69 F.3d 406 (10th Cir. 1995), 94-3412, Wilmer v. Board of County Com'rs of Leavenworth County

Docket Nº:94-3412, 95-3006.
Citation:69 F.3d 406
Party Name:James Harold WILMER, Jr., Plaintiff-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Defendant-Appellant.
Case Date:October 18, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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69 F.3d 406 (10th Cir. 1995)

James Harold WILMER, Jr., Plaintiff-Appellee,




Nos. 94-3412, 95-3006.

United States Court of Appeals, Tenth Circuit

October 18, 1995

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Robert D. Beall, of Davis, Beall, McGuire & Thompson, Leavenworth, KS, Chartered for Plaintiff-Appellee.

John L. White, Leavenworth, Kansas, for Defendant-Appellant.

Before MOORE, BARRETT, and WEIS, [*] Circuit Judges.

MOORE, Circuit Judge.

The defendant Board of County Commissioners appeals from two post-judgment orders entered by the district court in this diversity action pursued under the Kansas Tort Claims Act (KTCA). The underlying judgment, an award of $638,457.30 to plaintiff James Harold Wilmer, Jr., was affirmed in Wilmer v. Board of County Comm'rs, 1994 WL 325405, 1994 U.S.App. LEXIS 23825 (10th Cir. Aug. 26, 1994). In appeal No. 94-3412, the Board challenges the district court's authority, on remand from that decision, to order prompt payment of the judgment through issuance of notes or bonds pursuant to Kan.Stat.Ann. Sec. 75-6113, see Wilmer v. Board of County Comm'rs, 866 F.Supp. 502, 506 (D.Kan.1994), arguing that state law and our mandate required use of the time-consuming tax levy procedure set out in Kan.Stat.Ann. Sec. 19-108. In appeal No. 95-3006, the Board challenges the district court's refusal to reduce the judgment to the $500,000 limit specified in the KTCA, Kan.Stat.Ann. Sec. 75-6105. See Wilmer v. Board of County Commr's, 872 F.Supp. 865, 867 (D.Kan.1994). Mr. Wilmer contends these appeals are frivolous and seeks appropriate sanctions. For the reasons explained below, we modify the judgment to conform to the KTCA limit, dismiss the Board's appeal regarding payment of the judgment so modified as moot, and deny Mr. Wilmer's motion for sanctions. 1

Passing over much of the case's tortuous procedural history, including three successive jury trials and numerous prior appeals, we are at present concerned primarily with events following this court's decision on the Board's last appeal. On remand, the Board filed a motion for partial relief from or modification of judgment, contending that the $500,000 limit imposed by Sec. 75-6105 is jurisdictional and, thus, insofar as the judgment against the Board exceeds that amount, it falls within the remedial scope of Fed.R.Civ.P. 60(b)(4)(providing for relief from final judgment that is "void"). Application of the KTCA cap follows from the plain language of the statute, 2 and the Board's jurisdictional characterization thereof is supported by Kansas case law, see, e.g., Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400, 403 (1982)("An exception written into a tort claims act constitutes a jurisdictional bar."); Force ex rel. Force v. City of Lawrence, 17 Kan.App.2d 90, 838 P.2d 896, 901 (1992) (quoting Carpenter); accord Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982)(discussing Federal Tort Claims Act). Thus, the Board's challenge to

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the judgment was not only substantively valid, but properly raised under Rule 60(b)(4), see, e.g., V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir.1979)(voidness for Rule 60(b)(4) purposes usually involves such jurisdictional deficiencies), which, unlike other subsections of the rule, provides a mandatory remedy that is not subject to any particular time limitation. See, e.g., Venable v. Haislip, 721 F.2d 297, 299-300 (10th Cir.1983); V.T.A., Inc., 597 F.2d at 224.

Nevertheless, the district court rejected the Board's request for Rule 60(b)(4) relief, based on what it deemed to be the law of the case established by this court's decision on...

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