# Pork Motel, Corp. v. Kansas Department of Health & Environment

> Supreme Court of Kansas · December 2, 1983 · 234 Kan. 374

URL: https://www.frixlaw.com/law-library/cases/9588088

## Case

- **Full name:** Pork Motel, Corp., Appellant, v. the Kansas Department of Health and Environment, Appellee
- **Court:** Supreme Court of Kansas
- **Decided:** December 2, 1983
- **Citations:** 234 Kan. 374; 673 P.2d 1126; 20 ERC (BNA) 2011; 1983 Kan. LEXIS 424
- **Precedential status:** Published
- **Opinion:** Concurring in part by Prager
- **Judges:** Lockett, Prager, Herd
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588088

## How later opinions describe it (automated extraction)

- finding agency order has presumption of validity

## Opinion text

Prager, J.,
concurring and dissenting:
*391 I concur with the opinion and affirmance in case No. 55,087. I respectfully dissent from the reversal of case No. 55,352, which reversal was based on the fact that the order directed to Pork Motel to appear and show cause was served by mail on Frank Norton, who had served as counsel for Pork Motel in the case prior to the order to appear and to show cause.
I have concluded from a reading of the transcript of the record that any defects in the service were waived by counsel at the time of the hearing of the motion to show cause held on January 4, 1983. Although counsel for Pork Motel raised the issue of improper service, he advised the court that he did not deny that the order to appear and to show cause was received. The following conversation between the court and defendant’s counsel in the transcript should be noted:
“THE COURT: Do you deny receiving it?
“MR. KELLY: No, Your Honor.
“THE COURT: So it’s really a moot question.
“MR. KELLY: We just want to raise it. Yes.
“THE COURT: But being here you also waive it.
“MR. KELLY: Well, really I just said we waived it.
“THE COURT: Yes. Proceed.” (Emphasis supplied.)
It is clear that the court asked counsel if the question of service was really a moot question. Counsel responded, “We just want to raise it. Yes.” I would interpret this portion of the transcript to mean that counsel for Pork Motel, although desiring to raise the issue, agreed that it was really a moot question and that, defendant being present, waived any defect in the service.
Even in the absence of waiver, it seems overly technical to hold that the district court had no jurisdiction to consider the contempt issue, where the order to show cause was received by defendant’s counsel and where defendant appeared in court in response to the order to show cause. The motion to show cause was not the original summons in the case. The case had already been tried on the merits and a judgment entered. I see no reason why K.S.A. 60-205(b), cited in the majority opinion, was not applicable in the case. Under the circumstances, it seems to me it is unreasonable and contrary to the spirit of the Kansas Code of Civil Procedure to hold that the district court had no jurisdiction to proceed.
For the reasons set forth above, I respectfully dissent from the reversal of case No. 55,352.
*392 Miller and Herd, JJ., join the foregoing concurring and dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588088. Public record. Not legal advice.