Dutoit v. Board of County Com'rs of Johnson County, 5 and B

Decision Date15 July 1983
Docket NumberNo. 55412,No. 1,No. 5 and B,5 and B,1,55412
Citation233 Kan. 995,667 P.2d 879
PartiesPaul M. DUTOIT, Betty J. Dutoit, Dutoit Construction Co., a Missouri Corporation, and all others similarly situated, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, sitting and acting as the governing body of Blue River Sewer Sub-Districtlue River Main Sewer District; Robert C. Bacon, Johnna Lingle, and Jeffrey Hilleson, members of the Board of County Commissioners of Johnson County, and Donald J. Curry, County Clerk of Johnson County, Kansas, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. K.S.A. 19-223 provides the exclusive method by which a district court may review a judicial or quasi-judicial decision of a board of county commissioners. Concannon v. Board of Linn County Comm'rs, 6 Kan.App.2d 20, 21, 626 P.2d 798 (1981).

2. The extent to which property has received special benefits from a public improvement is a question of fact legislative or administrative in nature. Becker v. City of Wichita, 231 Kan. 322, Syl. p 2, 644 P.2d 436 (1982).

3. K.S.A. 60-907 does not grant taxpayers the right to question the legality of the corporate existence of political subdivisions or municipal corporations in actions brought to enjoin the levy or collection of taxes.

4. If the plaintiff stands by and remains passive while the adverse party incurs risks, enters into obligations and makes large expenditures, so that by reason of the change of conditions disadvantage and great loss will result to the adverse party which might have been avoided if the plaintiff had asserted his claim with reasonable promptitude, there are grounds for declining to grant relief. Kirsch v. City of Abilene, 120 Kan. 749, 751-52, 244 Pac. 1054 (1926).

5. Property rights as well as personal rights are protected by 42 U.S.C. § 1983 (Supp. V 1981). The statute provides a forum for redress for wrongful deprivation of property by persons acting under color of state law. Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 31 L.Ed.2d 424, reh. denied 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822 (1972).

Thomas E. Ruzicka, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, Chartered, Olathe, and Amelia J. McIntyre, of Watson, Ess, Marshall & Enggas, Kansas City, Mo., were on the amicus curiae brief for Robert Q. Sutherland, Agent.

Leonard O. Thomas, of Weeks, Thomas & Lysaught, Chartered, Overland Park, argued the cause, and David K. Fromme and Peggy Grant-Cobb, Overland Park, of the same firm, were with him on the briefs for appellants.

James G. Butler, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Mark W. McKinzie, of the same firm, Terry M. Roehl, Asst. County Counselor, and Lyndus A. Henry, County Counselor, Olathe, were with him on the brief for appellees.

LOCKETT, Justice:

Plaintiffs Paul and Betty Dutoit, and Dutoit Construction Company, a Missouri Corporation (Dutoits), appeal from the dismissal of their action challenging special assessments against their property in Johnson County, Kansas.

The Blue River Sewer Sub-District No. 5 (Blue River) was created under the provisions of K.S.A. 19-2704 et seq. Property owners representing more than 51% of the acreage within the sewer and taxing district petitioned the Board of County Commissioners of Johnson County, Kansas (Board) for the creation of Blue River and the building of main sewers within the district. After the preliminary plans, survey and feasibility studies were made, the Board scheduled a hearing to create the proposed district. Notice of the hearing was mailed to all the property owners within the proposed district more than ten days prior to the hearing. Notice was published once a week for two consecutive weeks in a newspaper having general circulation within the district. The Board held a public hearing on June 26, 1978, at 6:30 p.m. and the resolution creating Blue River was adopted.

The first enlargement of Blue River was made without notice and hearing as provided by statute since 100% of the property owners signed the original petition. The second enlargement was approved by resolution of the Board on July 3, 1979, after notice had been mailed to all of the property owners within the proposed addition to the district. Notice was published once a week for two consecutive weeks in the Olathe Daily News. On July 3, 1979, a resolution was adopted by the Board approving the second enlargement of Blue River. The plaintiffs claim the notice procedures of K.S.A. 19-2704 et seq. were not followed in the creation and second enlargement of Blue River. Property owned by the Dutoits was brought into the sub-district by the second enlargement.

Once construction had been completed and all the costs were ascertained, the Board assessed the property within the district. A hearing was scheduled to allow the property owners an opportunity to challenge their individual assessments. Notice of the hearing was sent, as provided by statute, 14 days prior to the hearing on January 5, 1982. Notice was also published once each week for two consecutive weeks prior to the date of hearing. At the public hearing held on January 5, 1982, the Board, by resolution, approved and adopted the assessments made under the resolution dated December 1, 1981. On January 15, 1982, the resolution was filed.

On January 26, 1982, the Dutoits filed a petition to set aside assessments relative to Blue River. The Dutoits requested the court to enjoin the assessments, enter an order setting aside the enlargement of the sewer district, and exclude plaintiffs' property from the sewer district. On February 24, 1982, defendants filed their answer to the plaintiffs' petition.

June 30, 1982, the first amended petition was filed on behalf of the Dutoits asserting their cause of action both individually and on behalf of a class of persons similarly situated. The first amended petition requested the court to set aside the entire proceedings of the Board relative to the creation of Blue River and the subsequent assessment to the landowners within the sub-district. Leave of the court to allow the plaintiffs to amend their petition was not obtained pursuant to K.S.A. 60-215(a ). august 9, 1982, defendAnts filed a motion to dismiss pursuant to K.S.A. 60-212 (b ) with a memorandum in support. October 7, 1982, the Dutoits filed a motion for leave to amend and a second amended petition containing an additional allegation of a violation of 42 U.S.C. § 1983 (Supp. V 1981). Defendants filed a subsequent memorandum alleging: (1) The plaintiffs do not have sufficient standing to challenge the actions of the Board with regard to the creation and/or enlargement of Blue River; (2) the claims of the plaintiffs were barred by the statute of limitations and laches; (3) the plaintiffs had failed to properly perfect their appeal by filing a bond pursuant to K.S.A. 19-223; (4) the plaintiffs' cause of action should be dismissed for failure to properly join additional parties; (5) plaintiffs' action could not be maintained as a class action; and (6) the plaintiffs failed to state a cause of action under 42 U.S.C. § 1983 (Supp. V 1981).

At the commencement of oral argument upon the defendants' motion to dismiss, the court acknowledged that the first and second amended petitions were on file. The court found that a preliminary hearing had not been held to determine if the plaintiffs should be allowed to amend the original petition. On December 20, 1982, the court dismissed plaintiffs' entire action for failure to state a claim for which relief could be granted. The plaintiffs appeal.

The dismissal in this case was pursuant to K.S.A. 60-212(b )(6), failure to state a claim upon which relief can be granted. The case of Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. p 2, 479 P.2d 875 (1971), states the standard for this type of dismissal:

"Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim."

The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, 430, 520 P.2d 1197 (1974). It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977).

The original petition filed by the plaintiffs seeking to enjoin the assessments and set aside the enlargement of the sewer district raises several issues.

The trial court held K.S.A. 19-223 barred the plaintiffs' petition since plaintiffs failed to execute a bond with sufficient security as required by the statute. The statute provides:

"Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant."

K.S.A. 19-223 provides the exclusive method by which a district court may review a judicial or quasi-judicial decision of a board of county commissioners. Concannon v. Board of Linn County Comm'rs, 6 Kan.App.2d 20, 21, 626 P.2d 798 (1981). The statute affords jurisdiction only...

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