Stone v. City of Kiowa, s. 78399

Decision Date12 December 1997
Docket NumberNos. 78399,78400,s. 78399
Citation950 P.2d 1305,263 Kan. 502
Parties, 134 Lab.Cas. P 58,296, 4 Wage & Hour Cas.2d (BNA) 523 Larry Wayne STONE and Clarence Rex Miner, Appellants, v. CITY OF KIOWA, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Rules for summary judgment are stated and applied.

2. In entering summary judgment, the district court is required by Supreme Court Rule 165 (1997 Kan. Ct. R. Annot. 180) and K.S.A. 60-252 to state the facts and legal principles controlling the court's decision.

3. In an action by police officers to recover compensation for "on-call" time against defendant city, the record is examined and it is held that the district court did not err in (1) granting the city's motion for summary judgment and (2) refusing to impose sanctions against the city.

Alan C. Goering, of Goering and Slinkard, Medicine Lodge, argued the cause, and Robert W. Slinkard, of the same firm, was with him on the brief, for appellants.

Alan L. Rupe, of Morrison & Hecker, L.L.P., Wichita, argued the cause, and Kelly J. Johnson, of the same firm, was with him on the brief, for appellee.


Larry Wayne Stone, chief of police for the City of Kiowa (the City), and Clarence Rex Miner, a Kiowa police officer, filed separate suits against the City, alleging breach of implied employment contracts and seeking overtime compensation for hours spent off duty but "on call." In each case, the district court entered summary judgment in favor of the City and denied the plaintiff's request for sanctions against the City for its conduct during discovery. The appeals of Stone and Miner from the district court's decisions were consolidated.

Stone and Miner filed essentially identical petitions against the City in Barber County District Court, alleging violations of "Federal and State statutes, including, but not limited to, the Federal Fair Labor Standards Act [FLSA]" and seeking compensation for uncompensated on-call time. Only the numbers of hours and amounts sought by the plaintiffs differed. The City removed the actions to the United States District Court for the District of Kansas. In that court, the parties agreed that plaintiffs' FLSA claims should be dismissed with prejudice and that the petitions should be amended to strike "Federal and" from the phrase "Federal and State statutes." With the elimination of any federal claims, the United States District Court remanded the cases to Barber County District Court.

Plaintiffs' amended complaints alleged that they were compensated for 160 hours of duty each month but not compensated for the time they were on call rather than on official duty. They alleged that they were required to be on call and that their freedom was severely restricted during that time. They sought compensation for time spent on call for the second half of 1990, 1991 through 1994, and the first half of 1995--a total of 5 years. Stone alleged that he had served 11,865 hours on call during that period, that his rate of pay for overtime was one and one-half times the regular rate, and that he was owed $201,211.92. Miner alleged that he had served 10,044 hours on call, that his rate of pay for overtime was one and one-half times the regular rate, and that he was owed $152,575.44. The official duty time during those 5 years would have been 9,600 hours. In other words, plaintiffs allege that they spent more time on call than on duty.

The legal basis for plaintiffs' claims was alleged to be the City's personnel rules and regulations, which provided for compensation for authorized overtime work at the rate of one and one-half times regular pay. Each plaintiff alleged that "defendant's personnel rules and regulations form a contract between plaintiff and defendant, which has been breached by defendant." In addition, the plaintiffs alleged that the City's failing to compensate them for on-call time violated unspecified state statutes. In its answers, the City denied all material allegations.

Each plaintiff filed a motion for default judgment and/or sanctions against the City. They complained that they were directed to attend a city council session where the city attorney was present and the subject was on-call procedures, that their attorney was not notified, that they were denied the right to be represented by counsel, that their request to videotape the session was denied, and that this session amounted to an attempt to informally depose the plaintiffs.

The City filed motions for summary judgment against Stone and Miner. The City argued, among other things, that the Kansas Minimum Wage and Maximum Hours Law (KMWMHL) does not cover law enforcement personnel, that there was no express contract between the City and plaintiffs, that its Personnel Rules and Regulations did not constitute an implied contract between the City and plaintiffs, and that, even if it did, there is no provision for compensating on-call time.

The district court's memorandum opinion granting the City's motions for summary judgment is terse:

"The Plaintiffs' actions, whether based on an express contract theory or on an implied contract theory or on the provisions of the Kansas Minimum Wage and Maximum Hours law, K.S.A. 44-1201 et seq., must fail. The Defendant's uncontroverted facts are not effectively controverted by the Plaintiffs.

"In addition, if there were a basis for these actions, the Defendant would not be liable because the on-call hours claimed by Plaintiffs are not compensable.

"Armitage v. City of Emporia, Kansas, 982 F.2d 430, Gilligan v. City of Emporia, Kansas, 986 F.2d 410, and Burnison v. Memorial Hospital, Inc., 820 F.Supp. 549, are determinative of these cases. The on-call time, even if it existed, was not so onerous or restrictive so as to make the Defendant liable to pay overtime pay to Plaintiffs.

"The court adopts the Defendant's statement of facts and legal reasonings as if fully set out herein."

The district court denied plaintiffs' motions for sanctions. The following rationale was offered: "The mere fact that litigation is pending between the parties does not eliminate or suspend the Kiowa City Council's responsibility to oversee and supervise the Kiowa Police Department."

Additional facts will be set out as necessary to the discussion of each issue.

The plaintiffs challenge the district court's granting of summary judgment in favor of the City of Kiowa.

"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, 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 opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact." Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).

Supreme Court Rule 141(a) (1997 Kan. Ct. R. Annot. 169) requires a moving party to set out the uncontroverted contentions of fact upon which it relies. Subsection (b) requires an opposing party to designate which of the moving party's factual contentions it controverts and to provide for each controverted contention a "concise summary of conflicting testimony or evidence."

In this case, the district court did not believe that the City's contentions were "effectively controverted by the Plaintiffs." Appellants contend that the district court's statement indicates that it made "a credibility determination," which is improper because "[i]t is not within the trial court's jurisdiction to decide credibility or to weigh evidence when making a decision regarding a summary judgment motion." Appellants further contend that the district court's entry of summary judgment against them "could be reversed for failure of the trial court" to set out the controlling issues of fact and law citing In re Marriage of Case, 18 Kan.App.2d 457, 856 P.2d 169 (1993). Supreme Court Rule 165 (1997 Kan. Ct. R. Annot. 180) provides, in part: "In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision." The City's position is that the trial court's adopting its statements of facts and conclusions of law satisfies the requirement and permits meaningful appellate review. The record does not indicate that the plaintiffs objected to the court's findings of fact and law. In Scharfe v. Kansas State Univ., 18 Kan.App.2d 103, 110-11, 848 P.2d 994, rev. denied 252 Kan. 1093 (1992), the Court of Appeals responded to a similar complaint:

"Scharfe did not object to the trial court's findings at the trial court level and her failure to do so precludes appellate review of this issue. See Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 368-69, 598 P.2d 188 (1979); Burch v. Dodge, 4 Kan.App.2d 503, 507, 608 P.2d 1032 (1980).

"The trial court's memorandum decision incorporated the ALJ's award and satisfies the requirements set forth in K.S.A. 60-252 and Rule 165 (1991 Kan. Ct. R. Annot. 126). This issue has no merit."

There is nothing inherently wrong with a trial court's adopting a party's findings and conclusions in their entirety as long as they had been individually considered, but it is the sort of shorthand that would be susceptible to abuse. Thus, although not a practice to be encouraged, it is not, standing alone, a violation of Supreme Court Rule 165 or K.S.A. 60-252.

The City included 35 separately numbered paragraphs of contentions of fact in its memorandum in support of the motion for summary judgment. In their responses, Stone and Miner...

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3 books & journal articles
  • A Practitioner's Guide to Summary Judgment Part 1
    • United States
    • Kansas Bar Association KBA Bar Journal No. 67-12, December 1998
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    • United States
    • Kansas Bar Association KBA Bar Journal No. 89-6, August 2020
    • Invalid date
    ...33 (1993); Montana Bar Ethics Opinion 940430 (1994). [40] Rule 4.2, KRPC, Comment [4] (emphasis added). See also, Stone v. City of Kiowa, 950 P2d 1305 (1997)(communication with represented party about other matters permitted); United States v. Ford, 176 F.3d 376 (6th Cir. 1999)(communicatio......
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