Board of Com'Rs v. City of Park City

• Decision Date: 03 April 2009
• Docket Number: No. 100,157.,100,157.
• Parties: BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, Kansas, Appellee, v. CITY OF PARK CITY, Kansas, Appellant.
• Court: Kansas Court of Appeals

204 P.3d 648

BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, Kansas, Appellee, v. CITY OF PARK CITY, Kansas, Appellant.

No. 100,157.

Court of Appeals of Kansas.

April 3, 2009.

Timothy J. Finnerty and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellant.

Robert W. Parnacott, assistant county counselor, for appellee.

Before BUSER, P.J., ELLIOTT and GREEN, JJ.

GREEN, J.

After summary judgment was granted in favor of the Board of County Commissioners of Sedgwick County (Board), Park City received an extension to file a posttrial motion under K.S.A. 60-259(f). In addition, Park City moved for relief under K.S.A. 60-260(b), arguing that the trial court had improperly granted summary judgment in favor of the Board. The Board responded, arguing that the trial court had lacked the authority to extend the period to file the K.S.A. 60-259(f) motion. The trial court agreed and denied the motion. Moreover, the trial court denied the K.S.A. 60-260(b) motion. We dismiss in part for lack of appellate jurisdiction and affirm in part.

Greatly summarized, on December 21, 2006, the Board brought a lawsuit in Sedgwick County District Court challenging Park City's annexation of property. On June 8, 2007, the Board moved for summary judgment. The sole issue the Board raised in its motion was whether K.S.A.2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to give notice to the Park City Planning Commission (PCPC) that Park City intended to annex the property. The fact that Park City failed to provide the PCPC notice was not in dispute. In its summary judgment motion, the Board argued that because Park City had failed to give notice to the PCPC, Park City's annexation of the property was invalid under K.S.A. 12-530(b) and K.S.A. 2006 Supp. 12-538.

Park City responded to the summary judgment motion, arguing that the only planning commission that was entitled to notice under the applicable statutes was the Wichita-Sedgwick County Metropolitan Area Planning Commission (MAPC). The trial court ruled from the bench that K.S.A.2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to notify, not only the MAPC, but also the PCPC that it intended to annex the land. Therefore, the trial court ruled that the annexation was nullified.

After the hearing on the summary judgment motion, the City retained new counsel. Park City's new attorney entered his appearance on August 3, 2007.

On August 15, 2007, the trial court filed its journal entry granting the Board's motion for summary judgment. On August 20, 2007, Park City (with the Board's approval) made an oral motion to the trial court asking it to grant an extension of time to file a posttrial motion. The court granted the motion and extended the deadline to August 31, 2007. On August 30, 2007, Park City again (with the Board's approval) made an oral motion to the trial court asking for another extension. The court granted the motion and moved the deadline to September 4, 2007. Finally, on September 4, 2007, Park City (again with the Board's approval) made another oral motion for an extension. The trial court granted the motion and extended the deadline to September 5, 2007.

On September 5, 2007, Park City moved for relief under K.S.A. 60-259(f) and K.S.A. 60-260(b). In its motion, Park City argued that the trial court erred in its interpretation of the applicable statutes and, therefore, Park City was not required to give the PCPC notice that Park City intended to annex the property at issue. In regards to the 60-260(b) motion, Park City argued that the summary judgment order should be set aside because its previous counsel did not adequately oppose the summary judgment motion. Park City then submitted additional legal arguments and facts which it believed supported the conclusion that it was not required to give notice to the PCPC.

The Board responded on September 24, 2007, arguing that Park City's K.S.A. 60-259(f) motion was untimely filed because such a motion had to be filed within 10 days after the entry of judgment and K.S.A. 60-206(b) prohibited a trial court from extending this time period. In regards to Park City's motion being treated entirely like a K.S.A. 60-260(b) motion, the Board argued that Park City's previous attorney sufficiently argued against the summary judgment motion and that the additional facts Park City wished to now introduce had no relevance to the issue of whether the applicable statutes required Park City to notify the PCPC. Therefore, the Board argued that Park City did not make a showing of "mistake, inadvertence, surprise, or excusable neglect" that would relieve it from the summary judgment order.

The trial court denied the motions from the bench. A journal entry memorializing the trial court's ruling was filed on February 1, 2008. In its journal entry, the trial court found that based on K.S.A. 60-206(b), Park City's 60-259(f) motion was filed out of time and, as a result, had to be denied. In regards to Park City's 60-260(b) motion, the trial court stated that none of the additional legal arguments or facts changed its conclusion that K.S.A.2006 Supp. 12-520a(d)(6) and K.S.A. 12-530 required Park City to give notice to the PCPC. As a result, the trial court determined that Park City was not entitled to relief under K.S.A. 60-260(b).

On February 12, 2008, a hearing was conducted to determine whether the unique circumstances doctrine should be applied to allow Park City to file a late 60-259(f) motion. The trial court denied the motion from the bench.

Park City filed its notice of appeal on February 15, 2008.

I. Does this court have jurisdiction to review the trial court's order granting the Board's summary judgment motion?

A. Jurisdiction

Our Supreme Court in Flores Rentals v. Flores, 283 Kan. 476, 480-481, 153 P.3d 523 (2007), stated:

"Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction iterates this principle, stating the Kansas Supreme Court shall have `such appellate jurisdiction as may be provided by law.' Kansas Constitution, Article 3, § 3. The Constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited its jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. [Citations omitted.]"

Furthermore, the court stated in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 (2006), that "[p]arties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, nor can parties convey jurisdiction on a court by failing to object to its lack of jurisdiction.... Whether subject matter jurisdiction exists is a question of law over which [an appellate court's] scope of review is unlimited."

Because the right to appeal is entirely statutory, appeals must be taken in the manner prescribed by statute to invoke an appellate court's jurisdiction. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003). A timely notice of appeal must be filed within 30 days from the "entry of the judgment." K.S.A. 60-2103(a). Nevertheless, this time period can be tolled by filing (among other motions) a timely motion to alter or amend the judgment under K.S.A. 60-259(f). K.S.A. 60-2103(a). In order to be considered timely, a 60-259(f) motion must be in writing and be served and filed not later than 10 days after the entry of judgment. K.S.A. 60-207(b); K.S.A. 60-259(f); see Thomas v. Davis-Moore Datsun, Inc., 11 Kan.App.2d 622, 624, 731 P.2d 1283 (1987). K.S.A.2008 Supp. 60-206(b) clearly states that a trial court cannot extend the 10-day time period for filing a 60-259(f) motion. Once the trial court enters its order ruling on a posttrial motion, the 30-day time period for filing a notice of appeal starts running again in its entirety. K.S.A. 60-2103(a).

The trial court in this case filed its journal entry granting summary judgment on August 15, 2007. Therefore, Park City had until August 29, 2007, to serve and file a written 60-259(f) motion that would toll the 30-day time period for filing a notice of appeal. See K.S.A.2008 Supp. 60-206(a); K.S.A. 60-207(b); K.S.A. 60-259(f); K.S.A. 60-2103(a). If Park City chose not to file a timely 60-259(f) motion, then it had until September 14, 2007, to file its notice of appeal. K.S.A. 60-2103(a). Neither of those things happened in this case.

As mentioned earlier, Park City asked (with the Board's approval) for three extensions to file a 60-259(f) motion. The trial court, initially unaware that K.S.A.2008 Supp. 60-206(b) prohibited extending the time period for filing a 60-259(f) motion, granted Park City's request. Park City finally filed its 60-259(f) motion on September 5, 2007, 5 days after the deadline for filing such a motion had passed. Based on statutory rules mentioned earlier, the time period for filing a notice of appeal was never tolled; September 14, 2007, remained the deadline for filing a timely notice of appeal. As a result, we lack jurisdiction over Park City's appeal of the underlying case because it was filed more than 30 days after the trial court's entry of judgment, which is a jurisdictional requirement that cannot be waived or forfeited.

B. Unique Circumstances

Despite this conclusion, Park City argues in its brief that this court should apply the "unique circumstances doctrine" and find that it does have jurisdiction to determine the merits of the summary judgment order. Simply stated, this doctrine, which the United States Supreme Court recently disapproved in Bowles v. Russell, ...