Opinion
112,025.
04-17-2015
Linda C. FOWLER, Appellant, v. Bradley E. FERRELL, a/k/a Farrell, Flora L. Martin, Rachel D. Phillips, and Orie L. McBratney, Appellees.
N. Trip Shawver, of Wichita, for appellant. Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Bradley E. Farrell. Craig Kennedy, of Kennedy & Willis, of Wichita, for appellee Rachel D. Phillips. Daniel J. Buller, of Foulston, Siefkin, LLP, of Wichita, for appellee Orie L. McBratney.
N. Trip Shawver, of Wichita, for appellant.
Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Bradley E. Farrell.
Craig Kennedy, of Kennedy & Willis, of Wichita, for appellee Rachel D. Phillips.
Daniel J. Buller, of Foulston, Siefkin, LLP, of Wichita, for appellee Orie L. McBratney.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Linda C. Fowler appeals the district court's dismissal of her personal injury lawsuit for lack of subject matter jurisdiction. The district court ruled that Fowler had not given prior notice to USD 266, which, though not named as a defendant, was the municipal employer of defendants Bradley E. Ferrell, a/k/a Farrell, Rachel D. Phillips, and Orie L. McBratney.
In making its ruling, the district court faithfully applied King v. Pimentel, 20 Kan.App.2d 579, 890 P.2d 1217 (1995), and its progeny as precedent, but while the present appeal was pending, our Supreme Court reversed King in Whaley v. Sharp, 301 Kan. 192, 343 P.3d 63 (2014). In letters to this court pursuant to Supreme Court Rule 6.09(b)(1)(A) (2014 Kan. Ct. R. Annot. 52), the parties dispute whether Whaley controls the present appeal. Because we conclude that Whaley does control the essential question presented on appeal, we reverse the dismissal of Fowler's petition and remand for further proceedings.
Factual and Procedural Background
On July 13, 2009, Fowler was involved in a traffic accident apparently involving Farrell, Flora L. Martin, Phillips, and McBratney. Almost 2 years later, on July 8, 2011, Fowler filed the present civil action seeking damages for personal injuries, medical expenses, economic loss, pain and suffering, and expenses. In her lawsuit, Fowler alleged that Farrell was employed by USD 266 and was acting in the scope of his employment at the time of the accident, but she made no allegations regarding notice to USD 266 or the employment status of the remaining defendants.
On October 6, 2011, Farrell moved to dismiss the lawsuit for lack of jurisdiction. Farrell contended that “subject matter jurisdiction is lacking because plaintiff has failed to plead compliance with the jurisdictional notice requirements of K.S.A. 12–105b.” Farrell acknowledged that Fowler was “not bringing a claim directly against USD 266 ... rather against one of its employees for conduct that occurred while he was acting in the course of his employment,” but Farrell contended that under King and its progeny, “Kansas appellate courts have made clear ... notice pursuant to K.S.A. 12–105b is a prerequisite for such a claim.” Farrell concluded that “[i]n the absence of ... an averment” that Fowler had “satisfied the notice requirements of K.S.A. 12–105b,” the case should be dismissed for lack of subject matter jurisdiction.
On October 27, 2011, McBratney joined Farrell's motion, claiming he too was an employee of USD 266 and was acting in the scope of his employment at the time of the accident. On October 28, 2011, Phillips answered in part by alleging the district court lacked “subject matter jurisdiction ... by reason of the Plaintiffs failure to comply with K.S.A. 12–105b.” On November 2, 2011, McBratney answered, again raising the K.S.A. 12–105b defense and attaching an affidavit in support.
On November 18, 2011, the district court heard the defendants' motions to dismiss. Phillips had not yet filed a motion to dismiss and did not appear. At the hearing, Fowler's counsel did not dispute that she filed the petition before giving notice to USD 266 pursuant to K.S.A. 12–105b, but he argued estoppel and substantial compliance excused the lack of notice. Fowler's counsel also argued:
“Though I believe by filing against Mr. Farrell and alleging that he was acting within the scope of his employment, that brings in the Kansas Tort Claims Act, which would be the entity substituted on his behalf. But just, I guess, for the record, we sued Mr. Farrell individually as a tortfeasor. And so we would ask that it not be dismissed as to him individually as a tortfeasor.”
In response to this last point, Farrell argued “the fact that [Fowler's counsel has] only named the individuals doesn't relieve the notice requirements ... [K.S.A. 12–105b ] notice to the municipality [is required] even when the lawsuit only names municipal employees acting within the scope of their employment.”
The district court rejected Fowler's estoppel and substantial compliance arguments. The district court stated it did not “have much choice” because “[K.S.A.] 12–105b has not been complied with .... the lawsuit was filed before the notice was given. Substantial compliance doesn't save that timing aspect of it.” The district court also rejected Fowler's argument that she had sued individual defendants and not USD 266. The district court held that USD 266 would be liable under respondeat superior, and “[K.S.A.] 12–105b gives a little special notice provision, a little special notice protection to those municipalities.”
The district court dismissed Fowler's lawsuit as to Farrell and McBratney. On November 29, 2011, Phillips moved for dismissal for the same reason. On December 8, 2011, the district court also dismissed Phillips from the litigation. Martin did not answer until June 19, 2013. On January 23, 2014, the district court entered a pretrial order governing the expected trial between the remaining two litigants. On May 15, 2014, however, the district court entered an agreed order dismissing the lawsuit with prejudice as to Martin. The agreed order announced “a full, final, and complete settlement of [Fowler's] claims against ... Martin.”
On June 12, 2014, Fowler appealed to our court from the judgments of dismissal granted to Farrell, Phillips, and McBratney.
On January 20, 2015, Farrell filed a 6.09(b) letter notifying this court of the Whaley decision. Farrell candidly acknowledged: “If Whaley had been the law at the time this case was filed, there would have been no basis for defendants' motions to dismiss.” Farrell stated, however, that “[i]t is unnecessary to analyze whether Whaley applies retroactively.” Farrell contended that “neither in the court below nor in her brief on appeal has [Fowler] made the argument raised in Whaley —that K.S .A. 12–105b does not apply to her suit because she did not name the defendants' municipal employer as a party.” Shortly thereafter, Phillips and McBratney filed 6.09(b) letters adopting or approving Farrell's letter.
On January 30, 2015, Fowler filed a 6.09(b) letter in response. She argued Whaley “is exactly [on] point” because in both cases the district court “decided the case jurisdictionally solely on the fact that notice was not given even though only the [individual] defendants were sued.” Fowler asked our court for a remand to the district court, “advising it that it does and did have jurisdiction.”
Did the District Court Have Subject Matter Jurisdiction?
This court exercises unlimited review over subject matter jurisdiction. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). It may consider subject matter jurisdiction at any time, including for the first time on appeal and on its own motion. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009). In light of Farrell's arguments in the 6.09(b) letter, we will first consider whether the issue was preserved, then whether retroactive application is at issue, and finally whether the legal analysis under Whaley controls the outcome of this appeal.
First, since subject matter jurisdiction may be raised at any time, the preservation of this particular issue in the district court is not determinative. Even if this were not the case, Farrell mistakenly contends that Fowler failed to argue below that the individual defendants were not subject to K.S.A. 12–105b. We disagree. In essence, Fowler made the argument, contending the district court should not dismiss the lawsuit because only individual defendants were sued. Farrell then responded more explicitly, arguing K.S.A. 12–105b applied to individual defendants as well, a stance the district court adopted. Moreover, Farrell cites no law requiring a party to argue in the district court that a controlling precedent is wrong to preserve the issue for appeal if that controlling precedent is reversed while the appeal is pending.
Because subject matter jurisdiction may be raised on our court's own motion, Fowler's briefing on the issue is not persuasive. See Northern Natural Gas Co. v. ONEOK Field Service Co., 296 Kan. 906, 916, 296 P.3d 1106 (2013) (An appellate court has a duty to question jurisdiction on its own initiative.). The briefing here is also distinguishable from the case cited by Farrell, Sleeth v. Sedan City Hospital, 298 Kan. 853, 317 P.3d 782 (2014). Importantly, there was no argument in Sleeth regarding the application of K.S.A. 12–105b to an individual defendant. In contrast, Fowler argued below and reprises the arguments on appeal that the statute should not apply to the individual defendants for reasons ranging from the school districts alleged knowledge of the suit, to an argument that “K.S.A. 12–105b is against public policy.” While Fowler does not argue that King was wrongly decided in her appellate brief, Farrell again does not cite law requiring her to articulate this specific argument.
Moreover, the sole purpose of a 6.09(b) letter is to “advise the court ... of citation to persuasive or controlling authority that has come to the party's attention after the party's last brief was filed.” (Emphasis added.) Supreme Court Rule 6.09(b)(1)(A) (2014 Kan. Ct. R. Annot. 53). Fowler argues Whaley in her 6.09(b) letter, thereby informing us of important Supreme Court precedent for our consideration before the docket setting. See Supreme Court Rule 6.09(b)(1)(A) (governing such letters before the first day on which a no-argument case is set). For all practical purposes, because Fowler argues in her own 6.09(b) letter that King was wrongly decided based on Whaley, the issue is properly before our court for appellate review.
Turning to the matter of the retroactivity of Whaley 's precedent, because the parties brought Whaley to this court's attention in 6.09(b) letters while this appeal was pending, any argument concerning whether Whaley provides for “retroactive application” is a matter of semantics. Our Supreme Court has indicated that the application of a new decision to a case pending on direct appeal is a prospective application, not a retrospective one. See State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013) ( “Generally, when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.”). However it is characterized, “[t]he general rule is that new opinions of our court are binding on all other future cases and all cases still pending on appeal when the new opinions are filed.” Stechschulte v. Jennings, 297 Kan. 2, 18, 298 P.3d 1083 (2013). Fowler filed her appeal on June 12, 2014, and docketed it on June 30, 2014. The Whaley opinion was filed on December 24, 2014, during the pendency of this appeal.
Is Whaley determinative of this appeal? In Whaley, lawsuits were brought against employees of a municipal hospital for treatment received there but “[t]he hospital was not named as a defendant.” 301 Kan. at 193. Because the plaintiffs had failed to comply with K.S.A. 12–105b, the district court held it lacked subject matter jurisdiction based on King, and this court affirmed for the same reason. Whaley, 301 Kan. at 201.
Upon review, our Supreme Court began by stating: “A person bringing a claim against a municipality under the Kansas Tort Claims Act (KTCA) must provide that municipality with prior written notice of the claim. [Citations omitted.]” 301 Kan. at 196. It next established that such notice is governed by K.S.A. 12–105b. 301 Kan. at 196–97. Although in King this court had required notice of suit against municipal employees based on a “ ‘broader interpretation’ “ of K.S.A. 12–105b, 301 Kan. at 199, our Supreme Court limited its analysis to the statute's plain meaning: “Nothing in the statute indicates its requirements were meant to apply to anything other than lawsuits against municipalities themselves.” 301 Kan. at 201.
Accordingly, the Supreme Court held, “the jurisdictional bar in K.S.A.2013 Supp. 12–105b(d) unambiguously applies only to lawsuits against municipalities. Failure to comply with the statute does not deprive a district court of jurisdiction over a lawsuit against a municipal employee.” 301 Kan. at 201. The Supreme Court also clarified that its “decision necessarily overrules King, ” and it “remanded to the district court for further proceedings.” 301 Kan. at 201–02.
We agree with Farrell's candid concession that, applying Whaley to this case, the defendants motions to dismiss were without a legal basis. We hold that because Whaley applies to this case, Fowler's failure to comply with the notice provisions of K.S.A. 12–105b with regard to the individual defendants did not deprive the district court of subject matter jurisdiction. Accordingly, we reverse the district court's dismissals of Fowler's petition against Farrell, Phillips, and McBratney, and remand for further proceedings.
Reversed and remanded.