Duncan v. Martin

1

Robert Paul Duncan and Denise Sue Duncan, Appellants, v. David Bryan Martin, Dave Bruner, Richard Zingre, Randy Nichols, Jolynne Mitchell, Cindy Bartelsmeyer, Cheryl Adamson, Jeanie Parker, Rhonda Dunn, and City of Fort Scott, Kansas. Appellees.

No. 125,853

Court of Appeals of Kansas

September 15, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Bourbon District Court; ANDREA PURVIS, judge. Opinion filed September 15, 2023.

Robert Paul Duncan and Denise Sue Duncan, appellants pro se.

Andrew D. Holder, of Fisher, Patterson, Sayler &Smith, LLP, of Overland Park, and Phillip D. Albrecht and Kenton E. Snow, of Rouse Frets White Goss Gentile Rhodes, P.C., of Leawood, for appellees.

Before COBLE, P.J., GARDNER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM

Appellants Robert and Denise Duncan owned the Beaux Arts Centre (the Centre), an historic building in Fort Scott, Kansas. In February 2020, they brought a tort claim against several officials of the City of Fort Scott (the City) asserting that the officials negligently and fraudulently determined the Centre was required to comply with a fire code "footprint." The district court dismissed this first petition without prejudice finding that the court lacked subject matter jurisdiction because the Duncans did not substantially comply with the notice requirements of K.S.A. 12-105b(d). The Duncans appealed the dismissal, and a panel of this court affirmed the district court's decision. Duncan v. Zingre No. 123,091, 2021 WL 4032864, at *1-3 (Kan. App. 2021) (unpublished opinion), rev. denied 315 Kan. 968 (2022) (Duncan I).

While the Duncans' petition for Supreme Court review of Duncan I was pending, they filed a second petition in district court, bringing similar claims based upon substantially the same factual allegations as in their first lawsuit. The district court dismissed the second petition for failure to state a viable claim, finding the Duncans' claims were barred by the statute of limitations. The Duncans now appeal raising multiple issues. However, after careful review of the record on appeal and the applicable law, we likewise find the Duncans' claims are time-barred and affirm the district court's dismissal. The Duncans filed their K.S.A. 12-105b(d) notice more than two years after their claims accrued, and the savings statute, K.S.A. 60-518 does nothing to save their untimely claims.

FACTUAL AND PROCEDURAL BACKGROUND

More detailed facts regarding the contention between the Duncans and the City are detailed in this court's opinion in Duncan I, 2021 WL 4032864, at *1-3. Essentially, the Duncans owned the historic Beaux Arts Centre and were told by the City Manager in 2015 that they could proceed with renovations to the Centre without needing to obtain a fire code "footprint." This "'code footprint' is 'a building and life safety code compliance document that contains both graphic and narrative information and that meets the requirements of the Kansas Fire Prevention Code. K.A.R. 22-1-7(a)(1)." 2021 WL 4032864, at *1. The Duncans allege that, based upon this assurance from the City Manager, they spent the next couple of years renovating the building.

The Duncans claim that in 2017, the City adopted an update to the building codes, but their building should have been grandfathered in as complying with earlier versions of the code. The Duncans contend that Dave Bruner, of the City Fire Department, "set about using the [updated code] like a club on many building owners." In January 2018, an architect inspected the Centre on behalf of the City to assess code compliance. During a meeting between Mr. Duncan and City officials on February 14, 2018, the City provided Duncan with a letter outlining the inspector's evaluation, which identified multiple issues with the building that must be corrected for the occupants' safety. The letter told the Duncans they had 30 days to provide a plan to accomplish the required changes outlined in the evaluation. The Duncans then closed the Centre to the public on February 16, 2018.

Within days following the closure, the City Manager met the Duncans at the Centre, but the group was unable to come to an agreement on required changes to the building. The Duncans complained that there were errors in the City's footprint and the City failed to understand the applicable building codes. The Duncans attended several city commission meetings to voice their concerns and claimed several public officials gave incorrect or inaccurate information to the local newspaper about the footprint dispute.

After the Duncans' complaints to the City were unsuccessful, and the Duncans and City officials failed to reach a compromise, the Duncans filed the first petition (Duncan I) on February 5, 2020, against eight defendants: (1) City Manager Dave Martin; (2) City Deputy Fire Chief Dave Bruner; (3) City Commissioner Randy Nichols; (4) City Commissioner Cindy Bartelsmeyer; (5) City Commissioner Cheryl Adamson; (6) City Commissioner Jean Parker; (7) Fort Scott Mayor JoLynne Mitchell; and (8) Richard Zingre, the architect who inspected the Duncans' building on behalf of the City. In their petition, the Duncans claimed negligence and fraud. This first petition made no reference to whether the Duncans complied with K.S.A. 12-105b(d).

All eight defendants eventually filed or joined in a motion to dismiss Duncan I, essentially arguing the district court lacked subject matter jurisdiction over the case because the Duncans had not complied with the notice requirements of K.S.A. 12-105b(d) as required by the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The district court granted the motion, finding that K.S.A. 12-105b(d) applied, it was undisputed that the Duncans did not comply with the notice requirements of K.S.A. 12-150b(d), and this failure deprived the district court of subject matter jurisdiction. Duncan I was dismissed without prejudice.

The Duncans timely appealed the district court's decision pro se. A panel of this court affirmed the district court's decision, finding that the district court did not err in dismissing the case for lack of subject matter jurisdiction. Duncan I, 2021 WL 4032864, at *1.

The Duncans then petitioned for review by our Supreme Court. Around the same time, the Duncans filed a second petition in the district court on September 15, 2021 (Duncan II). The new petition named the same eight defendants from Duncan I, plus one additional former City building official, Rhonda Dunn. In the Duncan II petition, the Duncans stated that their "original suit was dismissed without prejudice, therefore [they] now bring" causes of action, including-as in Duncan I-claims of fraud and negligence. The City official defendants in Duncan II jointly moved to stay proceedings in the district court because our Supreme Court had not issued a ruling on the review of Duncan I, and as that case was not yet final, it could affect the proceedings of the second petition in Duncan II. Although the stay was granted, the Supreme Court soon issued an order denying the petition for review, and the mandate was issued on April 7, 2022, for Duncan I.

After Duncan I was concluded by the mandate, the defendants in Duncan II moved to dismiss the case. After a hearing on the motion, the district court dismissed the Duncans' second petition, finding that the Duncan's claims were barred by the statute of limitations. The district court found that

"the act that was fraudulent here was the defendants allegedly knowingly 'imposing an errant [code footprint] upon the plaintiffs and their building, in order to deprive the [Duncans] of their ability to use the property for lawful purposes.' The negligent action occurred when the City of Fort Scott allowed its employees to impose the erroneous code footprint."

The district court found that the earliest the Duncans knew about the imposition of the code footprint was in 2018, so that is when the timeline began to run for the statute of limitations. The district court noted that the substantial injury triggering the limitations period was the Duncans' closing of the building.

The Duncans timely appealed.

THE DISTRICT COURT DID NOT ERR IN DISMISSING THE CASE AS UNTIMELY

On appeal, the Duncans present three primary claims: (1) Their right to a jury trial was violated when the district court dismissed Duncan II; (2) the district court erred by finding their claims were barred by the statute of limitations; and (3) the district court failed to address the defendant's criminal offenses they claim occurred and the corresponding statutes as evidence in determining the case. They also secondarily claim the district court erred by failing to reprimand the City's counsel for a variety of alleged errors. On our review, we find the dismissal of Duncan II was proper based on the statute of limitations; therefore, we find all other issues moot.

Applicable Standard of Review

"Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review." Jayhawk Racing Properties v. City of Topeka, 313 Kan. 149, 154, 484 P.3d 250 (2021). When reviewing such a dismissal, this court must accept as true any facts alleged by the plaintiff, along with any reasonable inferences which may be drawn from those facts. Hill v State, 310 Kan. 490, 500, 448 P.3d 457 (2019). Although we must accept the Duncans' description of what happened this does not mean we are required to "'accept conclusory allegations on the legal effects of events the [Duncans have] set out if these allegations do not reasonably follow from the description of what happened.'" See Ripley v. Tolbert, 260 Kan. 491, 493, 921 P.2d 1210 (1996).

We ultimately decide this case on its timeliness,...