unrepresented in an action.
(d) Public officer's title and name. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added.
History: L. 1963, ch. 303, 60-217; L. 1965, ch. 354, § 2; L. 1986, ch. 215, § 5; L. 2010, ch. 135, § 84; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, §§ 26, 28; L. 1909, ch. 182, §§ 25, 27; R.S. 1923, 60-401, 60-403.
(b). L. 1905, ch. 325, § 1; L. 1909, ch. 182, § 47; L. 1921, ch. 213, § 1; R.S. 1923, 60-423.
(c). G.S. 1868, ch. 80, §§ 29 through 34, 71; L. 1909, ch. 182, §§ 28 through 33, 77; L. 1911, ch. 228, § 1; R.S. 1923, 60-404 through 60-409.
Cross References to Related Sections:
Class actions, see 60-223.
Joinder of parties, see 60-219.
Service of process, minors and incapacitated persons, see 60-304(b) and (c).
Law Review and Bar Journal References:
Commented upon prior to legislative enactment, George Templar, 31 J.B.A.K. 169 (1962).
"Survival of Actions and Wrongful Death," Lawrence Curfman, 12 K.L.R. 21, 22 (1963).
1963-65 survey of civil practice, Earl B. Shurtz, 14 K.L.R. 171, 173 (1965).
"Assignability of Insured's Cause of Action for Bad Faith or Negligent Refusal to Settle," John T. Flannagan, 38 J.B.A.K. 297, 324, 325 (1969).
Burden of loss placement between insurer and third party tortfeasor; loan receipts discussed, 12 W.L.J. 366, 367, 370 (1973).
"Kansas Groundwater Management Districts," John C. Peck, 29 K.L.R. 51, 60 (1980).
"Survey of Kansas Law: Insurance Law," 29 K.L.R. 531 (1981).
"Family Law: A New Requirement for Paternity Determinations in Kansas —Determining if Blood Tests are in the Best Interest of the Child [In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989)]," Kristin Blomquist-Shinn, 30 W.L.J. 112, 113 (1990).
"Cutting the Hedge: Reforming Comparative Fault in Medical Malpractice," John W. Johnson and Edward L. Robinson, J.K.T.L.A. Vol. 30, No. 3, 12 (2007).
"ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery," J. Nick Badgerow, 77 J.K.B.A. No. 7, 30 (2008).
"Child Victim, Adult Plaintiff: How Kansas Attorney-Client Privilege Law Can Harm Teens and Their Parents," Michael T. Crabb, 18 Kan. J.L. & Pub. Pol'y, No. 1, 73 (2008).
Attorney General's Opinions:
Statutory basis for rules and regulations concerning prohibition of subrogation clauses by insurance commissioner. 84-35.
Cities' powers of home rule; human relations commission. 86-90.
Real party in interest when creditor sells or assigns a debt to a collection agency versus when creditor places a debt with a collection agency. 2012-11.
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-401, 60-403, 60-404, 60-406, 60-408, 60-409, 60-423 and the 1961 Supp. thereto.
1. Mentioned; plaintiff filed amended petition, rather than appeal; no error in striking amended petition. Grohusky v. Atlas Assurance Co., 194 K. 460, 462, 399 P.2d 797.
2. Legal title holder, not the beneficial interest determines proper party plaintiff in suit for collection. Howell, Trustee v. Wilson, 192 K. 223, 225, 387 P.2d 193.
3. If service of process is upon the minor only, record need not disclose why service valid. Holle v. Lake, 194 K. 200, 202, 203, 398 P.2d 300.
4. Irreconcilable conflict between state and federal law is resolved in favor of federal. Boeing Airplane Company v. Perry, 322 F.2d 589, 591.
5. To be treated same as prior law; insured real party in interest when only part of loss covered by insurance. Ellsaesser v. Mid-Continent Casualty Co., 195 K. 117, 119, 403 P.2d 185.
6. Record owner of undivided interest in oil lease is real party in interest. Home-Stake Production Co. v. Tri-State Pipe Co., 197 K. 163, 170, 415 P.2d 377.
7. Action brought hereunder not timely with respect to 12-105. Workman v. City of Emporia, 200 K. 112, 117, 434 P.2d 846.
8. In agent's action to collect for principal against payor bank for failure to dishonor, defense that agent not real party in interest considered but not determined. Leaderbrand v. Central State Bank of Wichita, 202 K. 450, 453, 450 P.2d 1.
9. Court did not take cognizance of the fact that guardian ad litem fees and taxation of costs fall within the purview of the statute. In re Estate of Showers, 207 K. 268, 275, 485 P.2d 299.
10. A minor child by next friend is the real party in interest in a paternity suit and not the social welfare department. Lawrence v. Boyd, 207 K. 776, 778, 486 P.2d 1394.
11. Subsection (a) cited in holding summary judgment properly entered. Torkelson v. Bank of Horton, 208 K. 267, 269, 491 P.2d 954.
12. Requirement that action be brought by real party in interest is to prevent repeated harassment of defendant by multiplicity of suits. Torkelson v. Bank of Horton, 208 K. 267, 269, 270, 491 P.2d 954.
13. When loss is fully paid by insurer with subrogation, insurer becomes real party in interest and must maintain the action against third party. J. C. Livestock Sales, Inc. v. Schoof, 208 K. 289, 290, 291, 491 P.2d 560.
14. Deciding factor under subsection (a) is whether party suffering loss received full or only partial satisfaction. Cullen v. Atchison, T.&S.F. Rly. Co., 211 K. 368, 374, 507 P.2d 353.
15. Conservator of defendant's estate substituted as appellant pursuant to subsection (c) after defendant adjudicated incompetent. Seal v. Seal, 212 K. 55, 56, 510 P.2d 167.
16. Subsection (a) cited in holding party in possession under executory sales contract is real party in interest. Hall v. Pioneer Crop Care, Inc., 212 K. 554, 559, 512 P.2d 491.
17. Action for damages against holdover tenant; new tenant was real party in interest. Stoppel v. Mastin, 220 K. 667, 672, 556 P.2d 394.
18. Section cited; county liable for the medical services rendered an injured prisoner. Mt. Carmel Medical Center v. Board of County Commissioners, 1 K.A.2d 374, 375, 566 P.2d 384.
19. Subsection (a) cited and construed; real party in interest is the party who, by substantive law, has the right sought to be enforced. Henderson v. Hassur, 225 K. 678, 681, 594 P.2d 650.
20. Abandonment of contention that administrator of estate on appeal was not real party in interest. Kiser v. Gilmore, 2 K.A.2d 683, 686, 587 P.2d 911.
21. Cited; insurer becomes the real party in interest once the total amount of the loss has been paid; must bring action for reimbursement; judgment affirmed. Dondlinger & Sons' Constr. Co. v. EMCCO, Inc., 227 K. 301, 306, 606 P.2d 1026.
22. Plaintiff seeking damages not covered by insurance policy was real party in interest; summary judgment reversed. Thompson v. James, 3 K.A.2d 499, 500, 501, 502, 503, 597 P.2d 259.
23. Suit brought on behalf of board of regents properly brought in name of State ex rel. Attorney General. State ex rel. Schneider v. City of Kansas City, 228 K. 25, 26, 612 P.2d 578.
24. A person adjudicated incapacitated with respect to his person and estate does not possess requisite capacity to file divorce action. Brice-Nash v. Brice-Nash, 5 K.A.2d 332, 334, 615 P.2d 836.
25. Plaintiff does not have to be the landowner to have standing to apply for special use permit. Martin Marietta Aggregates v. Board of Leavenworth County Comm'rs, 5 K.A.2d 774, 781, 625 P.2d 516.
26. "Real party in interest" defined and discussed; record sufficient to show plaintiff was "real party in interest." Swanston v. McConnell Air Force Base Fed'l Cred. Union, 8 K.A.2d 538, 543, 661 P.2d 826 (1983).
27. Where insured has been paid for amount of loss to property by insurer, insurer becomes party with right against any wrongdoer. Busch v. City of Augusta, 9 K.A.2d 119, 122, 674 P.2d 1054 (1983).
28. Statute of limitations is affirmative defense that must be raised. O'Donnell v. Fletcher, 9 K.A.2d 491, 494, 681 P.2d 1074 (1984).
29. Successor trustees had standing to challenge void judgment in absence of recordation of their succession. Ford v. Willits, 9 K.A.2d 735, 740, 688 P.2d 1230 (1984).
30. Action by minor to change name must be brought in name of child by next friend or guardian. In re Application to Change Name, 10 K.A.2d 625, 626, 706 P.2d 480 (1985).
31. Assignment by bankruptcy trustee of tort claims back to bankrupt not within purview of law on assignability of torts. Newell v. Krause, 239 K. 550, 555, 556, 722 P.2d 530 (1986).
32. Right of action for damages resulting from tort not assignable. Star Mfg. Co., Inc. v. Mancuso, 680 F.Supp. 1496, 1498 (1988).
33. When loss but partially covered by insurance, insured proper party to bring suit for entire loss, holding in trust for insurer. Fidelity & Deposit Co. of Maryland v. Shawnee State Bank, 13 K.A.2d 182, 185, 766 P.2d 191 (1988).
34. Exclusionary clause in insurance contract for "intentional" acts of mentally ill insured examined; liability for guardian ad litem fees discussed. Shelter Mut. Ins. Co. v. Williams, 248 K. 17, 20, 30, 804 P.2d 1374 (1991).
35. Real parties in interest examined in legal fee dispute arising from referral of personal injury case. Ryder v. Farmland Mut. Ins. Co., 248 K. 352, 807 P.2d 109 (1991).
36. Cited in holding trial court erred in allowing attorney fees and costs under 60-211 and 60-2007 for filing frivolous action. Giblin v. Giblin, 253 K. 240, 249, 854 P.2d 816 (1993).
37. Whether deed assigned causes of action changing party in interest examined. Convention v. Mesa Operating Limited Partnership, 253 K. 717, 737, 864 P.2d 204 (1993).
38. Whether corporate mortgagee bank has standing to assert homestead exemption of a mortgagor to protect its mortgage lien examined. Bank of Kansas v. Davison, 253 K. 780, 783, 861 P.2d 806 (1993).
39. Whether guardian ad litem appointed to represent party under legal disability is authorized to enter into family settlement agreement examined. In re Estate of Wise, 20 K.A.2d 624, 632, 890 P.2d 744 (1995).
40. Employer who contracted with party for sales contract is real party in interest in breach action. Lisbon v. Heatcraft, Inc., 23 K.A.2d 374, 377, 930 P.2d 1096 (1997).
41. Motion under Rule 1.5(e) of Kansas Rules of Professional Conduct improper to resolve dispute between two plaintiffs over responsibility for litigation expenses. Gillespie v. Seymour, 272 K. 1387, 39 P.3d 61 (2002).
42. Parent can file motion for appointment of guardian ad litem to represent minor's interests in divorce. In re Marriage of Osborn, 35 K.A.2d 853, 856, 135 P.3d 199 (2006).
43. District court erred in conversion action to allow reasonable time to join real party in interest. Snider v. MidFirst Bank, 42 K.A.2d 265, 211 P.3d 179 (2009).
44. A shareholder of a corporation is not a real party in interest to obtain redress for injuries to the corporation. Atkins v. Heavy Petroleum Partners, LLC, 86 F.Supp.3d 1188, 1201 (D. Kan. 2015).