Opinion
No. 107,907.
2013-04-19
William D. HUEHL, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LINCOLN, Kansas, and Julie L. Farr, Appellees.
Appeal from Lincoln District Court; Kim W. Cudney, Judge. Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellant. Dustin J. Denning and Paula J. Wright, of Clark, Mize & Linville, Chtd., of Salina, for appellee Board of County Commissioners of Lincoln County.
Appeal from Lincoln District Court; Kim W. Cudney, Judge.
Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellant. Dustin J. Denning and Paula J. Wright, of Clark, Mize & Linville, Chtd., of Salina, for appellee Board of County Commissioners of Lincoln County.
Shannon L, Holmberg, of Gilliland & Hayes, P.A., of Hutchinson, for appellee Julie L. Farr.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
William Huehl appeals the trial court's decision to dismiss his case with prejudice. The trial court's decision was based on a determination that Huehl had failed to comply with the notice of claim provision of K.S.A.2011 Supp. 12–105b(d). Nevertheless, Huehl contends that he substantially complied with the statutory requirements of the previously mentioned statute. For the reasons stated below, we affirm the trial court's decision.
In October 2009, Huehl was a patient at the Lincoln County Hospital (LCH) being treated for the H1N1 virus. While in the hospital, Huehl received a dose of phenergan that caused his right hand to swell and caused a burning sensation. After the swelling went down, Huelh's right hand remained tingly and numb, requiring an endoscopic tunnel release procedure. After surgery, Huehl still experienced numbness, discoloration, tingling, and aches and pain in his right hand.
In November 2009, Huehl had a meeting with John Kobbeman, a board member of the LCH Foundation Board, and Greg McNeil, the administrator and chief executive officer (CEO) of LCH, to tell them that he felt he had been furnished negligent care while a patient at LCH.
Shortly after this meeting, Susan Diagnault, a medical liability analyst for LCH's liability insurance company, contacted Huehl and asked Huehl to provide a specific explanation of how LCH was negligent in his care and an itemized list of damages. Diagnault also asked Huehl to sign medical release forms so she could access his relevant medical records. Diagnault also told Huehl to direct any further correspondence regarding this matter to her.
In February 2010, Huehl furnished Diagnault with the information she had requested. Diagnault then told Huehl that she would be investigating his negligence claim for the next 5 months.
In July 2010, Diagnault sent Huehl a settlement offer which contained an offer to write-off Huehl's unpaid balance to LCH in exchange for a full release of his claims. Huehl rejected this settlement offer.
In September 2011, Huehl's attorney contacted Diagnault in an attempt to renegotiate the settlement offer. Diagnault told Huehl's attorney that the statute of limitations on Huehl's claim would run on or about October 22, 2011, and recommended that Huehl file suit because she was doubtful that LCH would change its position or reconsider its settlement offer before Huehl's statute of limitations ran out.
On October 20, 2011, Huehl sued LCH and Julie Farr, the nurse who had rendered the alleged negligent care, for damages based on negligence. LCH and Farr (the defendants) filed responsive pleadings and both moved for dismissal of Huehl's action because Huehl had failed to comply with the notice requirements of K.S.A.2011 Supp. 12–105b(d). In response, Huehl argued that he had substantially complied with the requirements of K.S.A.2011 Supp. 12–105b because he had furnished numerous written claim notices as well as oral notice of his claim just weeks after the alleged negligence occurred. Huehl also requested permission to amend his petition. The defendants responded and argued that Huehl had failed to comply with 12–105b(d) and that substantial compliance was not sufficient to prevent the dismissal of his action. The defendants further argued that Huehl should not be allowed to amend his petition because such amendment would not cure the defect of Huehl's failure to provide written notice before filing suit.
After hearing argument on the matter, the trial court granted the defendants' motions to dismiss. Relying on Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, Syl. ¶ 1, 127 P.3d 319 (2006), the court held that it lacked jurisdiction over Huehl's petition because Huehl did not comply with the mandatory service requirements of K.S.A.2011 Supp. 12–105b(d).
Did the trial court err in characterizing the defendants' motions as motions to dismiss?
On appeal, Huehl first argues that the defendants' motions to dismiss should have been treated as motions for summary judgment because the trial court considered matters outside of the pleadings. Huehl further maintains that the defendants' motions should have been denied because they failed to comply with Rule 141 (2012 Kan. Ct. R. Annot. 247). In response, the defendants argue that the trial court properly decided their motions under a dismissal standard and that the trial court did not consider matters outside of the pleadings.
“When a motion to dismiss raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of a plaintiffs petition. Dismissal is justified only when the plaintiffs allegations clearly demonstrate the plaintiff does not have a claim. [Citation omitted.] When a district court has granted a motion to dismiss, an appellate court must accept as true the facts alleged by plaintiff, along with any inferences that can reasonably be drawn from the facts. The appellate court then must decide whether those facts and inferences state a claim based on plaintiffs theory or any other possible theory. If so, the dismissal by the district court must be reversed .” Hemphill v. Shore, 295 Kan. 1110, Syl. ¶ 1, 289 P.3d 1173 (2012).
Under K.S.A.2011 Supp. 60–212(b), a motion to dismiss for failure to state a claim is treated like a motion for a summary judgment if matters outside the pleadings are presented and not excluded by the court. Whether matters outside the pleadings were considered “must be decided from the allegations of the petition.” State ex rel Slusher v. City of Leavenworth, 279 Kan. 789, 790, 112 P.3d 131 (2005). Dismissal is only justified if the petition's allegations clearly demonstrate petitioners do not have a claim, after viewing all claims in the light most favorable to petitioners and resolving every doubt in their favor. 279 Kan. at 790.
In this case, Huehl's petition alleged a medical negligence case against the defendants, which includes a municipality. In response, the defendants' motions to dismiss were based on K.S.A.2011 Supp. 60–212(b)(1),(2), and (6), alleging lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. To address the jurisdiction issues raised by the defendants, the trial court had to determine if Huehl had complied with K.S.A.2011 Supp. 12–105b (written notice must be served on the clerk or governing body of a municipality before filing suit) and K.S.A.2011 Supp. 60–209(c) (petitioner must plead the performance of a condition precedent). To make this determination, the trial court did not need to consider matters outside the pleadings. Therefore, the trial court properly treated the motions as motions to dismiss.
In its journal entry of judgment, the trial judge stated:
“The defendants' motions to dismiss are not converted to motions for summary judgment by virtue of plaintiffs' recitation of facts contained outside the pleadings. Accordingly, summary judgment standards do not apply to this case. Dismissal pursuant to K.S.A. 60–212(b) is justified when the allegations of the Petition clearly demonstrate that the Petitioner does not have a claim.”
Although Huehl attached an affidavit and exhibits to his response to the defendants' motions to dismiss, it is evident from the trial court's journal entry of dismissal that the judge did not consider any matters outside of the pleadings in his ruling. Thus, we continue to treat the motions as motions to dismiss rather than motions for summary judgment. See Seaboard Corporation v. Marsh Inc., 295 Kan. 384, 390–94, 284 P.3d 314 (2012).
Moreover, a simple review of Huehl's petition tells us that his case is a medical negligence case against a municipality which would fall under the Kansas Tort Claims Act (KTCA). In his petition, Huehl failed to mention the KTCA and he also failed to plead the performance of the condition precedent of complying with the notice requirements of K.S.A.2011 Supp. 12–105b(d). A mere general allegation of the performance of a condition precedent will satisfy notice pleading requirements under K.S.A.2011 Supp. 60–209(c), but even that is missing from Huehl's petition. See Tucking v. Board of Jefferson County Commrs, 14 Kan.App.2d 442, 445–46, 796 P.2d 1055,rev. denied 246 Kan. 770 (1990). If Huehl had properly provided notice under K.S.A.2011 Supp. 12–105b(d), he would have made that clear in his petition or his response to the defendants' motions to dismiss. Instead, Huehl attached affidavits and exhibits to his response to show actual notice of his claim, and he argued that he substantially complied with the notice requirements.
Because the trial court did not consider matters outside of the pleadings to rule on the defendants' motions to dismiss, the motions did not convert to motions for summary judgment, and the trial court properly treated the motions as motions to dismiss.
Did Huehl fail to comply with K.S.A, 2011 Supp. 12–105b(d)?
Next, Huehl argues that the trial court erred in dismissing his case based on his failure to comply with K.S.A.2011 Supp. 12–105b(d). Huehl maintains that he substantially complied with the statute and that he provided multiple written notices to the defendants giving them actual notice of his claim.
The parties do not dispute the material facts regarding Huehl's service of notice; thus, resolution of this case rests upon the interpretation of 2011 Supp. K.S.A. 12–105b. Interpretation of a statute presents a question of law over which we have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Under 2011 Supp. K.S.A. 12–105b(d), any person who has a claim against a municipality that could give rise to an action brought under the KTCA, K.S.A. 75–6101 et seq. , must file a written notice of claim with the municipality before commencing such action. The purpose of a written notice of claim is to advise the municipality of the time and place of the injury and to give the municipality an opportunity to ascertain the character and extent of the injury sustained. The notice requirement of K.S.A.2011 Supp. 12–105b(d) is a mandatory prerequisite to filing a tort action against a municipality in trial court; if the statutory notice requirement is not met, the trial court does not have jurisdiction over the municipality. Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009). A municipality is broadly defined to include counties. K.S.A.2011 Supp. 12–105a(a); K.S.A.2011 Supp. 75–6102(b).
K.S.A.2011 Supp. 12–105b(d) in pertinent part provides:
“The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (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. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.” (Emphasis added.)
Substantial compliance has been defined by our Supreme Court as “ ‘compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.’ “ Dodge City Implement, Inc., 288 Kan. at 639.
In granting the defendants' motions to dismiss, the trial court relied on Myers to find that Huehl's notice to LCH's CEO, LCH's liability insurance carrier, and an LCH board member did not substantially comply with the service requirements of K.S.A.2011 Supp. 12–105b(d) because the notice was not filed with the clerk or governing body of the county, which in this case is the board of county commissioners. In Myers, the plaintiff served a notice of claim for wrongful termination on the county counselor. The county counselor forwarded the notice to the county's governing body (the board of county commissioners), which provided the governing body with actual notice of the claim. The county investigated and denied the claim, and the plaintiff subsequently filed a lawsuit. The county moved for summary judgment, arguing that service of the notice of claim was ineffective because the county counselor was neither the county clerk nor the county's governing body. The trial court agreed and granted summary judgment in favor of the county.
Our Supreme Court affirmed the trial court's decision and determined that if it allowed service of the notice on the county counselor to constitute substantial compliance with K.S.A.2011 Supp. 12–105b(d), it “would establish a new, judicially created method of serving notice beyond the methods established by the legislature.” Myers, 280 Kan. at 875; see also Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan.App.2d 379, 383, 988 P.2d 263 (1999) (service of notice on county counselor does not substantially comply with 12–105b[d]'s requirement that claim be filed with the county clerk).
To support his argument that the defendants had actual or constructive knowledge of his claim and therefore he did not need to file written notice as required under K.S.A.2011 Supp. 12–105b, Huehl relies on two cases that were decided before Myers. First, Huehl relies on Smith v. Kennedy, 26 Kan.App.2d 351, 985 P.2d 715,rev. denied 268 Kan. 888 (1999). Similar to this case, the plaintiff in Smith filed a medical negligence claim against the county hospital and a physician. Before filing suit, however, the plaintiff sent written notices of her claim to the county clerk and the CEO of the county hospital. The plaintiff later amended her petition and replaced the county hospital with the board of trustees of the county hospital. Smith, 26 Kan.App.2d at 352. The hospital board of trustees moved to dismiss the case, arguing that the plaintiff had failed to provide written notice to the hospital board of trustees in accordance with 12–105b. The Smith court held that the board of county commissioners was the parent unit of the county hospital, and because the CEO and the clerk of the board of county commissioners received notice, the plaintiff had substantially complied with the notice provisions of 12–105b. Smith, 26 Kan.App.2d at 361.
So, while the Smith court held that service of notice on the CEO, along with service of notice on the clerk, substantially complied with 12–105b, that is not the situation in this case. Here, Huehl failed to serve notice on the clerk of the board of county commissioners or the board of LCH. Therefore, although the defendants may have been aware of the negligence claim and may have already been investigating it, that does not remove the requirements of K.S.A.2011 Supp. 12–105b that Huehl must serve written notice to either the clerk or the governing body before filing suit. The plaintiff in Smith properly filed that notice and therefore that case is distinguishable.
Next, Huehl relies on Bell v. Kansas City, Kansas Housing Authority, 268 Kan. 208, 992 P.2d 1233 (1999). In Bell, the plaintiff filed suit against the Kansas Housing Authority after being injured when an apartment elevator malfunctioned. The housing authority's insurance carrier denied the plaintiff's claim; however, the facts did not establish if the plaintiff had made an oral claim or a written claim, who made the claim, or to whom the claim was made. After the insurance carrier denied the plaintiff's claim, the plaintiff's attorney sent a letter to the city clerk in an attempt to comply with the KTCA. The Bell court remanded the matter to the trial court to complete discovery without deciding whether the service of notice to the city clerk substantially complied with 12–105b. In reaching its decision, the Bell court noted that the completion of discovery might furnish evidence to support a finding that the plaintiff had substantially complied with the notice requirements. 268 Kan. at 221.
While the Bell case seems to provide support for Huehl's argument that he substantially complied with the notice requirements, it is important to remember that the Bell case was later distinguished by Myers. The Bell court did not specifically determine whether the plaintiff in that case had substantially complied with the notice requirements, it simply remanded the case for the trial court to make that determination. Yet, in Myers, our Supreme Court was clear in holding that the statute requires that service be made on the clerk or the governing body and that allowing service on any other person based on substantial compliance “would establish a new, judicially created method of serving notice beyond the methods established by the legislature.” Myers, 280 Kan. at 875. Therefore, the cases Huehl relies on in his brief will not bear nearly the weight of reliance which he places upon them.
Huehl further argues that multiple writings can constitute substantial compliance with the statutory notice requirements. Huehl points to the records and documents he provided to LCH's CEO and insurance carrier as evidence that LCH was aware of his claim and had sufficient information from which to adequately investigate the claim. For support, Huehl relies on Bell again and maintains that the Bell court held that providing notice to the CEO is clearly sufficient and in compliance with the notice requirements. As explained earlier, that was not the holding in Bell. The Bell court remanded the matter to the trial court to complete discovery without deciding if the service of notice to the city clerk substantially complied with 12–105b.
Moreover, this court rejected a similar argument made in Meara v. Douglas County, No. 107,471, 2013 WL 310363 (Kan.App.2013) (unpublished opinion). In Meara, the plaintiff argued that multiple writings could constitute substantial compliance with the statutory notice requirements. The Meara court held that the county's actual notice of the claim was irrelevant. 2013 WL 310363, at *9. In reaching this conclusion, the Meara court relied on Myers. The Myers court rejected the actual notice argument because it “would establish a new, judicially created method of serving notice beyond the methods established by the legislature.” Myers, 280 Kan. at 875.
In conclusion, we determine that K.S.A.2011 Supp. 12–105b(d) requires a notice of claim against a county to be served on the county clerk or the board of county commissioners. Here, there is no evidence in the record that Huehl furnished a written notice of claim on either the clerk or the board of county commissioners. Because Huehl failed to provide written notice of his claim as required by K.S.A.2011 Supp. 12–105b(d), the trial court lacked jurisdiction over his claims against the defendants. As a result, the trial court properly dismissed the case with prejudice.
Did the trial court err in denying Huehl's motion to amend his petition?
Finally, Huehl argues that the trial court erred in denying his motion to amend his petition. Huehl maintains that his amended petition would allege that he provided both oral and written notice of his claim which substantially complied with the notice requirements under K.S.A.2011 Supp. 12–105b(d).
A trial court is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interest of justice. Hoover Equipment Co. v. Smith, 198 Kan. 127, 133, 422 P.2d 914 (1967). In the absence of a clear abuse of discretion, the order of the trial court should be approved. Hoover Equipment Co., 198 Kan. at 133. Leave to amend should be freely given when justice so requires; however, in order for a party to show that the trial court abused its discretion by refusing to permit an amended pleading, the party must affirmatively demonstrate that such refusal results in manifest injustice. Fankhauser v. City of El Dorado, 203 Kan. 757, 760, 457 P.2d 146 (1969).
Compliance with K.S.A.2011 Supp. 12–105b is a condition precedent to a claim for relief against a city on account of injuries to a person or property. Fankhauser, 203 Kan. at 759 (following James v. City of Wichita, 202 Kan. 222, 447 P.2d 817 [1968] ).
In James, our Supreme Court held that it was appropriate to allow a party to amend its petition to allege a condition precedent had been met when there was evidence that the party had complied with the notice of claim statute by properly filing the notice of claim before initiating the lawsuit despite the failure to plead satisfaction of this condition precedent in the petition. 202 Kan. at 227.
James is clearly distinguishable from this case. Here, there is no evidence that Huehl simply just failed to plead that he had complied with K.S.A.2011 Supp. 12–105b. The record fails to establish that Huehl sent a written notice of claim which is required before filing suit, and therefore allowing Huehl to amend his petition would not correct the initial error of failing to properly give notice of his claim. If Huehl had properly provided written notice of his claim but had failed to plead his compliance, then it would have been appropriate for the trial court to grant his motion to amend. Because Huehl failed to comply with K.S.A.2011 Supp. 12–105b, the condition precedent to a claim for relief against a municipality, the trial court properly denied his motion to amend his petition.
Affirmed.