Wilmer v. BOARD OF COUNTY COM'RS

Citation866 F. Supp. 502
Decision Date31 October 1994
Docket NumberCiv. A. No. 91-2265-GTV.
PartiesJames Harold WILMER, Jr., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, KANSAS, Defendant.
CourtU.S. District Court — District of Kansas

Arthur R. Stirnaman, Chapman, Waters & Baxter, John L. White, Law Offices of John L. White, Leavenworth, KS, for plaintiff.

Robert D. Beall, Davis, Beall, McGuire & Thompson, Chtd., David C. VanParys, County Counselor, Leavenworth, KS, for defendant.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case is before the court on the following motions:

Plaintiff's motion for an order in mandamus filed on September 1, 1994 (Doc. 175); and
Plaintiff's motion for an order requiring payment of judgment by defendant filed on October 12, 1994 (Doc. 179).

The court held a hearing on these motions on October 24, 1994, and at the conclusion of the hearing announced its order that the defendant satisfy the judgment in this case on or before December 23, 1994, by issuing no-fund warrants, temporary notes, or general obligation bonds pursuant to K.S.A. 75-6113. This Memorandum and Order will serve to further explain the court's rationale and to memorialize the court's ruling.

I. Background

Some background information is necessary in order to understand the issues confronting the court in this case. Plaintiff was injured on March 26, 1989, in a motorcycle accident on a county road located in Leavenworth County, Kansas. In a diversity jurisdiction personal injury action, plaintiff alleged that defendant Leavenworth County's (the County) negligent maintenance was the proximate cause of the accident and his injuries. Two jury verdicts in favor of plaintiff were set aside. The case was tried to a jury for the third time from August 16, 1993, to August 20, 1993. The jury found the defendant 65% at fault, yielding a judgment for the plaintiff in the amount of $638,457.30.

After entry of judgment on August 20, 1993, defendant moved for a new trial. The court denied the motion and defendant filed a timely notice of appeal on November 5, 1993. In response to plaintiff's motions to require defendant to satisfy the judgment or post a supersedeas bond and defendant's motion to stay the proceedings enforcing payment of the judgment, the court on November 19, 1993, entered an order granting defendant's motion for a stay of enforcement upon the filing of a supersedeas bond on or before December 20, 1993.

Defendant failed to post a bond by that date, and on December 29, 1993, the court denied defendant's motion for reconsideration and entered an order in mandamus requiring the defendant to satisfy the judgment by paying the full judgment amount plus interest on or before January 17, 1994. Defendant appealed this decision on January 10, 1994, and the Tenth Circuit temporarily stayed this court's order in mandamus. Also on January 10, 1994, the defendant filed a motion for reconsideration of the court's order in mandamus. In its motion for reconsideration, defendant stated that it was willing to post a supersedeas bond as a condition for the court granting the motion for reconsideration. On February 4, 1994, the court granted defendant's motion and withdrew the order in mandamus provided that defendant post a supersedeas bond on or before February 15, 1994. On February 9, 1994, apparently without notice of this court's ruling on defendant's motion to reconsider, the Tenth Circuit issued an order continuing the January 14, 1994, stay order pending further disposition by the appellate panel on the merits of the appeal.

After defendant failed to post the supersedeas bond by the February 15 deadline, plaintiff filed a motion for an order finding defendant in contempt. In response, the court again, on March 21, 1994, ordered defendant to post a supersedeas bond on or before April 5, 1994, and ruled that failure to do so would result in the court finding defendant in civil contempt of court. The Tenth Circuit then granted defendant's motion to stay the court's March 21, 1994, order.

On August 26, 1994, the Tenth Circuit entered an Order and Judgment affirming the jury verdict and judgment 28 F.3d 114. The Order and Judgment further instructed defendant to "immediately begin the steps necessary to ensure a swift satisfaction of the $638,457.30 plus interest judgment pursuant to the levy procedures in K.S.A. 19-108. The trial court has full discretion to monitor the situation to ensure quick and good faith compliance with this mandate." Order and Judgment at 2-3.

II. Current Status of the Judgment

On October 24, 1994, the court heard testimony and argument related to the plaintiff's motions to compel the defendant to pay the judgment. The court makes the following findings of fact based on the testimony of George L. Sprague, Jr., County Commissioner and Chairman of the Board of County Commissioners, and other evidence presented at the hearing.

1. Although now insured, the County was self-insured at the time of plaintiff's accident and therefore is not insured for this judgment. The County does maintain risk management and special liability funds which are available to pay judgments. The unencumbered balances in those accounts as of September 30, 1994, total $198,594.49. Other than the judgment in this case, there are no judgments now pending against the County.

2. The County has done nothing to budget or allocate funds for the payment of this judgment, either before or after the County received the Tenth Circuit's order affirming the judgment.

3. In December, 1993, the County filed with this court a pleading in which it stated that, if judgment is finally entered in favor of the plaintiff, the County could under the authority of K.S.A. 75-6113 issue a temporary note to satisfy the judgment and that such process could be accomplished within a 30-day period. Since that time there has been no change in the County's creditworthiness and nothing has happened that would prohibit the County from issuing such a note.

4. Kansas statute requires county commissioners to meet on the first Monday of August of each year to determine the amount of money to be raised by tax. K.S.A. 79-1802. The amount of ad valorem tax to be levied must be certified to the county clerk on or before August 25 of each year. K.S.A. 79-1801. Since the Leavenworth County Board of County Commissioners took no action this year, the earliest that a tax levy to satisfy the judgment in this case could be certified to the county clerk is August, 1995. The tax that would include such a levy would be due in two installments, with one-half due on or before December 20, 1995, and the other half due on or before June 20, 1996. K.S.A. 79-2004, 79-2004a.

III. Plaintiff's Motions

Plaintiff's September 1, 1994, motion (Doc. 175) requests the court to issue an order in mandamus requiring defendant to satisfy the judgment by issuing no-fund warrants, temporary notes, or general obligation bonds as authorized by K.S.A. 75-6113. In his second motion (Doc. 179), filed October 12, 1994, plaintiff requests the court to enter an order requiring the County to pay the full judgment within 30 days, the same terms that the defendant proposed in its December, 1993, pleading. After reviewing the relevant facts and law, the court finds that plaintiff's motions should be granted in the manner set forth below.

The County has repeatedly misrepresented its position to this court. On November 19, 1993, the court entered an order to stay enforcement of the judgment upon the County's filing of a supersedeas bond. The County filed a motion for reconsideration of that order on December 6, 1993. In its memorandum in support of the motion, the County argued that it should not be required to post a supersedeas bond because "K.S.A. 75-6113 would reduce the collection process, if judgment is finally entered in favor of plaintiff, to the simple process of the issuance of a temporary note of the County. Such processes are routinely done by counties and, based upon the recent experience of Leavenworth County in issuing such notes, can be accomplished well within a 30-day period. Leavenworth County has an assessed valuation of approximately 243 million dollars and the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. exempts temporary notes issued to satisfy such judgment from any tax lid authority. The Court should have a high degree of confidence that funds would quickly be available to pay any final judgment in this matter." Memorandum in Support of Defendant's Motion for Reconsideration (Doc. 138) at 2 (emphasis added).

As the procedural maneuvering transpired, the County was never required to post a supersedeas bond. Despite the County's assurances to this court that funds would be quickly available to pay any final judgment, the County now contends that funds will not be available to fully satisfy the judgment until June, 1996, almost three years after the jury...

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1 cases
  • Wilmer v. Board of County Com'rs of Leavenworth County
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 18, 1995
    ...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.Sta......

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