Myers v. Board of County Com'Rs of Jackson County

• Decision Date: 03 February 2006
• Docket Number: No. 92,184.,92,184.
• Citation: 127 P.3d 319
• Parties: Charles F. MYERS, Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF JACKSON COUNTY, Kansas, Appellant.
• Court: Kansas Supreme Court

127 P.3d 319

Charles F. MYERS, Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF JACKSON COUNTY, Kansas, Appellant.

No. 92,184.

Supreme Court of Kansas.

February 3, 2006.

Pantaleon Florez, Jr., of Topeka, argued the cause and was on the brief for appellant.

Teresa L. Sittenauer, of Fisher, Patterson, Sayler & Smith, L.L.P. of Topeka, argued the cause, and J. Steven Pigg, of the same firm, was on the brief for appellee.

The opinion of the court was delivered by LOCKETT, J.:

The Board of County Commissioners for Jackson County (Board) appeals the Court of Appeals' decision holding that Myers substantially complied with the notice provisions of K.S.A.2004 Supp. 12-105b by sending a claim letter and proposed petition to the county counselor. The sole issue is whether Myers complied with the notice requirements of K.S.A.2004 Supp. 12-105b.

Charles Myers was terminated from his employment in the Road and Bridge Department of Jackson County. Believing his termination was in retaliation for filing a workers compensation claim, Myers hired an attorney who sent a claim letter and proposed petition to the Jackson county counselor (county counselor). The county counselor presented the letter to the Board of County Commissioners (Board). Without a formal hearing, each commissioner reviewed and rejected the claim. The county counselor then advised Myers' attorney that the Board had denied the claim. Myers filed his petition in the district court. The Board answered and demanded summary judgment, claiming Myers had failed to comply with the notice requirements of K.S.A.2004 Supp. 12-105b(d).

At the summary judgment motion hearing, the county counselor conceded that the letter and petition complied with the content requirement of the notice of claim statute and that each member of the Board had reviewed and acted on the claim. The Board alleged that service on the county counselor was jurisdictionally fatal because 12-105b(d) requires that notice shall be filed with the clerk or governing body of the municipality.

The district court agreed that serving the notice of claim on the county counselor did not comply with the statute and granted the Board's motion for summary judgment. Myers appealed to the Court of Appeals. The majority of the Court of Appeals judges reversed the district court and remanded the matter for further proceedings. Judge Green filed a dissenting opinion. Myers v. Board of Jackson County Comm'rs, No. 92,184, unpublished opinion filed January 28, 2005, slip op. at 10, 104 P.3d 1024, 2005 WL 217178, *4. This court granted the Board's petition for review.

The Board asserts that Myers did not substantially comply with the requirements of K.S.A.2004 Supp. 12-105b(d). The Board argues that Myers was required by statute to serve notice of his claim on the county clerk or the Board, therefore, service on the county counselor was not in substantial compliance with that requirement.

Myers claims that service on the county counselor substantially complied with the notice requirements of K.S.A.2004 Supp. 12-105b(d) because the Board had actual notice of his claim, had investigated the claim, and denied the claim.

Procedurally, the matter is before this court based on the district court's grant of the Board's motion for summary judgment. We note that Myers was terminated from his employment on February 16, 1999. K.S.A. 12-105b has been amended three times since that date. However, none of the amendments are at issue in this case.

"`The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when 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. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'" State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 341, 76 P.3d 1000 (2003) (quoting Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 [2000]).

Here, the parties do not dispute the facts regarding Myers' service of notice on the Board. When there is no factual dispute, this court reviews the district court's grant of summary judgment as a question of law subject to de novo review. Stone v. U.S.D. No. 222, 278 Kan. 166, 178, 91 P.3d 1194 (2004). Resolution of this issue requires this court to interpret K.S.A.2004 Supp. 12-105b(d). Interpretation of a statute is a question of law subject to de novo review. Cummings v. City of Lakin, 276 Kan. 858, 861, 80 P.3d 356 (2003).

K.S.A.2004 Supp. 12-105b(d) sets forth the notice requirements, providing:

"Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action." (Emphasis added.)

To support its claim, the Board relies on Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan.App.2d 379, 988 P.2d 263 (1999). Zeferjohn was injured in a car accident while in the custody of the Shawnee County Sheriff's Department and brought an action against Shawnee County (County) for his injuries. Prior to filing his petition in district court, Zeferjohn served a notice of claim pursuant to K.S.A.1998 Supp. 12-105b on the county counselor. Although there is no indication that the County was prejudiced by Zeferjohn's failure to provide the notice to the county clerk or the County's governing body, the Zeferjohn court held that providing the notice to the county counselor did not substantially comply with 12-105b. 26 Kan.App.2d at 381, 383, 988 P.2d 263.

In reaching this conclusion, the Zeferjohn court relied on Huffman v. City of Prairie Village, KS., 980 F.Supp. 1192, 1195 (D.Kan.1997), where the plaintiff brought an action for employment discrimination against the City of Prairie Village (City) in the federal district court. The City sought summary judgment on plaintiff's outrage claim because the plaintiff had not complied with the service requirements of K.S.A. 12-105b (Furse 1991). The Huffman court noted that plaintiff had served a written notice of claim on the city attorney rather than the clerk. After considering decisions from other states which concluded that written notice to the city attorney was insufficient, (see McGuire v. Hennessy, 292 Minn. 429, 193 N.W.2d 313 [1971]; Long v. Knoxville, 62 Tenn.App. 665, 467 S.W.2d 309 [1970]), the Huffman court concluded that the language in 12-105b was clear and did not authorize serving notice on the city attorney. Thus, the notice to the city attorney did not substantially comply with 12-105b. 980 F.Supp. at 1206.

In addition, the Zeferjohn court relied on Mowery v. Kansas City, 115 Kan. 61, 62, 222 Pac. 126 (1924), and Cook v. Topeka, 75 Kan. 534, 536, 90 Pac. 244 (1907), interpreting the statutory predecessors to 12-105b, which required written notice to be provided to the city clerk. However, in each of these cases, the plaintiffs provided a written notice of their claims to the city clerk as required by statute. The issue addressed in these cases was whether the plaintiffs provided adequate details of the claim in the notice, not the failure to serve the notice on the city clerk. Mowery, 115 Kan. at 62, 222 P. 126; Cook, 75 Kan. at 536, 90 P. 244.

Although Zeferjohn appears to be directly on point, the Court of Appeals declined to apply the rationale of Zeferjohn, stating:

"We do not view Zeferjohn as requiring affirmance in this case. First, the early 20th century Kansas Supreme Court cases upon which Zeferjohn relied predated the modern statutory provision which permits substantial compliance rather than strict compliance. The federal district court case that Zeferjohn found persuasive, Huffman v. City of Prairie Village, KS, ..., was itself based on some of those early Kansas cases, e.g., Dechant [v. City of Hays, 112 Kan. 729, 212 Pac. 682 (1923)]."

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"The Zeferjohn opinion acknowledged that the authorities on the subject were not...