Lewis v. City of Leavenworth

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NOT DESIGNATED FOR PUBLICATION

No. 115,973

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

REDIE BELL LEWIS,
Appellant,

v.

CITY OF LEAVENWORTH;
LEAVENWORTH CITY COMMISSION;
LEAVENWORTH ZONING & CODE ADMINISTRATION; et al.,
Appellees.



MEMORANDUM OPINION

Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed January 27, 2017.
Affirmed.

Redie Lewis, appellant pro se.

Michelle R. Stewart and Jennifer R. Johnson, of Hinkle Law Firm LLC, of Overland Park,
attorneys for appellees.

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

Per Curiam: Redie Bell Lewis appeals the district court's dismissal of her petition
seeking damages and an injunction to prevent the City of Leavenworth from demolishing
a rental property she owns in Leavenworth, Kansas. Finding no reversible error, we
affirm the dismissal.


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Factual and procedural background

Lewis purchased the four-unit apartment building at 724 Pottawatomie Street in
"as-is" condition, knowing it was on the City's demolition list. She stated in her petition
that over a period of 15 months, she invested over $46,000 in rehabilitating five
properties in Leavenworth and Leavenworth County, including $700 for exterior painting
of the apartment building. She stated that she was successful in removing one of the
properties from the demolition list but was forced into deeding over two other properties
to the City in an effort to halt demolition. She filed for bankruptcy during the pendency
of the district court case underlying this appeal and states that this has halted demolition
of the apartment building. See In re: Redie Bell Lewis, Case No. 16-20235 (pending).

Lewis did not indicate when she purchased the apartment building, but in March
2015, she was granted an extension of time to do the work necessary to prevent the City
from proceeding with demolition. The Commission reviewed the progress on the property
during its July 14, 2015, meeting. It found that only exterior painting and no other repairs
had been done and voted unanimously to move forward with demolition of Lewis'
property.

Within 30 days of the decision, on August 2, 2015, Lewis filed what she styled as
a "Request for Appeals Rights Guidelines or in the Alternative: Appeal Against
Demolition" with the City Clerk for service on the City Manager, the City Planner, and a
member of the City Codes Department. In it, she asked for guidelines for taking an
appeal and for a response from the City "before the time limit passes by." The City did
not respond. She filed this suit October 6, 2015, 65 days after filing her "Appeal" with the
City, and 84 days after the City Commission's final decision.

The City moved to dismiss the lawsuit. In response, Lewis filed a motion to
dismiss her damages claims without prejudice and an amended petition that sought only
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injunctive relief. The district court granted the City's motion without ruling on Lewis'
motion, finding that the court lacked jurisdiction to hear Lewis' case because the suit had
not been timely filed and other jurisdictional prerequisites had not been met.

Standard of review

The question of a party's compliance with a statute involves statutory
interpretation and thus is a question of law subject to de novo review. Sleeth v. Sedan
City Hospital, 298 Kan. 853, 863, 317 P.3d 782 (2014).

The damages claims

We first review the dismissal of Lewis' claims for monetary damages. In ruling on
the damages claims, the district court first stated that although Lewis had filed a motion
to dismiss her damages claims without prejudice, it would not rely on this ground for
dismissal because it had never ruled on that motion.

Instead, the district court found that Lewis failed to meet the "jurisdictional
prerequisite" of pleading compliance with K.S.A. 2015 Supp. 12-105b(d), which requires
a plaintiff to serve notice on a municipality before filing a suit against it for monetary
damages. We construe this notice to be a condition precedent to bringing such a lawsuit.
Tucking v. Board of Jefferson County Comm'rs, 14 Kan. App. 2d 442, 445, 796 P.2d
1055 (1990). Conditions precedent must be pled in the plaintiff's complaint. K.S.A. 2015
Supp. 60-209(c).

Our Supreme Court has held, however, that if a plaintiff timely serves a proper
notice but merely fails to plead it, a district court should not dismiss the case but should
instead grant a motion for leave to amend the pleadings. James v. City of Wichita, 202
Kan. 222, 227, 447 P.2d 817 (1968). But Lewis did not file a proper notice, as her filing
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with the City Clerk did not contain all of the elements required by the relevant statute,
K.S.A. 2015 Supp. 12-105b(d). That statute requires the notice to contain:

"(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." K.S.A. 2015
Supp. 12-105b(d).

Lewis' notice contained the first three elements, but not the last two. She did not
ask for monetary damages as required by elements (4) and (5). Instead, the relief she
sought was injunctive, to require that the City follow its ordinances concerning notice of
property code violations. Because Lewis' notice did not fulfill the requirements of section
12-105b(d), the prerequisite to the district court having jurisdiction was not satisfied, and
the district court's dismissal of her damages claims was proper. See Sleeth, 298 Kan. at
863.

To the extent Lewis may be challenging the constitutionality of the notice
requirement, her argument fails. Our Supreme Court has upheld the constitutionality of
requiring litigants to serve notice on a municipality before filing a suit against it for
monetary damages. See, e.g., Hibbs v. City of Wichita, 176 Kan. 529, 532, 271 P.2d 791
(1954). And courts have specifically found that the requirements of K.S.A. 2015 Supp.
12-105b(d), which the district court applied to Lewis, do not violate one's constitutional
rights to due process and/or equal protection. See Zeferjohn v. Shawnee County Sheriff's
Dept., 26 Kan. App. 2d 379, 380, 988 P.2d 263 (1999); Unified School Dist. No. 457,
Finney County, Kan. v. Phifer, 729 F. Supp. 1298, 1306 (D. Kan. 1990).
The claims for injunctive relief

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The district court dismissed Lewis' claims for injunctive relief as being untimely
filed. The district court applied K.S.A. 12-760(a), which states:

"(a) Within 30 days of the final decision of the city or county, any person aggrieved thereby may
maintain an action in the district court of the county to determine the reasonableness of such final
decision." K.S.A. 12-760(a).

The City Commission's final decision in this case was on July 14, 2015, but Lewis
did not file any appeal of that decision until October 6, 2015, outside of the 30-day time
limit. The time for taking an appeal of an administrative action is prescribed by statute
and is jurisdictional; thus, delay beyond the statutory time is fatal. W.S. Dickey Clay Mfg.
Co. v. Kansas Corp. Comm'n, 241 Kan. 744, 749, 740 P.2d 585 (1987). The district court
found that Lewis had actual knowledge of the time requirements for her action because
her previous case, 2015CV00145, had been dismissed on timeliness grounds.

Therefore, the district court properly dismissed Lewis' claims for injunctive relief
as untimely.

The due process claims

Lewis' brief on appeal is no model of clarity. But under Kansas law, pro se
pleadings are to be construed liberally. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639
(2010). In an abundance of caution, we address several additional claims Lewis appears
to raise. The first of these is that the district court violated her right to due process.

The fundamental elements of procedural due process are notice and a meaningful
opportunity to be heard on the matter. In re Care & Treatment of Hay, 263 Kan. 822,
831, 953 P.2d 666 (1998).

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The initial governmental action of placing the property on the demolition list
occurred before Lewis' purchase and, thus, no due process right arose for her regarding
that decision. As to the City's decision that it would not remove the property from the
demolition list, Lewis argues that she could not remedy the problems because she was not
given written notice of the violations; yet, she states that she voluntarily entered into
"Property Remediation Agreements" with the City that contained a list of tasks for her to
complete. Lewis also states in her brief that she appeared before the City Commission
more than once after buying the property; so, her right to be heard was satisfied.

Regarding notice, Lewis alleged that the City Commission failed to provide her
with the notice required by two sections of the Leavenworth Code of Ordinances
(Leavenworth Code). However, neither section applies because both sections refer to
stages prior to property being found "unsafe and dangerous" and being put on the
demolition list.

Lewis argues that the City did not comply with section 22-803 of the Leavenworth
Code, which requires the City to provide notice of nonhazardous violations, of the
available programs to help with abatement of the violations, and of the right to request an
informal review to discuss a time table and alternative solutions to remedy the violations.
Leavenworth Code Sec. 22-803. However, that chapter of the Leavenworth Code does
not apply to condemned properties having "unsafe and dangerous conditions." Instead, it
applies to properties having "non-hazardous" violations that "would not necessarily make
a home unfit for continued occupancy." Leavenworth Code Sec. 22-801. The condition of
the property when Lewis bought it was long past the stage of violating maintenance
standards, so section 22-803 of the Leavenworth Code does not apply.

Lewis also cites Leavenworth Code Section 22-704, which requires specific
notice to the owner before the city razes or repairs a structure. In relevant part, it states
that a governing body will determine at a hearing whether a structure is unsafe or
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dangerous and issue such findings by resolution. The resolution must contain the
following:

"[A statement of] a reasonable time within which the repair or the removal of such
structure shall be commenced, and a statement that if the owner of such structure fails
to commence the repair or removal of such structure within the time stated, or fails to
diligently prosecute such repair or removal until the work is completed, the governing
body will cause the structure to be razed and removed or repaired." Leavenworth Code
Sec. 22-704(c).

The City Commission complied with this statute by issuing Resolution B-2105 at its
meeting on March 17, 2015, granting extensions to Lewis and five other property
owners to do the work necessary to remove their properties from the demolition list.

At its July 14, 2015, meeting, the Commission reviewed the progress on those
six structures. A city official acknowledged that "some paint had been applied" at 724
Pottawatomie, which is consistent with Lewis' pleadings. However, the commission
found that no "repair or removal" as required by Leavenworth Code Section 22-704 had
been done on Lewis' property and voted unanimously to move forward with the
demolition of it and three other properties.

Lewis argues she was not served with notice of this decision in violation of the
requirement of Leavenworth Code Section 22-704(b). Assuming Lewis is correct, we
find any such error to be harmless because her pleadings state that she learned of that
decision the next day via the newspaper. Lewis thus had actual notice, probably earlier
than she would have if she had been personally served. Thus, the City's failure, if any,
to comply with the specific notice provision was harmless error.

Lewis also challenges the City's failure to serve her with the journal entries of
judgment following the hearings in this case and in 2015CV00145. She states that the
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"City's failure to timely serve me is the main basis for my appeal in both cases
2015CV00145 & 2015CV00345." She argues that she lost the ability to appeal case
2015CV00145 because the City did not serve her with the journal entry of dismissal until
70 days after it was signed. But this court fully considered these circumstances when we
dismissed the appeal of case 2015CV00145 and cannot reexamine them here.

As to the case underlying this appeal, 2015CV00345, Lewis timely filed her notice
of appeal in the district court on December 2, 2015, the day of the hearing, so any failure
of service is harmless. This court granted Lewis leave to docket her appeal out of time.
Thus, any due process claim is meritless.

The right to petition the government for redress of grievances

Lewis also argues that the district court violated her right to petition the
government for redress of grievances by terminating her case before discovery or a
pretrial conference was held. Further, she argues that she was entitled to proceed to trial
because she demanded a trial by jury in her pleadings.

Lewis cites no authority for either of these propositions, and we find none. Making
a demand for trial by jury does not a guarantee a trial, but assures only that in the event a
trial is held, the facts shall be determined by a jury instead of by a judge. As discussed
above, the district court did not have jurisdiction to hear the case and was compelled to
dismiss it immediately, without discovery or trial. Doing so did not infringe any of Lewis'
constitutional rights.

The need for the district court judge to recuse himself

Lewis also claims that the district court judge should have recused himself due to a
conflict of interest. During the pendency of this case in the district court, Lewis
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apparently filed a quitclaim deed that purported to deed the subject property to herself,
the district court judge, and four other public officials.

Lewis' argument that the quitclaim deed created a conflict of interest is without
merit because even assuming a conflict of interest arose, it was entirely from Lewis' own
actions. Justice does not permit one to create a conflict then seek an advantage because of
it. Cf. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014) (finding a litigant may
not invite error and then complain of the error on appeal).

The misconstrual of Lewis' petition

Finally, Lewis argues that the district court treated her petition as a "'Municipal
Court' appeal filed out-of-time" instead of as a petition for injunction. She argues this was
incorrect because the City had not brought any action against her in court. But the district
court was actually referring to her case as an appeal from the action of a municipality, not
as an appeal from a municipal court.

Lewis also seems to be complaining that the district court construed her petition as
an appeal, rather than an independent action. But her petition disputes the reasonableness
of the City's determination that her property contained unsafe structures and required
cleanup and repair beyond what she had done. Lewis thus challenges the judicial or
quasi-judicial functions of a political subdivision. Lewis was required to appeal within 30
days of the City's order and could not collaterally attack the administrative order through
an independent action. See Kirtdoll v. City of Topeka, No. 95,946, 2007 WL 570293, at
*2 (Kan. App. 2007) (unpublished opinion) (finding the district court lacked jurisdiction
because the plaintiff did not exhaust administrative remedies; he failed to appeal within
30 days of the original order to abate a property nuisance and could not collaterally attack
the administrative order through a later independent tort action); Dahl v. City of Shawnee,
No. 92,144, 2006 WL 851232, at *8-11 (Kan. App. 2006) (unpublished opinion) (finding
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the City could, after resolution, raze or remove unsafe structures if the owner failed to
"diligently prosecute" the removal or repair, so Dahl had 30 days to appeal; Dahl's failure
to exhaust administrative remedies deprived the court of jurisdiction). Here, as in Kirtdoll
and Dahl, Lewis had to appeal the City's action within 30 days.

Accordingly, the district court properly construed Lewis' petition and properly
dismissed it.

Affirmed.