King v. Pimentel, 71604

• Decision Date: 24 February 1995
• Docket Number: No. 71604,71604
• Citation: 20 Kan.App.2d 579,890 P.2d 1217
• Parties: Jerry KING, Appellant, v. Ralph PIMENTEL, Howard Uhl, Bobby Dale Collier, and The City of Topeka, Kansas, Appellees.
• Court: Kansas Court of Appeals

Page 1217

890 P.2d 1217

20 Kan.App.2d 579

Jerry KING, Appellant, v. Ralph PIMENTEL, Howard Uhl, Bobby Dale Collier, and The City of Topeka, Kansas, Appellees.

No. 71604.

Court of Appeals of Kansas.

Feb. 24, 1995.

Syllabus by the Court

1. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. K.S.A. 60-215(a).

2. The effect of including new affirmative defenses when answering a third amended petition is akin to amending a previous pleading. A trial court has discretion to permit or deny the new defenses when ruling upon a motion to strike.

3. Under the facts of this case, it was not error for the trial court to permit the defendants to assert a statute of limitations defense for the first time when answering plaintiff's third amended petition.

4. Under the Kansas Tort Claims Act, a governmental entity's liability for the negligent or wrongful acts or omissions of its employees, while acting within the scope of their employment, is the rule rather than the exception.

5. The legislature intended written notice of a claim under K.S.A. 12-105b(d) to be a prerequisite for bringing an action under the Kansas Tort Claims Act against municipal employees who caused injury or damages to another while acting within the scope of their employment.

6. If the rejection period of a notice of claim filed pursuant to K.S.A. 12-105b(d) extends beyond the end of the statute of limitations period, the statute of limitations is extended by the amount of time that elapses between the filing of the notice of claim with the municipality and its rejection. The length of the extension of the statute of limitations will vary from case to case, but the longest possible extension of the statute of limitations would be 120 days.

7. Under the facts of this case, if the plaintiff's prosecution for violation of the mechanical code of the City of Topeka was wrongful, it was the result of a random act for which prior process was impracticable. The post-deprivation remedy of a state tort claim for malicious prosecution is the appropriate avenue for redress and the trial court did not err in denying plaintiff's 42 U.S.C. § 1983 (1988) claim.

8. That a state or governmental entity applies a law to one person and not to another does not, in itself, constitute a denial of equal protection of the law. It must also be shown there was an element of intentional or purposeful discrimination.

Keith Renner, of Barnett, Yockers & Renner, P.A., Wakarusa, for appellant.

Rene M. Netherton, Topeka, for appellee Ralph Pimentel.

David Plinsky and Neil Roach, Chief of Litigation, City of Topeka, for appellees City of Topeka, Howard Uhl, and Bobby Dale Collier.

Before BRISCOE, C.J., BRAZIL, J., and RICHARD W. WAHL, District Judge Retired, Assigned.

RICHARD W. WAHL, District Judge Retired, Assigned:

Jerry King filed this action against Ralph Pimentel, Howard Uhl, Bobby Dale Collier, and the City of Topeka (City), alleging, inter alia, abuse of process, malicious prosecution, and a claim under 42 U.S.C. § 1983 (1988). King appeals from the trial court's order granting summary judgment in favor of the defendants on all claims.

The facts are relatively simple. Jerry King is a licensed mechanical contractor in the City. On March 21, 1988, King contracted with Drycleaning Equipment Company of Irving, Texas, (DECO) to supervise the installation of mechanical systems, including a commercial boiler, at the Hygienic Cleaners construction project in Topeka.

Ralph Pimentel worked for the City as a mechanical inspector in March 1988 in the building inspection department, and Howard Uhl and Bobby Dale Collier were Pimentel's supervisors. On March 8, 1988, Pimentel issued a stop work order at the Hygienic construction site because DECO was not licensed to perform mechanical construction in Topeka. In response, DECO hired King to oversee the construction as a licensed mechanical contractor.

King alleges he talked with Pimentel about the Hygienic project before he began work there and Pimentel assured him there were no mechanical problems at the site. After he began working on the Hygienic project, King discovered a boiler flue DECO had installed prior to March 21, 1988, was not in compliance with the mechanical code. Pimentel later stated that he knew a problem existed with the boiler flue prior to March 21, 1988.

King claims he attempted to correct the problem, but when DECO would not cooperate, he turned to the City for help. King contacted Pimentel and several other City building inspectors to request the City to use its enforcement power against DECO to force DECO to comply with the City's mechanical code.

On April 6, 1988, Pimentel issued a violation notice to DECO. The notice cited DECO for the improper boiler flue. The mechanical code required metal chimneys like the boiler flue to be made of 10-gauge or thicker steel. The boiler flue at the Hygienic site was only 20-gauge steel.

Lewis Golden, owner of the Hygienic project, contacted the mayor of Topeka concerning the problems he was having with the building inspection department. The mayor, or an assistant, contacted employees in the building inspection department to inquire about the mechanical problems at the Hygienic site.

DECO did not correct the problem, and King continued to seek help from the City. On May 16, 1988, Pimentel issued another violation notice, this time citing King for the boiler flue problem. This second notice also indicated an official complaint had been filed in municipal court.

It is totally unclear what resulted from the violation notice issued to DECO. It appears to have simply been ignored. On June 9, 1988, a criminal complaint was filed in municipal court charging King with a violation of the City's mechanical code. On October 28, 1988, King was convicted after a bench trial. On January 30, 1989, the municipal court imposed a fine on King as a penalty for the conviction, which was later reduced.

King appealed his conviction and sentence to the district court. On June 1, 1989, an order dismissing the charge against King was filed in district court. The record is unclear why the charge was dismissed.

King filed a written notice of his claim against the City on May 7, 1990, pursuant to K.S.A. 12-105b(d). The City did not respond within 120 days. On September 28, 1990, King commenced this action in the district court. In that petition and in his three amended petitions, King sought recovery of damages for abuse of process, malicious prosecution, tortious interference with prospective business relations, intentional infliction of emotional distress, and loss of consortium. In addition, King made due process and equal protection claims under 42 U.S.C. § 1983. Each of the claims for relief arose out of events related to King's work at the Hygienic site and his prosecution for violating the mechanical code.

On January 7, 1993, the trial court granted summary judgment in favor of all the defendants on King's claims for abuse of process, malicious prosecution, tortious interference with prospective business relations, and intentional infliction of emotional distress. King subsequently agreed to forgo the claim for loss of consortium. On April 4, 1994, the trial court granted summary judgment in favor of all the defendants on King's equal protection and due process claims.

The rules concerning summary judgment have been stated many times by the Kansas appellate courts. These rules are succinctly stated in Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994):

"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, ... 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 opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."

The trial court granted summary judgment to defendants on King's claims for abuse of process and malicious prosecution after finding those claims barred by the applicable statutes of limitations. King claims that the defendants did not properly plead an affirmative defense based upon the statute of limitations and, therefore, should not be entitled to summary judgment based upon that defense.

A defense based upon a statute of limitations is an affirmative defense, and the burden of pleading and proving its applicability rests on the defendant. Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). K.S.A.1993 Supp. 60-208(c) requires a defendant to affirmatively plead a defense based upon the statute of limitations in the answer. The defendants' first summary judgment motion was based primarily on a statute of limitations defense. However, when the motion was filed, none of the defendants' pleadings included a statute of limitations defense. The defendants did include a statute of limitations defense in their answers to King's third amended complaint, which was filed after their motion for summary judgment was filed but before the motion was heard and decided by the trial court. King filed a motion to strike the statute of limitations defense from the defendants' answers to his third amended complaint. The trial court denied that motion.

King...