Opinion
Case No. 01-4138-JAR
November 19, 2002
ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendants Fred Mau and Fred Mau Outdoor Adventures, Inc., move for an order granting partial summary judgment on the Plaintiffs' purported cause of action for Defendants' alleged violation of Kansas hunting laws and regulations. Defendants argue that the Kansas game laws provide criminal penalties for violation, but do not create a private cause of action or civil liability for their violation. Defendants cite a host of cases that establish that a private cause of action is not created by a statute unless the legislature intended to create such a private right; and argue that nothing in the penal hunting and game laws in Chapter 32 of Kansas Statutes Annotated expresses any legislative intent to provide for civil liability or a private cause of action.
The referenced hunting and game laws are in K.S.A. 32-701 et seq.
In their response (Doc. 51), Plaintiffs David Hollond and Drycreek Wilderness Outfitters, L.L.C. do not disagree. Plaintiffs assert, however, that their theories of liability are for breach of contract and fraud; Plaintiffs are not pursuing a separate cause of action for violation of the Kansas game laws. The Court's review of the Pretrial Order confirms that Plaintiffs' plead causes of action for breach of contract, tortious interference with prospective business relationships and business advantages, fraud by silence and by promise of future events, and misappropriation of trade secrets; but Plaintiffs do not plead a cause of action for violation of the game laws.
While Plaintiffs do not allege a separate cause of action under penal game laws, Plaintiffs contend that Defendants' alleged violations of game laws constituted a breach of contract, as well as fraud. Plaintiffs and Defendants contracted for Defendants (a booking agency and its operator) to book hunters for Plaintiffs' outfitting and hunting guide services. Plaintiffs assert that the Defendants agreed in writing, orally and impliedly, to follow the laws of Kansas and all other applicable laws, "thereby setting an exemplary hunting example, thus assuring the admiration of hunters and insuring future hunting clientele." Plaintiffs contend that Defendants' breach of this agreement and fraud, caused and continues to cause Plaintiffs lost revenue and other damages. Plaintiffs argue that Defendants' summary judgment motion is really an improper motion in limine, meant to exclude evidence of Defendants' violations of game laws. Plaintiffs contend that this evidence is material not only to establish Defendants' breach of contract and fraud; but that the evidence of Defendants' pattern of such violations is also material to Plaintiffs' claim for punitive damages.
Although Defendants argue that the Court should also grant them summary judgment because Plaintiffs have offered no evidence of any damages caused by Defendants' alleged violations of game laws, Defendants do not support this assertion with any reference to the record. Plaintiffs, also with no reference to the record, contend that the Defendants' breach of contract and fraud, by violation of game laws, did cause them damage and also supports an award of punitive damages. Defendants, as the movants, bear the initial burden of showing that there is an absence of any genuine issue of material fact. Defendants having failed to make this initial showing concerning the absence of any evidence of causation and damages, the Court denies the summary judgment motion on this basis, as well.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991).
Because it is clear from the Pretrial Order and Plaintiffs' Response to the Motion for Partial Summary Judgment that Plaintiffs are not pleading a cause of action for violation of game laws, the Court denies Defendants' motion. Whether or not any evidence of these alleged violations is admissible as material to Plaintiffs' causes of action or claims for damages, can be addressed through a motion in limine or other appropriate pleading.
IT IS THEREFORE ORDERED that Defendants' Motion for Partial Summary
Judgment (Doc. 45) is DENIED.