Admire Bank & Trust v. City of Emporia

• Decision Date: 10 April 1992
• Docket Number: No. 66655,66655
• Citation: 829 P.2d 578,250 Kan. 688
• Parties: ADMIRE BANK & TRUST, Appellant, v. CITY OF EMPORIA, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 578

829 P.2d 578

250 Kan. 688

ADMIRE BANK & TRUST, Appellant, v. CITY OF EMPORIA, Kansas, Appellee.

No. 66655.

Supreme Court of Kansas.

April 10, 1992.

Syllabus by the Court

1. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion.

2. The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.

3. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

4. The trial court is required to resolve all facts and inferences that reasonably may be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and if we find reasonable minds could draw different conclusions from the evidence, summary judgment must be denied.

5. The statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant.

6. The legislature has the power to shorten an existing statute of limitations, provided a reasonable time is given for a person having an existing cause of action to commence an action before the bar takes effect.

7. The plain language of K.S.A. 1991 Supp. 60-513 and the applicable case law require that after July 1, 1989, a negligence action must be brought within 10 years of the original wrongful act or the action is barred.

8. Under the provisions of K.S.A. 60-510, an action can be commenced only within the period prescribed by the applicable statute after the cause of action has accrued.

9. If a statute of limitations is otherwise reasonable, a claimant is not deprived of due process because the statute of limitations expired before a claimant has sustained any injury or before the claimant knows an injury has been sustained.

10. Statutes of limitations are matters of legislative prerogative, carrying the presumption of constitutional validity.

Mark E. Jones of Polsinelli, White, Vardeman & Shalton, Overland Park, argued the cause and was on the briefs for appellant.

Dale W. Bell of Helbert, Bell & Smith, Chartered, Emporia, argued the cause, and James R. Campbell, of the same firm, was with him on the brief for appellee.

ABBOTT, Justice:

This dispute arises out of a party wall demolition. The parties do not discuss whether there was or is a party wall agreement or a right by prescription.

The trial court granted judgment on the pleadings in favor of the defendant, City of Emporia (City), and against the plaintiff, Admire Bank & Trust (Bank). Judgment was granted on the basis that the statute of limitations had run.

The trial court should have considered the motion for judgment on the pleadings as a motion for summary judgment. Thus, the issue becomes whether the trial court erred in granting summary judgment to the City.

The Bank filed a petition in July 1990, alleging that the buildings at 514 and 516 Commercial in Emporia, Kansas, shared a "party wall" and that the City demolished the building at 516 Commercial. The Bank claimed the City was a common owner of the party wall when it was demolished and had a duty to use reasonable care to protect the structural integrity of the party wall and to avoid damage to the building at 514 Commercial, which the Bank owned.

The City answered that it was the City's "understanding" that the building at 516 Commercial was demolished in approximately 1970.

Most of the rest of the facts are taken from briefs filed with the trial court and from statements of counsel during argument on the motion for judgment on the pleadings.

The Bank acquired the properties at 510 and 514 Commercial in January 1990, after the property at 516 Commercial had been demolished. The Bank claims it does not know when the building at 516 Commercial was demolished, but claims one of its employees "thinks" it may have been within the last 10 years. The Bank also maintains that after it acquired the property, it received notice that the City was condemning the buildings at 510 and 514 Commercial, which were adjoined, because of structural integrity problems. The City denies it ever gave notice it was ordering the property to be demolished.

After the buildings at 510 and 514 Commercial were demolished, the Bank filed suit, alleging that the City's negligence in demolishing the building at 516 Commercial caused damage to the Bank's buildings at 510 and 514 Commercial. According to the Bank, the City "failed to leave the property at 514 Commercial with any lateral support"; "failed to close the stone caps on the parapet walls, allowing water to get into the north wall and causing the wall to crack and mortar to be washed out"; and further "failed to protect structures adjacent to the property owned by [the Bank] at 514 Commercial." The Bank claimed that this damage necessitated demolition of the buildings. The Bank seeks compensation for the costs incurred in removing the buildings at 510 and 514 Commercial, for the diminution in value of the property, and for the loss of rent for a reasonable period of time.

The City filed a motion for judgment on the pleadings, pursuant to K.S.A.1991 Supp. 60-212(c). The City claimed the applicable statute of limitations, K.S.A.1991 Supp. 60-513, barred the Bank's claim because the building at 516 Commercial was removed in approximately 1970.

In its memorandum decision, the trial court specifically referred to the City's motion as a motion for judgment on the pleadings. The trial court also stated it accepted 1970 as the date the building at 516 Commercial was demolished.

A motion for judgment on the pleadings is governed by K.S.A.1991 Supp. 60-212(c).

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion."

A review of the record reveals the trial court considered matters outside the pleadings to reach its conclusion.

In its answer, the City stated it understood the date of demolition was "approximately 1970." The City did not explain the basis for its understanding nor support it with any evidence. In its motion for judgment on the pleadings, the City stated the pleadings showed the building was demolished in approximately 1970. A hearing on the motion was scheduled for September 7, 1990. The Bank obtained a continuance in order to discover the demolition date, and the hearing was rescheduled for October 26, 1990.

The Bank filed its response to the City's motion on October 24, 1990, and claimed a factual dispute existed whether the building at 516 Commercial was demolished in 1970. The Bank based its claim on the fact it did not know when the building was demolished. The Bank also noted that the City was not certain of the date because the City stated the demolition occurred in approximately 1970.

At the hearing on October 26, the trial court made the following observation: "So the date of the tearing down and the damage to the building would be the date that the Court would be interested in, but that will have to be tied down some way or other. Is there not some evidence somewhere to tie this date down?" In response, the City stated:

"Well, Your Honor, we have provided through discovery some things that do tie it down as far as when the city acquired the property which was in early 1970. I also just procured today an affidavit from [a] representative of KP & L which indicated they installed a freestanding streetlight on the--on July 10, 1970, which I believe is a pretty good indication that the building must have been torn down at that time. The only other thing we've been able to come up with so far is in the minutes of December '69 meeting when it was offered which again was provided through discovery was the idea that it would be boughten [sic ] and then torn down and the date of the acquisition was December 31, ' 69."

The affidavit and the meeting minutes were never entered into evidence and are not a part of the record, nor is any discovery in the record before us.

At the hearing, the Bank argued the date the building was demolished was in dispute, but offered no evidence to counteract the City's claims. Toward the close of the hearing, the court asked the Bank whether it was suggesting that demolition occurred within the past ten years. The Bank's counsel replied:

"Your Honor, we don't know. I mean I have been told that by the people at the bank that they do not believe it was that long ago. But we have not been able to find any definitive information as of yet as to when it occurred. So I can't say. But we think it was in the last ten years, Your Honor."

The trial court issued its memorandum decision and made the following findings:

"[The Bank] sought and obtained a continuance of the hearing in order to ascertain the date of demolition. At this time there is no evidence of when demolition took place other than 'approximately 1970.'

....

"The Court finds that [the City] has alleged through these proceedings that the date of tearing down the building was 'approximately 1...