Quivira Crossing Shops v. City of Lenexa

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NOT DESIGNATED FOR PUBLICATION

No. 119,341

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

QUIVIRA CROSSING SHOPS, INC.,
Appellant,

v.

CITY OF LENEXA, KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed May 17, 2019.
Affirmed.

Michael J. Fleming, of Kapke Willerth, LLC, of Lee's Summit, Missouri, for appellant.

Peter C. Simonsen, assistant city attorney, and MacKenzie C. Harvison, deputy city attorney, for
appellee.

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

PER CURIAM: This appeal arises from a dispute over the interpretation of an
easement granting the City of Lenexa, Kansas, the right to "lay, construct, maintain, alter,
repair, replace, and operate a storm sewer and surface drainage" on property owned by
Quivira Crossing Shops, Inc. (QCS). Decades after the easement was executed, a storm
sewer pipe under the property owned by QCS began to deteriorate, which caused a
sinkhole to develop in the parking lot. As a result, QCS filed a petition in district court
(1) seeking a judgment declaring that the City is the party responsible to maintain, alter,
repair, or replace the deteriorated section of the metal storm sewer pipe located within the
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utility easement and (2) alleging the City breached the terms of the easement between it
and QCS by refusing to maintain and repair the metal storm sewer pipe contained within
the utility easement. The parties filed cross-motions for summary judgment, and the
district court ultimately granted judgment in favor of the City. QCS appeals, claiming
that the district court erred by finding the language of the easement clearly and
unambiguously granted the City permissive rights to maintain, alter, repair, or replace the
storm sewer pipe without imposing an affirmative duty to repair and maintain it. QCS
also claims that even if the district court correctly determined that the easement imposes
no affirmative duty on the City to repair or maintain the pipe, it erred by failing to make
further findings and apply the common law to determine that the City, as the beneficiary
and holder of the easement, was obligated to repair the pipe. Finding no error, we affirm
the decision of the district court.

FACTS

The facts in this case are undisputed. In the early 1980s, an entity known as 87th
& Quivira Associates, L.P. (the Developer) began to develop a tract of land located on
the northeast corner of 87th Street Parkway and Halsey Street in Lenexa, Johnson
County, Kansas (the Property). Prior to development, a natural drainage ditch bisected
the Property draining water from properties to the east and south. As part of the
development, the Developer installed a 36-inch wide corrugated metal storm sewer pipe
(the Pipe) in the natural drainage ditch underneath the Property. Like the natural drainage
ditch, the Pipe bisects the Property from north to south and allows storm water to drain
from properties to the east and south. In conjunction with installation of the Pipe, the
Developer executed a utility easement (the Easement) in favor of the City "to lay,
construct, maintain, alter, repair, replace, and operate a storm sewer and surface drainage,
together with the right of ingress and egress over and through [the Property]."

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In 1992, QCS purchased a fee simple interest in the Property. The Property
contains a retail strip mall that is made up of three separate buildings, all of which are
connected by a large, surface level parking lot. The Pipe runs underneath the parking lot.
In March 2017, a sinkhole began to develop in the parking lot. QCS determined the cause
of the sinkhole to be deterioration of the Pipe that runs underneath the surface of the
parking lot.

QCS ultimately filed a petition in Johnson County District Court seeking: (1) a
declaratory judgment that the clear and unambiguous language of the easement imposes a
duty on the City to repair the Pipe and (2) a judgment that the City's failure to fix the Pipe
constituted a breach of contract, thereby entitling QCS to compensatory damages.
Following discovery, the parties filed competing motions for summary judgment. A
hearing was held, and the district court took the matter under advisement.

A few weeks after the hearing, the district court ruled from the bench that the clear
and unambiguous language of the Easement granted permissive rights but imposed no
duty on the City to repair or fix the Pipe within the Easement. Because the Easement
imposed no duty on the City, the district court found no breach of contract. The district
court granted the City's motion for summary judgment and denied the opposing motion
submitted by QCS. The district court based its ruling solely on the language of the
Easement and did not consider any of the extrinsic evidence presented by the parties at
the prior hearing.

After issuing its ruling, the district court asked the City to submit a proposed
journal entry of judgment. It did so, and QCS timely objected. Specifically, QCS wanted
the district court's journal entry to make factual findings and apply the common law to
determine who was responsible for maintaining and repairing the Pipe. After a hearing on
the issue, the district court overruled QCS's objections and approved the City's proposed
journal entry.
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STANDARD OF REVIEW

The summary judgment standard is well established in Kansas.

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, 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. 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. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616,
621, 413 P.3d 432 (2018).

Where, as here, there is no factual dispute, appellate review of an order regarding
summary judgment is de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013).
When an appeal involves the interpretation and legal effect of a written instrument, it is a
matter of law over which appellate courts exercise unlimited review. Thoroughbred
Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1207, 308 P.3d 1238 (2013); see also
City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007) ("Regardless
of the construction given a written contract by the trial court, an appellate court may
construe a written contract and determine its legal effect.").

ANALYSIS

QCS argues the district court erred in holding that the Easement grants a right, but
not a duty, upon the City to repair the Pipe. Alternatively, QCS argues the district court
erred by failing to make findings of fact to support its common-law claim that the City's
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failure to fix the Pipe constituted a breach of contract, the contract being the Easement.
We address each of QCS's claims in turn.

By definition, an easement is an interest that one person has in the land of another.
Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 248, 787 P.2d 716 (1990) (citing
Potter v. Northern Natural Gas Co., 201 Kan. 528, 530, 441 P.2d 802 [1968]). "'[T]he
character and extent of the rights created by a grant of easement is determined by
construction of the language of the grant and by the extent of the use made of the
dominant tenement at the time of the grant.' [Citations omitted.]" Bruton, 284 Kan. at
829. If the easement's language is clear and unambiguous such that it can be carried out
as written, then rules of construction are not necessary. 284 Kan. at 829; see also
Restatement (Third) of Property: Servitudes § 4.1(1) (2000) ("A servitude should be
interpreted to give effect to the intention of the parties ascertained from the language used
in the instrument, or the circumstances surrounding creation of the servitude, and to carry
out the purpose for which it was created.").

Having set forth the applicable rules, we now consider the Easement at issue in
this case, which provides in relevant part:

"WHEREAS, the [City of Lenexa] desires an easement for the construction and
maintenance of storm sewers and surface drainage. NOW, THEREFORE, in
consideration of One and no/100 Dollars ($1.00) in hand paid and other valuable
consideration, receipt of which is hereby acknowledged, [87th & Quivira Associates,
L.P.] does hereby grant and convey unto the [City of Lenexa], its successors and assigns,
an easement to lay, construct, maintain, alter, repair, replace, and operate a storm sewer
and surface drainage, together with the right of ingress and egress over and through the
following premises in the County of Johnson and the State of Kansas, to-wit: [the
Property]."

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QCS argues the plain language of the Easement authorizing the City to maintain,
repair, and replace the storm sewer to facilitate surface drainage reflects the parties'
original intention to impose a mandatory duty on the City to do so. Specifically, QCS
asserts that if the parties intended the City's maintenance, repair, and replacement of the
storm sewer to be permissible and not mandatory, that language would be rendered
superfluous. In support of its assertion that the word "maintenance" when used in an
easement must be construed as a mandatory duty, QCS cites to our Supreme Court's
opinion in Bruton. In Bruton, the defendant owned a plot of land within the city of
Arkansas City. The property was subject to a 1935 easement in favor of the city for flood
protection. The city constructed a dike and exclusively maintained and repaired the dike
over a period of 65 years. The dike benefited the city, not the property owner. The city
wanted to replace the dike with a more modern design, and the property owner objected.
The court found the easement was unambiguous and enforceable on its face, and the city
had the right to repair and maintain the dike it constructed. 284 Kan. at 847-48.

But Bruton is factually distinguishable from the case at hand, most notably
because it deals with a city's attempt to exercise its permissive right to act under the terms
of an easement. In Bruton, unlike the facts here, the city was the entity that built the dike
in the first place and the city exclusively maintained and repaired the dike over the 65-
year period after it was built. Bruton also is legally distinguishable from the case at hand.
Specifically, the court in Bruton was not presented with, nor did it decide, any issue
regarding a duty imposed by the easement. The issue in Bruton was whether the city had
a right under the terms of the easement to replace the dike with a more modern design.
The issue in this case, however, is whether the City has a mandatory duty under the terms
of the Easement to repair a damaged Pipe, irrespective of the fact the Pipe was built by
the Property owner as part of a private development and the fact that the City had never
maintained, repaired, or otherwise dealt with the Pipe since its installation by that
Property owner.

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QCS also cites to Potter in support of its position that the parties intended the
Easement to impose a mandatory duty upon the City to maintain, repair, and replace the
storm sewer. In that case, the gas company installed a gas pipe on Potter's property. The
property was subject to a pipeline easement in favor of the gas company. The gas pipe
easement contained language stating that Potter could "use and enjoy" his land subject to
the terms and conditions of the easement. 201 Kan. at 531. The gas company agreed it
had an affirmative, ongoing maintenance obligation with regard to the gas pipe. The gas
company also agreed that the existence of the gas line exclusively benefited the gas
company.

At some point, Potter wanted to regrade his property for his own commercial
benefit. Potter claimed the language in the easement required the gas company to lower
its pipe so he could regrade the property. Specifically, Potter argued that if the gas
company did not pay to lower the gas pipe, he would be divested of his ability to use and
enjoy the property. He also argued that the gas company's duty to maintain the pipe that it
had constructed included moving the gas pipe. The Kansas Supreme Court ultimately
held the language of the easement did not create an affirmative duty on the part of the gas
company to move the gas pipe. The court held:

"To require the pipeline company to pay this [moving] expense would have the effect of
inserting an additional provision in the original grant requiring the grantee to furnish
additional consideration for the rights granted and received by it in 1950. A court may not
make an agreement for the parties which they did not make themselves." 201 Kan. at 532.

Once again, we find the facts of the case cited by QCS to be factually
distinguishable from those presented here. Unlike the facts here, the gas company was the
entity that built the gas pipe in the first place. The gas company readily acknowledged it
had an affirmative, ongoing maintenance obligation with regard to the gas pipe. The gas
company also acknowledged that the existence of the gas line exclusively benefited the
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gas company. And the issue presented for the court's decision in Potter was whether the
gas company's refusal to pay to move the gas pipe divested Potter of his ability to use and
enjoy the property. Unlike the Potter case, the ability of QCS to use and enjoy the land is
not a relevant issue here. Again, the issue in this case is whether the City has a mandatory
duty under the terms of the Easement to repair the damaged Pipe, irrespective of the fact
the Pipe was built by the Property owner as part of a private development and the fact
that the City had never maintained, repaired, or otherwise dealt with the Pipe since its
installation by that Property owner.

In sum, we affirm the district court's decision to grant summary judgment in favor
of the City based on its finding that the clear and unambiguous language of the Easement
grants a right, but not a duty, upon the City to repair the damaged Pipe. Because the
Easement's language is clear and unambiguous such that it can be carried out as written,
then rules of construction are not necessary and the district court did not err by declining
to analyze the issue of duty under principles of common law. See Bruton, 284 Kan. at
829; see also Restatement (Third) of Property: Servitudes § 4.1(1) ("A servitude should
be interpreted to give effect to the intention of the parties ascertained from the language
used in the instrument, or the circumstances surrounding creation of the servitude, and to
carry out the purpose for which it was created.").

Affirmed.

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LEBEN, J., concurring: The parties have mainly engaged in a semantic debate:
Quivira Crossing Shops contends that the plain language of the easement puts mandatory
duties on the City of Lenexa; the City contends that the easement permits it to do things
but doesn't require any City action. The reality is that the City's duties depend on factual
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context. But under the facts of our case, the City has no duty to repair a stormwater pipe
the City didn't install or maintain.

Unless parties to an easement explicitly provide otherwise, the beneficiary of an
easement (here, the City) has the ability to use the easement but no requirement that it do
so. So the obligation to repair some object within the easement area doesn't arise unless
the easement beneficiary has first made use of the easement. See Restatement (Third) of
Property: Servitudes § 4.13 and § 4.13, comment b (2000). Here, Quivira Crossing Shops
admits that its predecessor (the property developer), not the City, installed the stormwater
pipe. And with no evidence the City has done any maintenance or repair on this failing
piece of pipe, there's no duty on the part of the City to fix the problem.

So the language in this easement could result in a duty on the City—if the City
first uses the easement to its benefit. In that case, the City would have a duty to make
repairs or do maintenance based on the City's use of the easement. See Restatement
(Third) of Property: Servitudes § 4.13, comment b. Here, though, the City has done
nothing beyond inspection, and Quivira Crossing Shops hasn't claimed that the City's
inspections have in any way contributed to the sinkhole in its parking lot.

In sum, the uncontroverted evidence submitted on summary judgment showed that
the failing stormwater pipe was installed by Quivira Crossing Shops' predecessor in
ownership of the property, not the City. Unsurprisingly in this situation—in which the
City did nothing to cause the sinkhole in the parking lot—the City has no responsibility
to fix it. I therefore agree with the majority's conclusion and join in affirming the district
court's judgment.