Ayalla v. Unified Gov't of Wyandotte Cnty., 111,813.

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation349 P.3d 491 (Table)
PartiesEva AYALLA, Appellant, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, Kansas City, Kansas, and J .M. Fahey Construction Company, Appellees.
Docket Number111,813.
Decision Date29 May 2015

349 P.3d 491 (Table)

Eva AYALLA, Appellant
M. Fahey Construction Company, Appellees.


Court of Appeals of Kansas.

May 29, 2015.

Eva Ayalla, of Mission, appellant pro se.

Michael A. Childs, of Law Offices of Daniel P. Hanson, of Overland Park, for appellee J.M. Fahey Construction Company.

Before POWELL, P.J., McANANY, J., and BUKATY, S.J.



Eva Ayalla appeals the district court's dismissal of her petition against the Unified Government of Wyandotte County, Kansas City, Kansas (the County), and the J.M. Fahey Construction Company (Fahey). On appeal, Ayalla claims the district court erred by: (1) finding that she failed to comply with the notice requirements of K.S.A.2014 Supp. 12–105b ; (2) dismissing her petition due to deficiencies in her expert witness' report; and (3) finding that her petition failed to allege inverse condemnation. We find no error and affirm.

Following a repaving project carried out by the defendants on the street in front of Ayalla's property in July 2010, Ayalla claimed that thereafter her driveway would flood after moderate rainfalls, thereby obstructing her access to the property and creating a hazard when the water would freeze. On May 12, 2012, Ayalla filed a claim for damages with the County seeking an “unknown” amount of damages and further stating that she believed the damage was “irreparable, permanent, and [would] result in a loss of value to [her] home.” When the County failed to satisfy her claim, Ayalla brought this action in the district court, alleging damages in excess of $30,000 due to the loss of her property's value.

Over the course of discovery, Ayalla attempted several times to designate an expert witness, but those efforts failed due to procedural and substantive deficiencies in her designations. After the deadline for designating an expert witness had passed, Ayalla filed another expert witness designation, and the defendants successfully moved to strike the designation as untimely and incomplete.

Thereafter, Fahey filed a motion for summary judgment which argued that Ayalla's claim against it failed as a matter of law because she could not show duty, breach of duty, or causation without expert testimony.

Ayalla then sought leave to amend her petition by: (1) expanding on her damages allegations; (2) adding claims regarding a second contractor that worked for the County on a sewer project; (3) claiming inverse condemnation of her property; (4) asserting a theory of res ipsa loquitur; and (5) seeking punitive damages. She also opposed Fahey's motion for summary judgment by generally agreeing with its statement of facts but expanding on those facts in an attempt to show that summary judgment should not be granted.

The County moved for summary judgment based on the same argument made by Fahey and also asserting that Ayalla's claim was time barred by the statute of limitations because she had failed to state the amount of her damages in her notice to the County as required by K.S .A. 12–105b.

Ayalla's response to the County asserted that she was still trying to designate an expert witness for trial. She also asserted that she had substantially complied with the notice requirements of K.S.A. 12–105b despite the fact that she could not determine her precise damages at the time she filed the notice.

At a hearing on December 10, 2013, the district court gave Ayalla 7 days to get a report from her intended expert that addressed the standard of care the defendants were required to meet and any claimed deviation from the standard. Her proposed expert's initial report only addressed causation. The district court also ordered Ayalla to revise her proposed amended petition to exclude any claims regarding a second contractor and ordered her to refile her motion seeking leave to amend.

On December 16, 2013, without seeking leave to amend as the court had ordered, Ayalla filed a second amended petition which excluded claims regarding the second contractor and additionally alleged diminution of property value, a constitutional taking, breach of fiduciary duty, a violation of the Kansas Open Records Act, and inverse condemnation.

At an initial hearing on the summary judgment motions, held December 20, 2013, the district court conditionally granted the defendants' motions, but it allowed Ayalla 7 more days to get an amended report from her proposed expert addressing the standard of care and the defendants' deviation therefrom. The court also warned Ayalla that any report which did not address those points would result in the dismissal of her petition, as she could not show negligence without that evidence.

On December 26, 2013, Ayalla filed an amended report from her proposed expert which opined that the defendants did not meet the standard of care necessary for the repaving project, but the report failed to set out the standard of care or to show how the defendants deviated from that standard. Fahey immediately asked the district court to confirm summary judgment based on the report's deficiencies. Fahey also argued that the report was flawed because the proposed expert drew his conclusions from a survey that would be inadmissible hearsay at trial, as Ayalla had failed to designate the surveyor as a witness at trial.

After hearing arguments at a hearing conducted on February 24, 2014, the district court granted summary judgment as to both defendants and dismissed Ayalla's petition with prejudice because she did not comply with K.S.A. 12–105b by stating the amount of her damages before filing suit against the County, and she failed to timely and adequately comply with K.S.A. 60–226 by designating an expert witness to opine on the applicable standard of care of each defendant and how each defendant breached that standard.

Ayalla moved the court to reconsider its decision, and the district court denied the motion after a hearing. She also moved the district court for a new trial, and that motion was summarily denied.

Ayalla's first argument on appeal asserts that the district court erred by dismissing her claims against the County for lack of compliance with the notice requirements found in K.S.A.2014 Supp. 12–105b(d). She maintains that she substantially complied with the requirement by asserting that her damages were “loss of value to [her] home.”

When the contents of the purported notice pursuant to K.S.A.2014 Supp. 12–105b(d) are uncontroverted, whether the notice substantially complied with the requirements of that statute is a question of statutory interpretation over which we exercise de novo review. Compliance with the written notice requirements is a prerequisite to filing a petition seeking relief in the district court, and failure to comply precludes such relief. Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 774, 304 P.3d 1239 (2013).

K.S.A.2014 Supp. 12–105b(d) states, in pertinent part:

“Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.” (Emphasis added.)

When considering whether a notice substantially complies with the requirements found in K.S.A.2014 Supp. 12–105b(d), the Kansas Supreme Court has held that “substantial compliance means” “ “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” “ “ “ 297 Kan. at 775 (quoting Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 [2009] ). Further,

“the question of compliance is not based upon a ‘mechanical counting’ of information addressing each enumerated category in the statute. Instead, notice is sufficient if it gives the municipality what it needs for a ‘full investigation and understanding of the merits of the claims advanced.’ [Citations omitted.] This is achieved when the notice advises the municipality of the time and place of the injury, affords the municipality an opportunity to ascertain the character and extent of the injury sustained, and allows for the early investigation and resolution of claim disputes. [Citation omitted.]” Sleeth v. Sedan City Hospital (Sleeth II), 298 Kan. 853, 865, 317 P.3d 782 (2014).

Here, Ayalla submitted a claim for damages to the County on May 12, 2012. Question 4 on the form requested the amount of damages sought, and Ayalla responded, “unknown.” In an attached letter dated May 7, 2012, wherein...

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