Lindenman v. Umscheid
| Decision Date | 03 June 1994 |
| Docket Number | No. 69110,69110 |
| Parties | Floyd E. LINDENMAN, Elaine Lindenman, and Wood Haven Schools, Inc., Appellants/Cross-Appellees, v. Sam UMSCHEID; Kansas Department of Health and Environment and Stanley C. Grant, Ph.D., Secretary; Kansas City-Wyandotte County Department of Health and Darrell D. Newkirk, Director; and Wyandotte County Board of County Commissioners, Appellees, and The City of Kansas City, Kansas, Appellee/Cross-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., applies to all state agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.
2. In accordance with K.S.A. 77-603, the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions establishes the exclusive means of judicial review of agency action. Agency action is defined as (1) the whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function, or activity, discretionary or otherwise. Judicial review is the power of courts to review decisions of another department or level of government.
3. In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted the action to a successful conclusion.
4. K.S.A.1993 Supp. 60-513(a)(4) sets a two-year statute of limitations for an action for injury not arising under contract or not otherwise enumerated.
5. A state agency may use emergency proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate state action. It may take only such action necessary to prevent the immediate danger or to remedy the situation. After issuing an order, the state agency shall proceed as quickly as feasible to complete any proceeding required if the matter did not justify the use of emergency proceedings. K.S.A. 77-536.
6. There are two essential elements for the tort of abuse of process: the existence of an ulterior motive and an improper act in the regular prosecution of a proceeding. The statute of limitations begins to run at the time both elements have occurred and the injured party would have been able to successfully prosecute the action.
7. The following elements are required to establish a malicious prosecution claim: (1) Defendant initiated, continued, or procured the proceeding of which complaint is made; (2) defendant in doing so acted without probable cause; (3) defendant acted with malice; (4) the proceedings terminated in favor of plaintiff; and (5) plaintiff sustained damages.
8. Probable cause for instituting a proceeding exists when there are reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person in the belief that the party committed the act of which he or she is complaining.
9. When Congress created the cause of action codified in 42 U.S.C. § 1983 (1988), it did not provide a statute of limitations. The applicable statute of limitations is found in the state law cause of action that most closely compares to the facts supporting the civil rights claim.
10. Subordinate government agencies, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued. The capacity to sue or be sued run together. The statutory authority need not be express but can be implied.
11. The fact that county commissioners can be sued and can act as local boards of health does not mean that by conferring joint boards with the power of local boards, the legislature intended joint boards to have the capacity to sue or be sued. The county commissioners' capacity to sue or be sued lies in their capacity as a governing body, not because they also act as local boards of health.
12. An action is commenced at the time of the filing of a petition with the clerk of the court, if service of process is obtained within 90 days after the petition is filed. The filing of an entry of appearance has the same effect as service. K.S.A.1993 Supp. 60-203.
John H. Fields, of Carson & Fields, Kansas City, argued the cause and was on the briefs, for appellants.
Marvin G. Stottlemire, of KS Dept. of Health and Environment, argued the cause and was on the brief, for appellee KS Dept. of Health and Environment.
N. Jack Brown, of Boddington & Brown, Chtd., Kansas City, argued the cause, and Kenneth E. Holm, of the same firm, was with him on the brief, for appellees Sam Umscheid, Kansas City-Wyandotte County Dept. of Health, and Darrell D. Newkirk.
Maurice J. Ryan, Asst. City Atty., and Harold T. Walker, City Atty., were on the brief, for appellee/cross-appellant City of Kansas City, KS.
R. Wayne Lampson, County Counselor, was on the brief, for appellee Wyandotte County Bd. of County Com'rs.
The co-administrators of three Wood Haven Schools, Inc., (Wood Haven) day care centers filed an action against the Kansas Department of Health and Environment (KDHE), its secretary, the Kansas City, Kansas--Wyandotte County Department of Health (KC-WCDH), its director and one of its employees, the City of Kansas City, Kansas, (City) and Wyandotte County (County) for violation of their civil rights, malicious prosecution, and abuse of process. The defendants filed motions to dismiss and for summary judgment. The district court denied some of the motions but either dismissed or granted summary judgment to all of the defendants. Plaintiffs and defendants raised 17 issues and numerous subissues on appeal and cross-appeal. This court, on its own motion, transferred the case to its docket from the Court of Appeals.
Floyd E. and Elaine Lindenman are co-administrators of the day care centers operated by Wood Haven and licensed by KDHE and its secretary, Stanley C. Grant. KC-WCDH was a joint board of health for Wyandotte County and Kansas City, Kansas, of which Darrell D. Newkirk was the director and Sam Umscheid was an employee. The City and the County had statutory responsibility over KC-WCDH. The Lindenmans alleged that KC-WCDH and Umscheid were acting as individuals and on behalf of KDHE.
The Lindenmans and Wood Haven filed their original petition on March 11, 1991, and an amended petition on July 11, 1991. The amended petition alleged that on November 14, 1988, KDHE, without prior notice or hearing, issued an ex parte order suspending the license for one of the three day care centers based on an inspection by Umscheid on November 3, 1988. The order suspending the license was served on November 16, 1988, and resulted in the immediate closing of that day care center. The Lindenmans alleged Umscheid, for the past three years, had been "biased, prejudiced and vindictive" against Floyd Lindenman and also that Umscheid's report of his November 3, 1988, inspection consisted of many misrepresentations and gross exaggerations of fact.
Umscheid and another employee of KC-WCDH re-inspected the day care center on November 17, 1988. The center passed the re-inspection. The Lindenmans alleged that despite the results of the re-inspection, KDHE refused to lift the suspension unless the Lindenmans would: stipulate that the violations found in the first inspection existed, waive the right to appeal the final order, agree to another re-inspection, and concur that if any deficiencies reappeared KDHE would take action to oppose renewal of the license at the time of renewal. The Lindenmans stated that they refused to stipulate that the original inspection was accurate or to waive their right to appeal. They alleged that at all times, KC-WCDH knew of and ratified the acts of Umscheid and KDHE.
The Lindenmans' original petition alleged two counts of tortious conduct and one civil rights violation. Count I, the abuse of process charge, alleged the defendants misused the emergency proceedings provision (K.S.A. 77-536) of the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., and that the refusal to lift the suspension was a misuse of statutory procedures. Count II, the malicious prosecution charge, alleged that after KDHE learned the Lindenmans had refused to stipulate to the accuracy of the first inspection or waive the right to appeal, it began proceedings to revoke the day care center's license, that this action was malicious and lacking in probable cause, and that subsequent administrative proceedings resulted in a voluntary dismissal by KDHE in favor of the Lindenmans. Count III, the civil rights claim, alleged that both the abuse of process and the malicious prosecution acts of the defendants violated 42 U.S.C. § 1983 (1988) by denying the Lindenmans protection of their Fourteenth Amendment rights to due process.
Prior to trial, the district court granted relief to all of the defendants on either their motions to dismiss or for summary judgment. The district court first determined that the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., was the exclusive remedy for the Lindenmans. It found that all of the Lindenmans' claims against the defendants were barred because they had failed to file their petition within 30 days after the final agency action. The district court then ruled that if the KJRA was not the exclusive remedy for the Lindenmans, all claims against the various defendants were dismissed because (1) KC-WCDH lacked capacity to be sued; (2) Newkirk and his successor in office had not been served; (3) K.S.A.1993 Supp. 60-513, the applicable statute of limitations, barred the claims against all defendants for abuse of...
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