Finlay v. Finlay

• Decision Date: 25 June 1993
• Docket Number: No. 68914,68914
• Parties: Kenneth and Juanita FINLAY, Appellants, v. Robert FINLAY, Appellee.
• Court: Kansas Court of Appeals

Page 183

856 P.2d 183

18 Kan.App.2d 479

Kenneth and Juanita FINLAY, Appellants, v. Robert FINLAY, Appellee.

No. 68914.

Court of Appeals of Kansas.

June 25, 1993.

Review Denied Sept. 29, 1993.

Syllabus by the Court

1. K.S.A. 2-3201 et seq. does not prohibit nuisance actions. It does, however, protect against nuisance actions where: (1) the operator has been conducting agricultural activities on farmland; (2) the operation conforms with all federal, state, and local laws; and (3) the operation has been established prior to the inception of the conflicting nonagricultural activities.

2. The protection from nuisance claims contained in K.S.A. 2-3201 et seq. is inapplicable where a change in use has occurred on the land used for agricultural purposes. Where there has been a change in use of the agricultural property, and the use of the nonagricultural property has not changed, the requirement that the agricultural activity predate the nonagricultural activity is not met.

3. Where K.S.A. 2-3201 et seq. is inapplicable, nuisance claims as they relate to farmland must be resolved by applying traditional rules governing nuisance claims. Such rules are stated and applied.

4. Invasion of privacy is actionable where there is: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; or (4) publicity that unreasonably places another in a false light before the public.

5. The essence of claims for unreasonable intrusion upon seclusion is that an individual's right to be left alone is interfered with by a defendant's physical intrusion, or by an intrusion of the defendant using his or her sensory faculties. Liability for the intrusion does not require publication of the plaintiff's private affairs; however, it does require that the defendant place himself or herself physically, or by 6. The general rule in Kansas is that the law infers some damage, without proof of actual injury, in every case where there has been a trespass. In an action of trespass, the plaintiff is always entitled to at least nominal damages, even when plaintiff was actually benefited by the act of the defendant.

means of his or her senses, within plaintiff's zone of privacy.

Keith Renner, Lee R. Barnett, and Lori L. Yockers, of Law Office of Lee R. Barnett, Wakarusa, for appellants.

Marian M. Burns and Patrick G. Walsh, of Burns, Burns, Walsh & Walsh, P.A., Lyndon, for appellee.

Before BRISCOE, C.J., LARSON, J., and DAVID J. KING, District Judge, Assigned.

DAVID J. KING, District Judge Assigned.

Kenneth and Juanita Finlay (plaintiffs) appeal from an order granting Robert Finlay (defendant) summary judgment on all of their claims and dismissing their cause of action.

The parties are relatives and neighbors. Robert is the nephew of Kenneth and Juanita. A county road separates the properties of the parties by approximately 50 feet. The properties are in rural Osage County.

The farmstead on which Kenneth and Juanita reside was originally occupied by Kenneth's grandfather. They have lived in their present house since 1948 or 1949.

Robert purchased 120 acres directly east of his aunt and uncle's farmstead in 1981. He purchased the property from Harold Widau.

For simplicity and clarity, we will refer to the parties as plaintiffs and defendant. Plaintiffs' claims against the defendant relate to defendant's use of his property, which they contend constitutes a nuisance and an invasion of plaintiffs' privacy. Plaintiffs also assert a claim for trespass.

When defendant purchased his property, it had a holding pen and shed located directly across the road from plaintiffs' house. The previous owner had raised cattle and used the pen for feeding and working his cattle. The cattle were otherwise allowed to roam over a larger pasture area. After defendant acquired the property, he made improvements to the 1.8-acre pen and uses it to feed approximately 50 head of cattle. He keeps his cattle in the pen from November through May.

Plaintiffs contend the smell created by defendant's cattle feeding operation constitutes a nuisance and invasion of their privacy. They seek injunctive relief for the nuisance and damages for the invasion of their privacy. In addition, plaintiffs contend that defendant allowed cattle to stray upon their property and request injunctive relief and damages for this trespass.

The trial court granted the defendant summary judgment on all of the plaintiffs' claims, finding: (1) that plaintiffs' claims for nuisance were barred by K.S.A. 2-3201 et seq.; (2) that plaintiffs' claim for invasion of privacy did not state a cause of action; and (3) that defendant was entitled to summary judgment on plaintiffs' trespass claim because plaintiffs failed to establish they sustained damages as a result of defendant's livestock straying onto their property.

STANDARD OF REVIEW

"Summary judgment is proper where 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 judgment as a matter of law. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment." Falls v. Scott, 249 Kan. 54, Syl. p 1, 815 P.2d 1104 (1991).

The appellate court has unlimited review of the district court's conclusions of law. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).

COMPLIANCE WITH SUPREME COURT RULE 141

Plaintiffs contend the trial court erred by hearing defendant's motion for summary judgment without allowing them the full 21-day response period allowed by Rule 141 (1992 Kan.Ct.R.Annot. 124).

The record shows defendant's motion for summary judgment was filed with the trial court on August 11, 1992. The certificate of service shows it was mailed the same day. The hearing on the motion for summary judgment was held on September 1, 1992. Plaintiffs filed their response the same day the motion was heard.

Pursuant to Rule 141, as interpreted by Munkers v. Pomerenke, 11 Kan.App.2d 569, 573, 730 P.2d 360 (1986), a district court does not have the power to hear a motion for summary judgment until the full 21-day period found in the rule has passed. "However, the district court does have the power to rule on the motion provided the party opposing it has responded or has agreed to a disposition before the expiration of the twenty-one-day period." 11 Kan.App.2d at 573, 730 P.2d 360.

The record shows that plaintiffs filed their response to the motion for summary judgment on the day it was heard and stated in court they were prepared to proceed. The trial court did not err in hearing the motion for summary judgment.

Plaintiffs also contend the trial court erred in granting summary judgment because defendant's memorandum in support of his motion was not in compliance with Rule 141. Plaintiffs contend that defendant's contentions of uncontroverted fact contained more than one fact in each separately numbered paragraph. Each factual contention within a paragraph did contain references to the record in the case. The trial court concluded the form of defendant's motion sufficiently complied with Rule 141. We agree.

The plaintiffs further contend that since some paragraphs of contentions of uncontroverted fact were completely controverted by the plaintiffs, and others controverted in part, defendant's motion did not contain "uncontroverted facts" and, therefore, did not comply with Rule 141. Plaintiffs apparently misunderstand the requirement of Rule 141. It provides that the moving party must set out "uncontroverted contentions of fact." (Emphasis added.) The fact a party, in response to the motion, controverts some of the contentions does not necessarily mean Rule 141 has not been complied with.

NUISANCE CLAIM

Plaintiffs request injunctive relief for defendant's maintenance of an ongoing nuisance. The trial court found K.S.A. 2-3201 et seq. precluded plaintiffs' claim as a matter of law.

The legislature enacted K.S.A. 2-3201 et seq. in 1982. It recognized that people and activities not previously associated with agriculture were moving into traditionally agricultural areas. This raised the possibility that there would be numerous nuisance lawsuits filed to stop or limit the use of the land. In an effort to keep the agriculture industry from being crowded out by suburban or industrial expansion, the legislature enacted Article 32, titled "Protection of Farmland and Agricultural Activities."

K.S.A. 2-3201 states:

"It is the declared policy of this state to conserve and protect and encourage the development and improvement of farmland for the production of food and other agricultural products. The legislature finds that agricultural activities conducted on farmland in areas in which nonagricultural uses have moved into agricultural areas are often subjected to nuisance lawsuits, and that such suits encourage and even force the premature removal of the lands from agricultural uses. It is therefore the purpose of this act to provide agricultural activities conducted on farmland protection from nuisance lawsuits."

Although not prohibiting nuisance actions, K.S.A. 2-3202 establishes that agricultural activities are presumed not to be a nuisance if conducted in a manner consistent with good agricultural practice and The language of K.S.A. 2-3202 indicates that a defendant must satisfy three conditions to be protected by the statute: (1) The operator must be conducting agricultural activities on farmland; (2) the operation must conform with all federal, state, and local laws; and (3) the operation must have been established prior to the inception of the conflicting nonagricultural activities. Note, Agricultural Law:...