Flanigan v. City of Leavenworth, 54275

• Decision Date: 14 January 1983
• Docket Number: No. 54275,54275
• Citation: 232 Kan. 522,657 P.2d 555
• Parties: Gary F. FLANIGAN, Appellant, v. CITY OF LEAVENWORTH, Appellee.
• Court: Kansas Supreme Court

Page 555

657 P.2d 555

232 Kan. 522

Gary F. FLANIGAN, Appellant, v. CITY OF LEAVENWORTH, Appellee.

No. 54275.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

1. What constitutes such failure to prosecute as to warrant a dismissal pursuant to K.S.A. 1981 Supp. 60-241(b) must be determined by the circumstances of each particular case.

2. An appeal may be dismissed for failure of the appellant to diligently prosecute the proceeding.

3. K.S.A. 44-1011 instructs the district court to hear appeals from the KCCR by trial de novo. These proceedings are nevertheless still in the nature of a judicial review of the KCCR order and are limited to those issues fairly raised in an application for rehearing before the commission.

4. In an appeal from a district court order dismissing a complaint brought pursuant to the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., it is held: the trial court erred in (1) holding the action was barred by K.S.A. 60-513, the two year statute of limitations, and (2) dismissing the action for failure to prosecute.

Roger W. Lovett, Topeka, argued the cause and was on the brief for appellant.

Robert D. Beall, Leavenworth, argued the cause and was on the brief for appellee.

HERD, Justice:

This is a civil rights action. This appeal brings the case before us for a second time. It arises from a district court order dismissing the action as barred by the statute of limitations and for lack of prosecution. We reverse.

Gary Flanigan, a black student at K.U., obtained a short-term summer job in 1971 from the Leavenworth Recreation Commission (LRC). Flanigan was terminated after working approximately four days which was short of the term for which he was hired. He filed a complaint with the Kansas Civil Rights Commission (KCCR) against the LRC alleging racial discrimination in employment practices in violation of K.S.A. 44-1001 et seq. The LRC was created in 1948 as a joint enterprise pursuant to K.S.A. 12-1901 et seq. The complaint was investigated and a public hearing held thereon in June 1973 from which the hearing examiner ruled in favor of Flanigan. The examiner's findings of fact and conclusions of law were filed November 10, 1973, finding Flanigan should recover damages in the amount of $5,196.41. On December 1, 1973, the KCCR filed its order adopting the examiner's report.

Meanwhile, the City and school district agreed to abolish the LRC with the City taking over its functions. A city ordinance was adopted November 27, 1973, and published three days later. On December 14, 1973, LRC filed a motion for rehearing of the case with KCCR. Before the motion was acted upon LRC filed notice of appeal to the district court on January 15, 1974. On February 9, 1974, the KCCR filed a motion in the district court to set the case for trial.

In June of 1974 counsel for the LRC filed a motion to dismiss the action on the grounds that the Leavenworth Recreation Commission no longer existed. The KCCR disputed this claim and the court held a hearing concerning it. In April of 1975 the district court filed a memorandum opinion treating the motion as one for summary judgment and sustaining it. The court concluded that the LRC ceased to exist on November 30, 1973, when the ordinance was published and that there was no authority to hold the City liable for any of the LRC's responsibilities. The KCCR appealed.

In a unanimous opinion written by Commissioner Foth the Supreme Court reversed. Flanigan v. Leavenworth Recreation Commission, 219 Kan. 710, 549 P.2d 1007 (1976). (Flanigan I.) First, the court stated, summary judgment was improper because the controlling fact, whether the LRC had been abolished, was disputed. The court held the statute under which the City had purported to act, K.S.A.1973 Supp. 12-1912, required an agreement between the City and the school district before the LRC could be abolished. It was up to the City, the court stated, to show evidence of this agreement.

Further, the court held, even if the LRC had been legally dissolved, that simple fact did not void all its outstanding obligations. Thus, if the LRC was abolished the City of Leavenworth was its legal successor.

The Supreme Court then provided the district court with some very specific instructions:

"On remand, then, the trial court should first ascertain whether the Leavenworth Recreation Commission has been abolished. If it has not, the proceeding can be continued in its name (and if necessary its assets can be traced to the transferee city). Assuming it has been abolished, at least de facto, the court should entertain favorably a motion to substitute the city under K.S.A.1975 Supp. 60-225(d ). In either event the trial court will then be in a position to consider the appeal on the merits, under the guidelines established in Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197." 219 Kan. at 717-18, 549 P.2d 1007.

The Supreme Court's opinion was filed May 8, 1976. Despite the Court's clear mandate no further action regarding the case was taken until, incredibly, April 1, 1980. At that time the Leavenworth City Attorney filed a motion for an order substituting the City for the LRC. The KCCR did not oppose the motion and it was granted April 11, 1980.

In July of 1980 the City filed a motion to dismiss based on the "failure of the complainant to prosecute the action pending in this court." In a supporting brief the City relied upon K.S.A. 60-513, claiming that statute "requires an action of this nature to be initiated within two years." The City also claimed it was entitled to a jury trial on all issues.

In an opinion filed January 16, 1981, the district court denied the City's motion to dismiss, stating:

"[I]n reviewing the record, this court finds that the determination of the abolishing of the Leavenworth Recreation Commission was not actually made by the trial court until the entry of its Order on April 11, 1980. Under this reasoning, even if the respondents are correct in setting out the operation of 60-513 and 60-225(d), the statute would not have been tolled until the entry of the Journal Entry on April 11, 1980."

The Court did, however, grant the City's request for jury trial.

Undaunted, the City convinced the district judge to reconsider his decision. After thinking about the matter for almost one year the judge changed his mind, in an opinion filed February 22, 1982. First, he held the City was not entitled to a jury trial but granted the City's motion to dismiss. The complainant's action against the City, he held, was barred by K.S.A. 60-513, the statute of limitations.

The following portion of the district court's opinion is helpful to show the legal difficulties under which the judge was laboring:

"It is my decision to modify the earlier memorandum opinion based upon the affidavit and agreement attached to the City's Motion to Modify. It is my opinion that the Statute of Limitations was tolled either by the date of the resolution, November of 1973, or by the actual notice of the change of parties which I believe the Commission received in the Court of Appeals. Under either date, the Commission made no attempt to substitute parties, and its cause is therefore barred by the Statute of Limitations, Gatewood v. Bosch, 2 Kan.App.2d 474, at page 476 . The argument that this dismissal now places the Commission in the position that it was in before the City obtained its Stay Order is of no merit. The statute requires a trial de novo. The applicable law of procedure remains in effect and the Commission's cause of action is dismissed within a two-year period of time based upon my finding that it is barred by the Statute of Limitations and the reasoning of the Kansas Court of Appeals in Gatewood."

The KCCR has appealed this determination.

In order to adequately discuss the issue before the court it is important to understand the reasoning employed by the trial court in reaching its decision that the action should be dismissed because it was barred by the statute of limitations.

The district court believed there was "some burden on an administrative body to move a case to final determination in order to support its orders." Thus, according to the trial judge, after the LRC appealed the case to the district court the KCCR was under a duty to pursue the matter to a hearing. Evidently, this remained true even after the Supreme Court remanded with instructions to the trial court to hold a hearing on the disputed factual issue of whether the LRC had been abolished.

The basis of the district court's decision appears to be that once the LRC was abolished the lawsuit involving that agency was over and the statute of limitations on a new action against the City began to run. Since the district court found the LRC was abolished in November of 1973 the KCCR had until November of 1975 to substitute the City as a party. K.S.A. 60-513. The Commission did not do this and as such any new action involving the City of Leavenworth was barred by 60-513, the two-year statute of limitations.

Initially, there are two things about the trial court's opinion which are suspect. First, the judge was under an obvious misconception about the meaning of the word "tolled." As noted above he held the "Statute of Limitations was tolled either by the date of the resolution, November of 1973, or by the actual notice of the change of parties ...." According to Black's Law Dictionary 1736 (3rd ed. 1933), "To toll the statute of limitations means to show facts which remove its bar of the action." Apparently the trial judge thought the statute of limitations was "tolled" when it began to run.

Second, the trial court's reliance on the affidavit and agreement between the City and school board as the basis for its decision to hold the statute of limitations required dismissal is misplaced. The same agreement was provided to the court when the City first filed its motion to dismiss in July of 1980. Thus, the...