Bott v. State
| Decision Date | 10 November 2022 |
| Docket Number | 124,511 |
| Parties | Joseph A. BOTT, Appellant, v. STATE of Kansas and Kansas Highway Patrol, Appellees. |
| Court | Kansas Court of Appeals |
Kurt A. Harper, of Depew Gillen Rathbun & McInteer, LC, of Wichita, for appellant.
Arthur Chalmers, assistant attorney general, Bryan A. Ross, assistant attorney general, and Derek Schmidt, attorney general, for appellee State of Kansas.
Sarah E. Washburn, legal counsel, for appellee Kansas Highway Patrol.
Before Warner, P.J., Green and Hill, JJ.
Joseph A. Bott appeals after the district court dismissed his lawsuit against the State and the Kansas Highway Patrol (KHP). The district court also denied a claim that Bott filed against the Kansas Public Employees Retirement System (KPERS), who is not a party to this appeal. Bott's claims concerned the Deferred Retirement Option Program (DROP). Bott claims the district court erred in granting the motion to dismiss because it improperly applied the statute of limitations, improperly determined when his claim accrued, and improperly denied his claim against KPERS by misinterpreting statutes. We conclude that the district court did not err when it applied the statute of limitations to Bott's claim. We also conclude that the district court did not err in determining when Bott's claim accrued. Finally, we conclude that the district court did not err when it denied Bott's claim against KPERS because the district court properly interpreted the applicable statutes. As a result, we affirm the district court's dismissal of Bott's claims.
Joseph A. Bott began working for KHP in July 1984 and had been enrolled as a member of the Kansas Police and Firemen's Retirement System (KP&F) throughout his employment with KHP. In June 2016, Bott contacted an employee with KPERS and requested a retirement benefit estimate if he entered DROP.
In essence, DROP is available to KP&F members with the KHP and Kansas Bureau of Investigation who are eligible for full retirement. But instead of retiring, a given employee can elect to participate in DROP and have his or her monthly retirement benefit accumulate in a DROP account for a period of three, four, or five years—known as a DROP period—while he or she continues to work. During the DROP period, an employee does not accrue additional service time credit but can receive interest on the money in his or her DROP account if KPERS's investment returns each year meet a certain threshold. Upon retirement, the employee begins receiving his or her monthly retirement benefits, as well as a lump-sum payment for the money accrued in the DROP account over the DROP period.
After filing a retirement benefit estimate request, Bott and a KPERS employee engaged in a series of e-mails in which Bott sought to clarify questions he had about how DROP worked and how it would affect his retirement benefits if he entered a DROP program on December 1, 2016. After settling on that date, Bott applied for DROP in September 2016. Later that same month, Bott sent a letter to Major Jason De Vore. In the letter, Bott told De Vore that he wanted to enter DROP for a five-year DROP period. At the end of the month, Colonel Mark Bruce responded to Bott's letter and informed Bott that his request to participate in a five-year DROP period had been denied.
At some point afterwards, Bruce met with Bott and encouraged him to complete an application for DROP with a three-year DROP period. After Bott did so, Bruce sent another letter in October 2016 notifying Bott that his request to enter DROP with a three-year DROP period had been approved. Bruce then signed Bott's application on the Appointing Authority line in the Employer Acknowledgement section, and Lea Weishaar signed the Designated Agent line of the same section. Towards the end of that month, a KPERS employee sent Weishaar a letter confirming receipt of Bott's DROP application. The letter stated that Bott's DROP period began on December 1, 2016, and would end on November 30, 2019.
In June 2019, Bott contacted KPERS regarding his DROP period, indicating he wished to change his DROP period from three years to five years. Bott also included his previous correspondence with De Vore, Bruce, and an undated e-mail from Major Scott Harrington concerning who could participate in DROP. A few days later, KPERS responded to Bott's request and notified him that he could not change his DROP period election because the decision was irrevocable. KPERS's general counsel also sent Bott a letter explaining why he could not change his DROP period election.
In September 2019, Bott sued the State, KHP, and KPERS in district court. In brief, Bott alleged that his request to participate in a 5-year DROP period was wrongfully rejected and sought damages for an amount equal to the 24-month difference between the 3-year DROP period and the 5-year DROP period.
In November 2019, KPERS issued a final agency determination that Bott could not change his DROP period election. In December 2019, KPERS received Bott's application for DROP and monthly retirement benefits, which also indicated the DROP period had been completed. Later the same month, Bott timely appealed KPERS's final agency determination, and the district court entered an order of dismissal without prejudice regarding Bott's September 2019 petition, which allowed Bott to seek exhaustion of his administrative remedies. Shortly afterwards, KPERS notified Bott that it had received his application and confirmed his retirement date of January 1, 2020.
In November 2020, KPERS issued a final order affirming its determination that Bott could not change his DROP period election from three years to five years. The following month, Bott filed another action in district court against the State, KHP, and KPERS. In this petition, he sought judicial review of KPERS's final order under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., in count I, as well as damages from the State and KHP in count II.
The district court later granted the motion to stay discovery and proceedings regarding count II filed by the State and KHP, pending final resolution of Bott's KJRA appeal against KPERS in count I. In May 2021, the district court denied count I of Bott's petition, dismissed KPERS as a defendant, and rescinded its order staying count II of Bott's petition.
The State and KHP later moved jointly to dismiss Bott's petition regarding count II, citing the running of the statute of limitations. Initially, the district court denied the motion but later granted the motion to dismiss after the State and KHP moved jointly for reconsideration of their initial motion to dismiss.
Bott timely appeals.
As an initial matter, we note that the Legislature amended the language of K.S.A. 74-4986n(b), which now reads, in part: "A member who first elected a DROP period of less than five years may extend, with the employer's authorization, such DROP period upon making application to the system." The statutory change became effective July 1, 2021. See L. 2021, ch. 75, § 5. Bott did not raise any argument concerning the change issue in district court, which means he cannot raise it on appeal. See In re Adoption of Baby Girl G. , 311 Kan. 798, 801, 466 P.3d 1207 (2020).
Did the district court err in applying the statute of limitations?
Bott claims that the district court erred in determining the applicable statute of limitations in his action. Specifically, Bott contends that the district court erred when it concluded that K.S.A. 60-512(2) did not apply to his claim.
In its original order regarding this claim, the district court concluded:
As stated earlier, the district court did not originally grant the joint motion to dismiss filed by the State and KHP. But after the State and KHP moved jointly for reconsideration, the district court concluded that no genuine issue of material fact existed and granted the joint motion to dismiss.
Our standard of review is this: "Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review." Jayhawk Racing Properties v. City of Topeka , 313 Kan. 149, 154, 484 P.3d 250 (2021). When K.S.A. 2021 Supp. 60-212(b)(6) is used to challenge the legal sufficiency of a claim, the appellate court will view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Dismissal is proper only when the allegations in the petition clearly demonstrate the plaintiff does not have a claim. Kudlacik v. Johnny's Shawnee, Inc. , 309 Kan. 788, 790, 440 P.3d 576 (2019).
To the extent that we must interpret statutes, we exercise unlimited review because statutory interpretation presents a question of law. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. Montgomery v. Saleh , 311 Kan. 649, 654, 466 P.3d 902 (2020). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. 311 Kan. at 654-55, 466...
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