Bunge Milling, Inc. v. City of Atchison

• Decision Date: 23 August 2013
• Docket Number: No. 108,481.,108,481.
• Citation: 310 P.3d 1064,49 Kan.App. 325
• Parties: BUNGE MILLING, INC., Appellee, v. CITY OF ATCHISON, Kansas, Appellant.
• Court: Kansas Court of Appeals

49 Kan.App. 325

310 P.3d 1064

BUNGE MILLING, INC., Appellee,

v.CITY OF ATCHISON, Kansas, Appellant.

No. 108,481.

Court of Appeals of Kansas.

Aug. 23, 2013.

Syllabus by the Court

1. In order for a city to have authority to annex property under K.S.A. 12–520(a)(1), the boundary survey of the property must be filed by the owner of the property or an agent.

2. K.S.A. 12–519(e) defines the term “platted” as “a tract or tracts mapped or drawn to scale, showing a division or divisions thereof, which map or drawing is filed in the office of the register of deeds by the owner of such tract.” If the legislature had meant to allow anyone to file a qualifying “plat” for annexation purposes, then the legislature would have omitted the words “by the owner.”

3. A land surveyor is required to file a survey under K.A.R. 66–12–1(c) (2006) and K.S.A. 74–7003(m), independent of any client's direction. However, such filing does not necessarily create an agency relationship between the surveyor and the land owner.

4. The party asserting that an agency relationship exists has the burden of proving the relationship with substantial evidence that is clear and convincing.

5. An express agency exists if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. An implied agency may exist if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person's acts as being authorized by the principal.

6. The test utilized by this court to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency, in which event the relationship may be held to exist, notwithstanding either a denial by the alleged principal or whether the parties understood it to be an agency.

7. An agency is implied if, from statements of the parties, their conduct, and other relevant circumstances, it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which, when exercised, would normally and naturally lead others to believe in and rely on the acts as those of the principal. While the relationship may be inferred from a single transaction, it is more readily inferable from a series of transactions. An agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable.

8. If a principal does not promptly repudiate an agent's unauthorized action, the action will be presumed to be ratified by the principal. The key to ratification is the principal's knowledge of the unauthorized action. Without knowledge of the action, the principal cannot ratify the act.

Patrick E. Henderson, of Henderson Law Office, of Atchison, for appellant.

Richard V. Eckert, of Topeka, and Quentin E. Kurtz, of Stumbo Hanson, LLP, of Topeka, for appellee.

Before HILL, P.J., POWELL, J., and HEBERT, S.J.

POWELL, J.

The City of Atchison (City) appeals the district court's decision setting aside its ordinance establishing the annexation of Bunge Milling, Inc.'s (Bunge) property under K.S.A. 12–520(a)(1). The City argues Midland Surveying (Midland) acted as Bunge's agent when Midland filed a boundary survey of Bunge's property with the register of deeds. As the City would only have had the authority to annex Bunge's property if the owners had filed the survey under K.S.A. 12–519(e), the filing of a boundary survey by Bunge's agent would meet this requirement. Bunge argues its property was not subject to annexation because Midland was not its agent for the purpose of filing the survey.

Because we agree with the district court that Midland was not acting as Bunge's agent when it filed a boundary survey of Bunge's property with the register of deeds, meaning that the survey had not been filed by the “owner” of such tract, we affirm the district court.

Factual and Procedural History

Bunge is the owner of four tracts of land totaling approximately 58.3 acres outside the City. Bunge hired Midland to conduct a property boundary survey of the land. The survey was completed on May 5, 2006, by Troy Hayes of Midland.

According to Bunge, the boundary survey was intended for the corporation's use to certify the boundary lines of the property and for taxation purposes. On May 12, 2006, Midland filed the boundary survey with the Atchison County Register of Deeds. Bunge never asked, directed, or expressly authorized Midland to file the boundary survey. However, a filing fee of $20 was charged, and Hayes added that $20 fee as an itemized cost onto Midland's invoice to Bunge.

Bunge claims it was unaware that the boundary survey had been filed until the City initiated the unilateral annexation action of the property in 2011. Hayes supported Bunge's claim by testifying that he had never informed Bunge that he had filed the boundary survey.

Hayes testified that he “typically file[s] all [his] surveys as a matter of professional courtesy.... [t]ypically, it's best, you know, for the surveyors that practice in the area on a regular basis to have access to that information and, you know, in the event that they would be working on an adjacent parcel or something like that.” Hayes neither received a copy of the recorded survey nor sent a copy of the recorded document to Bunge.

Hayes' affidavit and his testimony before the district court explained that he filed the boundary survey with the Atchison County Register of Deeds because such a filing was a requirement of his professional license as a Kansas land surveyor under Kansas Administrative Regulation (K.A.R.) 66–12–1. K.A.R. 66–12–1(c) (2006) adopted by reference the “Kansas Minimum Standards For Boundary Surveys and Mortgagee Title Inspections Standards of Practice” as the minimum standards for the practice of land surveying. The register of deeds for Atchison County filed the boundary survey as a “survey” in the “unplatted lands index.”

The City commenced the process of unilateral annexation by the adoption of Resolution # 2805 on April 18, 2011. K.S.A. 12–520(a)(1) provides that a city may annex land if the “land is platted, and some part of the land adjoins the city.” K.S.A. 12–519(e) defines the term “platted” as “a tract or tracts mapped or drawn to scale, showing a division or divisions thereof, which map or drawing is filed in the office of the register of deeds by the owner of such tract.” (Emphasis added.) The City relied on the survey of Bunge's property as prepared and filed by Midland.

The district court concluded that Hayes' survey constituted a “platting” of land under K.S.A. 74–7003(m), which required him to file the survey because K.A.R. 66–12–1(c) (2006), adopting the minimum standards for the practice of land surveying, has the force and effect of law. The district court held that there was “no evidence in the record that would attribute Midland's filing of the boundary survey to its principal, Bunge Milling.” The district court used the word “principal” to describe Bunge once but never specifically made a finding whether Midland was an agent of Bunge. Interpreting K.S.A. 12–519(e), the district court explained that if the legislature had meant to allow anyone to file a qualifying “plat” for annexation purposes, then the legislature would have omitted the words “by the owner.” The district court held that the City lacked authority to unilaterally annex Bunge's property under K.S.A. 12–520(a)(1) and accordingly set aside the City's annexation of the property.

Did the City Provide Enough Evidence To Establish the Existence of an Agency Relationship Between Bunge and Midland? If So, Did an Agency Relationship Exist?

The City argues that the district court incorrectly set aside its annexation of Bunge's property because Midland acted as Bunge's agent and Bunge never repudiated Midland's act of filing the survey. Conversely, Bunge argues that Midland was not its agent for the purpose of filing the survey, the City failed to prove the existence of an agency relationship between Bunge and Midland, and Midland's act of filing was repudiated and never ratified by Bunge. Answering these questions require us to interpret the relevant Kansas statutes and to determine whether an agency relationship existed between Bunge and Midland.

Standard of Review

“Interpretation of a statute is a question of law over which this court has unlimited review.” Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). With regard to statutory construction, the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).

What constitutes a principal/agent relationship and whether there is competent evidence reasonably tending to prove such a relationship is a question of law. However, resolution of conflicting evidence that might establish the existence of a principal/agent relationship is a question for the finder of fact. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992). The parties have not produced conflicting evidence; rather, they disagree on whether the given evidence tends to prove the existence of an agency relationship between Bunge and Midland. As a question of law, this court has unlimited review. Town Center Shopping Center v. Premier Mortgage Funding, Inc., 37 Kan.App.2d 1, 6, 148 P.3d 565 (2006), rev. denied 283...