Brick v. City of Wichita

• Decision Date: 10 July 1965
• Docket Number: No. 44109,44109
• Citation: 195 Kan. 206,403 P.2d 964
• Parties: Ellen J. BRICK, Individually, and Ellen J. Brick, as Guardian of the Estate and Person of Robert J. Brick, a Minor, both doing business as Brick's Men's Wear, Appellants, v. CITY OF WICHITA and the Urban Renewal Agency of Wichita, Appellees.
• Court: Kansas Supreme Court

Page 964

403 P.2d 964

195 Kan. 206

Ellen J. BRICK, Individually, and Ellen J. Brick, as Guardian of the Estate and Person of Robert J Brick, a Minor, both doing business as Brick's Men's Wear, Appellants, v. CITY OF WICHITA and the Urban Renewal Agency of Wichita, Appellees.

No. 44109.

Supreme Court of Kansas.

July 10, 1965.

Syllabus by the Court

1. Where a motion for summary judgment is sought, the provisions of K.S.A. 60-256(c) authorize the judgment to be rendered forthwith 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.

2. Where a petition and an answer joining issues have been filed and the defendant thereafter files a motion for summary judgment, together with supporting affidavits, and the plaintiff files a counter affidavit keeping the issue framed by the pleadings alive, the proceeding is not converted to a trial by affidavits, and the trial court is unauthorized to make findings of fact. When there is a good faith dispute over the facts, the parties must be afforded a trial at which the evidence is presented and the live facts determined.

3. Ordinarily a motion for summary judgment should not be granted so long as pretrial discovery remains unfinished.

4. Where a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court with respect to material issues which are not clearly shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. It must be shown conclusively that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law.

William P. Higgins, Wichita, argued the cause and was on the briefs for appellants.

Ronald H. Rogg, Wichita, argued the cause and was on the briefs for appellee Urban Renewal Agency of Wichita.

John Dekker, Wichita, was on the briefs for appellee City of Wichita.

SCHROEDER, Justice.

This is an action by the plaintiffs against the City of Wichita and The Urban Renewal Agency of Wichita, based upon their action in connection with the Urban Renewal Civic Center Project R-19 of the City of Wichita. In their petition the plaintiffs pray for temporary and permanent injunctions against the defendants, an order setting aside the resolution declaring the urban renewal project area (which includes the plaintiffs' property) to be slum, blighted, deteriorated or deteriorating, and for judgment against the defendants in the amount of $125,000.

[The proposed Urban Renewal Civic Center Project R-19 in Wichita consists of an area, with a few exceptions for buildings, bounded by the Big Arkansas River on the west, Main Street on the east, Waterman on the south, and Douglas Avenue on the north. It also includes a smaller area lying to the north between Douglas Avenue and First Street adjoining the other area.]

The defendants filed an answer to the petition and a motion for summary judgment, which the trial court sustained. The plaintiffs have duly perfected an appeal.

The question to be determined is whether the trial court properly sustained the motion for summary judgment.

Our decision reversing the judgment of the lower court on the ground that it erred in sustaining the appellee's motion for summary judgment was announced on the 19th day of May, 1965, and may be found in Brick v. City of Wichita, 195 Kan. 1, 403 P.2d 189.

The appellants' claim for damages against the City of Wichita was dismissed in the trial court and no appeal has been taken from such order.

It was conceded by counsel for the appellees in arguing the case that the appellants' petition states a cause of action. The petition charges in substance that the Board of City Commissioners of Wichita, Kansas, on the 6th day of March, 1962, adopted a resolution declaring property occupied and operated by the appellants as slum, blighted, deteriorated and deteriorating. This finding with respect to the area in the project was a prerequisite for obtaining federal funds for use in the urban renewal project under the terms and conditions of federal statutes on urban renewal. The petition charged such finding was arbitrary and capricious and without foundation in truth and in fact. The latter allegations were denied by the answer of the appellees.

Attached to the motion for summary judgment filed by the appellees were affidavits setting forth the chronological order of steps taken by the Urban Renewal Agency of Wichita in regard to the project, and the chronological order of steps taken by the City Commission of the City of Wichita in adopting the resolution. These documents disclosed a portion of the minutes of the City Commission meeting at which the civic center project area was determined to be slum, blighted, deteriorated or deteriorating. Background information available to the commission and used as a basis for its action in making such determination was set forth in various exhibits.

Among the exhibits was the report of E. J. Waits, the city building inspector who conducted the survey which the City Commission used in making its determination.

The appellants in resisting the motion for summary judgment filed an affidavit made by E. J. Waits, which in material part reads:

'That he was on the 29th day of January, 1962, a building inspector employed by the City of Wichita, and had been so employed for some eight (8) years; that he conducted a survey of the Urban Renewal Civic Center Project Area at the request of the Urban Renewal Agency and his superiors in the Building Inspection Office, of the City of Wichita and that Affiant issued the Letter Report dated January 29, 1962, directed to Robert Des Marteau, Urban Renewal Agency, which appears as part of the Minutes of the City Commission Meeting of March 6, 1962, in which Meeting the City Commission passed the resolution designating the Urban Renewal Civic Project Area and the land contained therein as 'slum, blighted, deteriorated or deteriorating'.

'Affiant further states that prior to the time said Letter Report was issued, Affiant received instructions to conduct the inspection of the buildings located within the Urban Renewal Project Area, and was instructed by Glen Lytle and Robert Des Marteau to find the designated area and the buildings within said Area to be substandard and not conforming to the Code, without regard as to whether said buildings were sound from an engineering standpoint. These instructions came on two different occasions prior to the inspection which resulted in the Report referred to herein.

'Affiant further states that said Report is not correct insofar as ratings of structural soundness and economic rehabilitation of existing structures are concerned; that Affiant found on his inspection, from an engineering standpoint, all but five of these buildings [106 properties, mostly commercial, in the project] were sound structurally, and were structurally safe for all intents and purposes, considering the occupancy and use to which they might be put or were being put at the time of the inspection.

'Affiant further states that the rating classifications given to him by his superiors in connection with his inspection required the sub-standard ratings because according to instructions, if the buildings were non-conforming as to recent provisions of the Building Code, each building was considered to be in poor condition, and any rehabilitations or corrections necessary in said structure were based upon the new Code and not in consideration of sound engineering practice.

'Affiant further states that the inspection he was ordered to make was ex post facto and a sham inspection, to be made for the purpose of designating the particular area being inspected as being 'slum, blighted, deteriorated and deteriorating' for qualification under Urban Renewal standards, and not made for the purpose of determining if the area was in fact substandard, slum or blighted. Affiant further states that the area is not blighted, slum or deteriorated as these terms are customarily used in relation to other zones in downtown Wichita.

'Affiant further states that Building Code requirements are not a valid basis for determining structural stability, deterioration, slum or blight.

'Affiant further states that even recently constructed buildings where building code exceptions have been agreed to by the City which keep said structure from strict compliance with the Building Code, would have to be rated as 'poor' under the standards given to him to rate the area designated for said Urban Renewal Project.'

The appellants also filed an affidavit of Robert H. Nelson, an attorney, who stated that his client, Walker Brothers, Inc. was informed by the urban renewal agency that property owned by it on Water Street, within the designated area, could be excluded from or included in the project area; that it would be up to Walker Brothers.

Subsequent to the filing of the motion for summary...