Condemnation of Land for State Hwy.

• Court: Kansas Supreme Court
• Writing for the Court: Luckert
• Citation: Condemnation of Land for State Hwy., 123 P.3d 731 (Kan. 2005)
• Decision Date: 09 December 2005
• Docket Number: No. 93,113.,93,113.
• Parties: In the Matter of The CONDEMNATION OF LAND FOR STATE HIGHWAY PURPOSES. Deb Miller, Secretary of Kansas Department of Transportation, Appellant, v. Stranger Valley Land Company, L.L.C., et al., Appellee.

Page 731

123 P.3d 731

In the Matter of The CONDEMNATION OF LAND FOR STATE HIGHWAY PURPOSES Deb Miller, Secretary of Kansas Department of Transportation, Appellant, v. Stranger Valley Land Company, L.L.C., et al., Appellee.

No. 93,113.

Supreme Court of Kansas.

December 9, 2005.

Oswald S. Dwyer, staff attorney, Kansas Department of Transportation, argued the cause, and Sally A. Howard, chief counsel, was with him on the brief for appellant.

Jerry E. Driscoll, of Driscoll Law Office, of Russell, argued the cause and was on the brief for appellee.

Terrence J. Campbell, Jane M. Eldredge, and Terence E. Leibold, of Barber Emerson, L.C., of Lawrence, were on the brief for amicus curiae Westgate, L.C.

The opinion was delivered by LUCKERT, J.:

This is an interlocutory appeal in an eminent domain proceeding. The primary issue on appeal is whether the district court acquired subject matter jurisdiction over Stranger Valley Land Company, L.L.C.'s (Stranger Valley) appeal from the appraisers' award when it timely filed the notice of appeal but did not comply with the provisions of K.S.A.2004 Supp. 26-508 requiring the payment of a docket fee and the docketing of the appeal as a new civil action. We hold that the language of K.S.A.2004 Supp. 26-508, specifying that a party may appeal within 30 days of the appraisers' award "by filing a written notice of appeal with the clerk of the district court and paying the docket fee of a new court action," makes the timely filing of the notice of appeal and payment of the docket fee jurisdictional requirements. The manner in which the case is docketed, however, is not jurisdictional.

The underlying facts are not disputed. On January 16, 2004, the Kansas Department of Transportation (KDOT) filed an eminent domain proceeding in Russell County District Court seeking to acquire real property owned by Stranger Valley for highway purposes. The district court approved the petition and appointed three appraisers. On April 16, 2004, the appraisers filed their report fixing the amount of compensation due Stranger Valley. KDOT deposited the stated compensation with the clerk of the district court.

On May 14, 2004, Stranger Valley filed a notice of appeal with the district court. The notice of appeal carried the same caption and case number as the original eminent domain action filed by KDOT. Stranger Valley did not pay a docket fee when it filed the notice of appeal.

KDOT filed a motion to strike Stranger Valley's notice of appeal arguing that Stranger Valley failed to perfect its appeal in accordance with K.S.A.2004 Supp. 26-508 because it had not docketed the appeal as a new civil action or paid the required docket fee. KDOT also argued that the district court lacked jurisdiction to extend the time for properly perfecting the appeal.

After a hearing, the district court ruled in favor of KDOT. Stranger Valley filed a motion asking the district court to reconsider its decision. The district court granted the motion and found the payment of the docket fee was not jurisdictional. The district court also certified its ruling for interlocutory appeal pursuant to K.S.A. 60-2102(b); see K.S.A.2004 Supp. 60-2102(c).

The case was transferred to this court on this court's own motion pursuant to K.S.A. 20-3018(c), and this court granted KDOT's application for interlocutory appeal.

Analysis

Procedures for eminent domain proceedings, K.S.A. 26-501 et seq., are controlled by statute. See K.S.A. 26-501(a) ("The procedure for exercising eminent domain as set forth in K.S.A. 26-501 to 26-516, inclusive, shall be followed in all proceedings.") K.S.A.2004 Supp. 26-508 provides for an appeal from the appraisers' award and specifies the procedures to be followed.

As such, K.S.A.2004 Supp. 26-508 governs the district court's jurisdiction of such an appeal because Kansas courts have "only such appellate jurisdiction as is conferred by statute, pursuant to Article 3, Section 3, of the Kansas Constitution, and in the absence of compliance with the statutory rules, [a] court has the duty to dismiss the appeal." Brown v. Brown, 218 Kan. 34, 38, 542 P.2d 332 (1975). However, "[s]tatutory requirements for an appeal are not always jurisdictional." City of Wichita v. 200 South Broadway, 253 Kan. 434, 437, 855 P.2d 956 (1993). Therefore, we must interpret K.S.A.2004 Supp. 26-508 to determine what is required to perfect an appeal, i.e., which procedural steps are jurisdictional and which are not.

Interpretation of a statutory provision is a question of law subject to unlimited review. State, ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, Syl. ¶ 2, 112 P.3d 131 (2005); see City of Wichita, 253 Kan. at 436, 855 P.2d 956. Our standards for statutory interpretation are well established:

"`The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if the intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.' [Citation omitted.]" Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005).

In this case, KDOT argues that K.S.A.2004 Supp. 26-508 is plain and unambiguous in stating that the requirements to perfect an appeal are: (1) the filing of a notice of appeal within 30 days of the appraisers' award; (2) the payment of the docket fee for a new civil action; and (3) the docketing of the case as a new civil action. Stranger Valley and the amicus curiae argue that the only requirement is that the notice of appeal be filed within 30 days.

K.S.A.2004 Supp. 26-508 provides:

"If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, such party, within 30 days after the filing of the appraisers' report, may appeal from the award by filing a written notice of appeal with the clerk of the district court and paying the docket fee of a new court action. In the event the parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three days after the date of the perfection thereof. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a new civil action and tried as any other civil action. The only issue to be determined therein shall be the compensation required by K.S.A. 26-513, and amendments thereto." (Emphasis added.)

The statute was amended in 2003 to add the phrase "and paying the docket fee of a new court action" and to add the word "new" to the phrase "shall be docketed as a new civil action." L.2003, ch. 106, sec. 2. The question of whether these new requirements are jurisdictional has not been previously decided.

However, we do have guidance from an earlier decision, City of Wichita, 253 Kan. 434, 855 P.2d 956, which concerned whether the district court acquired jurisdiction of an appeal from the appraisers' award where the notice of appeal was timely filed and served on the condemner but copies of the notice of appeal were not served on all other interested parties as required by K.S.A. 26-508.

The version of K.S.A. 26-508 then in effect provided:

"`If the plaintiff, or any defendant, is dissatisfied with the award of the appraiser, he may, within thirty (30) days after the filing of the appraisers' report, appeal from the award by filing a written notice of appeal with the clerk of the district court. In the event any parties shall perfect an appeal, copies of such notice of appeal shall be mailed to all parties affected by such appeal, within three (3) days after the date of the perfection thereof.'" (Emphasis added.) 253 Kan. at 435, 855 P.2d 956.

The landowner argued that the first sentence of K.S.A. 26-508 set forth what a party must do to perfect an appeal, while the second sentence of the statute formed a requirement to be met only after an appeal has been perfected; therefore, the requirement of mailing copies of the notice of appeal was not jurisdictional. This court agreed, holding: "[P]ursuant to the unambiguous language of K.S.A. 26-508, mailing copies of the notice of appeal is not needed to perfect an appeal from the appraisers' award in an eminent domain case and therefore is not jurisdictional to such an appeal." 253 Kan. at 437, 855 P.2d 956.

Applying the same reasoning to the instant case, the requirement that an appeal from the appraisers' award be docketed as a new civil action is not necessary to perfect an appeal and therefore is not jurisdictional. The docketing requirement appears in the fourth sentence of the statute and is removed from the first sentence. Furthermore, that requirement follows the second sentence which begins with the phrase "[i]n the event the parties shall perfect an appeal," and thereby indicates all remaining provisions relate to procedures after an appeal is perfected. By contrast, the requirement that an appealing party pay the docketing fee appears in the first sentence with the requirement that a notice of appeal be filed within 30 days, a requirement which is necessary to perfect an appeal. See Brown, 218 Kan. at 37-38, 542 P.2d 332. The plain and unambiguous language of the first sentence of the statute requires two things to perfect an appeal: The filing of a notice of appeal within 30 days and the payment of the docket fee. Furthermore, these requirements precede the phrase "[i]n the event the parties shall perfect an appeal," which would indicate any previously stated requirement is jurisdictional.

Despite this clear language, Stranger Valley seeks a determination that appellate jurisdiction is never dependent upon the payment of docket fees; rather, such payment is a...