No. 123,063
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KANSAS FIRE AND SAFETY EQUIPMENT, a Kansas corporation,
HAL G. RICHARDSON d/b/a BUENO FOOD BRAND,
TOPEKA VINYL TOP, and MINUTEMAN SOLAR FILM,
Appellants/Cross-appellees,
v.
CITY OF TOPEKA, KANSAS,
Appellee/Cross-appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2020 Supp. 26-518 is part of the Eminent Domain Procedure Act (EDPA).
The EDPA does not provide third-party displaced persons a private right of action for
relocation benefits under K.S.A. 2020 Supp. 26-518. Third-party displaced persons can
pursue relocation benefits under the Kansas Relocation Act, K.S.A. 58-3501 et seq., or
through another cause of action outside the EDPA.
2.
The Eminent Domain Procedure Act, K.S.A. 26-501 et seq., limits judicial review
to the amount of compensation owed under K.S.A. 26-513. It provides no mechanism for
judicial review of a denial of relocation benefits under K.S.A. 2020 Supp. 26-518.
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed June 24,
2022. Reversed and remanded with directions.
John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Jones, of Topeka, and Jason B.
Prier, of The Prier Law Firm, L.L.C., of Lawrence, for appellants/cross-appellees.
Shelly Starr, chief of litigation, City of Topeka, for appellee/cross-appellant.
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Before HILL, P.J., POWELL and CLINE, JJ.
CLINE, J.: Multiple month-to-month tenants sued the City of Topeka for relocation
benefits under K.S.A. 2020 Supp. 26-518 after they were forced to move once the City of
Topeka bought the property where they operated their businesses. The district court
granted the City summary judgment after finding the tenants were not "displaced
persons" under that statute, nor did the tenants establish the City intended to condemn the
property (two prerequisites for relocation benefits under K.S.A. 2020 Supp. 26-518). Our
Supreme Court reversed that decision after finding material disputed facts prevented
summary judgment.
On remand, the City sought summary judgment on the grounds that the court
lacked subject matter jurisdiction to consider the tenants' claims because K.S.A. 2020
Supp. 26-518 does not provide the tenants a private right of action. It also repeated its
factual arguments that the tenants did not qualify for relocation benefits. The district
court agreed that it lacked subject matter jurisdiction and granted summary judgment on
that basis.
We find the district court properly held it lacked subject matter jurisdiction over
the tenants' claims. K.S.A. 2020 Supp. 26-518 is part of the Eminent Domain Procedure
Act (EDPA), K.S.A. 26-501 et seq. Even if tenants are "displaced persons" under the Act,
nothing in the EDPA permits a displaced person to file an independent action in the
district court seeking relocation benefits under K.S.A. 2020 Supp. 26-518. However, we
find a dismissal for lack of jurisdiction should be without prejudice, so we reverse and
remand with instructions for the district court to vacate the order granting summary
judgment for the City and instead enter an order of dismissal without prejudice for lack of
jurisdiction.
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PROCEDURAL HISTORY
In 2019, the Kansas Supreme Court reversed the district court's summary
judgment order and remanded this case to the district court to resolve disputed facts.
Nauheim v. City of Topeka, 309 Kan. 145, 154, 432 P.3d 647 (2019). Our Supreme Court
summarized the factual and procedural background, including the arguments and
outcome at this court:
"In 2011, the City authorized by ordinance a public works project to replace a
structurally deficient drainage system on a tributary to Butcher Creek to alleviate
potential flooding within the city limits. The authorizing language did not mention
condemnation. After exchanging terms with the owner during 2013, the City bought real
property where commercial tenants operated their businesses. During the negotiation, the
City made clear it wanted the property vacant before obtaining title. The owner complied,
and the transaction concluded without the City exercising its eminent domain power.
"Charles Nauheim and Hal G. Richardson, the former tenants, relocated their
respective businesses to other property. They sued the City for relocation costs under
K.S.A. 2017 Supp. 26-518, which states:
'Whenever federal funding is not involved, and real property is
acquired by any condemning authority through negotiation in advance of
a condemnation action or through a condemnation action, and which
acquisition will result in the displacement of any person, the condemning
authority shall:
'(a) Provide the displaced person, as defined in the federal
uniform relocation assistance and real property acquisition policies act of
1970, fair and reasonable relocation payments and assistance to or for
displaced persons.' (Emphases added.)
"The City argued the statute did not apply because it never intended to condemn
the property had the negotiation failed. It also contended neither tenant was a 'displaced
person' as statutorily defined. The City claimed the tenants relocated because of
agreements with the property owner—also their landlord. All parties moved for summary
judgment.
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"The district court granted the City's motion. It held the tenants were not
displaced persons as defined by law. It also found the uncontroverted facts proved the
property acquisition was not made 'in advance of a condemnation action,' but occurred
instead by the City exercising its corporate power. The tenants appealed." 309 Kan. at
147.
On appeal to this court, the panel ultimately reversed and remanded for the district
court to resolve disputed material facts. Nauheim v. City of Topeka, 52 Kan. App. 2d 969,
970, 381 P.3d 508 (2016), rev. granted 306 Kan. 1319 (2017). The tenants petitioned our
Supreme Court for review of the panel's finding that a displaced person must prove a
condemning authority threatened condemnation or took affirmative action to condemn
the property before acquisition. Nauheim, 309 Kan. at 149.
Employing canons of statutory interpretation, our Supreme Court disagreed with
the panel's interpretation of K.S.A. 2017 Supp. 26-518. Our Supreme Court concluded
the panel's interpretation "too narrowly construes what evidence might show entitlement
to benefits" and held "[w]hether a negotiation is in advance of a condemnation action is a
question of fact a claimant needs to prove by a preponderance of the evidence." 309 Kan.
at 152.
Our Supreme Court reviewed the evidence and found that "despite incorrectly
imposing a higher evidentiary burden than the tenants needed to prevail," the panel
correctly remanded for the district court to resolve disputed facts under the summary
judgment standard. 309 Kan. at 154. Our Supreme Court determined: "Further
proceedings are necessary to explore whether the City's negotiations were in advance of a
condemnation action under K.S.A. 2017 Supp. 26-518." 309 Kan. at 154.
On remand, the City again moved for summary judgment on factual grounds,
claiming K.S.A. 2020 Supp. 26-518 was inapplicable because the City had not intended
to condemn the property. The City also argued the district court lacked jurisdiction to
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consider the claims because K.S.A. 2020 Supp. 26-518 provides no private right of
action.
In response, the tenants argued that the same genuine issues of material fact which
our Supreme Court had found prohibited summary judgment still existed. They also
argued that this court, and our Supreme Court, implicitly found subject matter jurisdiction
since neither dismissed the case for lack of jurisdiction in the first appeal.
Upon detailing the uncontroverted facts and procedural history, the district court
granted summary judgment for the City, finding it lacked subject matter jurisdiction to
consider the tenants' claims under K.S.A. 2020 Supp. 26-518. The district court reasoned
that K.S.A. 2020 Supp. 26-518 does not create a private cause of action for relocation
benefits because it is contained within the EDPA, which only provides "an appeal process
from an unsatisfactory condemnation compensation appraisers' award." Instead, it
acknowledged the City's argument that the procedure for tenants to pursue relocation
benefits is found in the Kansas Relocation Act, K.S.A. 58-3501 et seq., or through
another cause of action outside the EDPA.
The district court recognized the appellate courts unfortunately did not consider
subject matter jurisdiction previously because the courts focused on the "narrow
determination of whether [the tenants] qualified as 'displaced persons' under the law."
The district court noted that despite the independent duty of the courts to determine
whether subject matter jurisdiction exists, "[t]here is a chance, as with all human
endeavors that the issue was overlooked initially by the parties, then the District Court,
and was later not squarely considered as the respective appellate courts narrowly received
an issue of first impression in Kansas."
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ANALYSIS
On appeal, the tenants claim the district court erred because they contend K.S.A.
2020 Supp. 26-518 creates either an outright or implied private right of action under
which they can dispute the City's refusal to pay relocation benefits. They also claim the
district court should have allowed them leave to amend their petition to assert a claim
under K.S.A. 58-3509 or dismissed their case without prejudice rather than grant the City
summary judgment. The City cross-appeals, claiming the district court incorrectly found
factual issues prevented summary judgment. Since we affirm the court's summary
judgment decision, we need not address the City's cross-appeal.
Since resolution of the tenants' first issue on appeal involves interpreting the
EDPA to determine whether it provides subject matter jurisdiction over the tenants'
claims, we review the district court's decision to dismiss those claims de novo. Nauheim,
309 Kan. at 149.
We review the tenants' claim that the district court should have allowed them leave
to amend their petition or dismissed their case without prejudice under an abuse of
discretion standard. Luckett v. Kansas Employment Security Bd. of Review, 56 Kan. App.
2d 1211, 1221, 445 P.3d 753 (2019).
We find the district court correctly interpreted K.S.A. 2020 Supp. 26-518 and
appropriately granted the City summary judgment. We also find that even if the tenants
had properly sought to amend their petition to add claims under K.S.A. 58-3509, such an
amendment would have been futile since the deadline to pursue these claims had passed.
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The district court correctly found it lacked subject matter jurisdiction.
Subject matter jurisdiction is the court's power to hear and decide a particular type
of action. In re Care & Treatment of Easterberg, 309 Kan. 490, 492, 437 P.3d 964
(2019). "Jurisdiction over subject matter is the power to decide the general question
involved, and not the exercise of that power." Miller v. Glacier Development Co., 293
Kan. 665, 669, 270 P.3d 1065 (2011). And subject matter jurisdiction is vested by statute;
the parties cannot confer such jurisdiction upon a court by consent, waiver, or estoppel.
Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, Syl. ¶ 1, 204 P.3d 562 (2009).
Subject matter jurisdiction may be raised at any time, whether for the first time on
appeal or even on the appellate court's own motion. In re Care & Treatment of Emerson,
306 Kan. 30, 33, 392 P.3d 82 (2017). And an appellate court has a duty to question
jurisdiction on its own initiative. Wiechman v. Huddleston, 304 Kan. 80, 84, 370 P.3d
1194 (2016).
The EDPA provides tenants no private right of action for relocation benefits.
The EDPA, K.S.A. 26-501 et seq., "codifies" the Fifth Amendment to the United
States Constitution's protection against taking private property without just
compensation. Miller v. Bartle, 283 Kan. 108, 117, 150 P.3d 1282 (2007). An eminent
domain proceeding instituted under the EDPA is an administrative proceeding for
determining the fair market value of private property taken for public use. 283 Kan. at
113-14.
Under the EDPA, the condemning authority files a petition in district court for the
appointment of three appraisers to view and value the property at issue. K.S.A. 2020
Supp. 26-504. If any of the property owners or the condemning authority disagree with
the valuation of the property by the appraisers, they can appeal the appraisers' award to
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the district court for a trial de novo on the issue of compensation owed for the taking of
the property. K.S.A. 2020 Supp. 26-508. The only issue the district court has jurisdiction
to consider in such an appeal is the amount of compensation owed under K.S.A. 26-513.
K.S.A. 2020 Supp. 26-508(a); Bartle, 283 Kan. at 114-15. Our Supreme Court has
repeatedly held the EDPA does not provide "'a forum for litigation over the right to
exercise eminent domain or to determine the extent of said right.'" 283 Kan. at 114. Such
issues "'can only be litigated in an individual civil action, usually by suit for injunction.'"
283 Kan. at 114.
While the EDPA does provide that displaced persons—such as the tenants—are
entitled to "[f]air and reasonable relocation payments and assistance," when "real
property is acquired by any condemning authority through negotiation in advance of a
condemnation action or through a condemnation action" and federal funding is not
involved, the EDPA provides no mechanism for independent judicial review of a denial
of such payments. K.S.A. 2020 Supp. 26-518. It also provides no standing to third
parties—only parties to the condemnation action who are dissatisfied with an appraiser
award may appeal the award to the district court. K.S.A. 2020 Supp. 26-508. And, again,
the statute limits the appealable issue to the "compensation required by K.S.A. 26-513,
and amendments thereto." K.S.A. 2020 Supp. 26-508(a); see Bartle, 283 Kan. at 115.
Relocation benefits are not mentioned in K.S.A. 26-513.
The tenants attempt to distinguish Bartle by claiming, "[a]ll the cases that hold
that outside issues may not be litigated in a condemnation proceeding or an appeal
therefrom involved condemnation actions of appeals therefrom. Here, there was no
condemnation action, and thus no appeal." Put another way, the tenants argue their
relocation claims "were not made within a pending condemnation action or an appeal—
they were filed as an original action." But the tenants miss Bartle's point: the scope of
judicial review under the EDPA is limited regardless of whether the claim is brought as
part of an eminent domain proceeding or as an original action. The EDPA grants the
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tenants no independent right to bring a claim for relocation benefits; it only allows appeal
of an appraisers' award within a condemnation proceeding.
Our Supreme Court acknowledged the limited scope of judicial review allowed by
the EDPA in Miller v. Glacier Development Co., 293 Kan. 665, 270 P.3d 1065 (2011).
The court held "the issue of whether the plaintiff can pierce the corporate veil of an LLC
to hold a member/manager personally liable for an excess payment to the LLC is one of
those 'other issues' that exceeds the jurisdictional scope of an eminent domain appeal."
293 Kan. at 672. The court reiterated that "'[t]he procedure for exercising eminent domain
as set forth in K.S.A. 26-501 to 26-518 and K.S.A. 2008 Supp. . . . [26]-501b . . . shall be
followed in all eminent domain proceedings.'" 293 Kan. at 670. Having found the district
court lacked jurisdiction to adjudge a party personally liable under the EDPA, the Glacier
Development Co. court found the district court entered the judgment without subject
matter jurisdiction and therefore the judgment was "simply void." 293 Kan. at 672.
While the tenants contend the district court's interpretation of the EDPA "would
render the provisions of K.S.A. 26-518 meaningless," we disagree. Under the EDPA, if
"real property is acquired by any condemning authority through negotiation in advance of
a condemnation action or through a condemnation action, and which acquisition will
result in the displacement of any person" then the displaced person is entitled to
relocation benefits. K.S.A. 2020 Supp. 26-518. Thus, if condemnation proceedings were
initiated for the property, then the tenants could have claimed relocation benefits under
K.S.A. 2020 Supp. 26-518, either as parties to the proceeding or through their landlord
property owner. See City of Wichita v. Denton, 296 Kan. 244, 253, 294 P.3d 207 (2013)
(a tenant "is entitled to compensation if his leasehold estate is damaged by the exercise of
eminent domain" unless their lease provides otherwise); see also K.S.A. 2020 Supp. 26-
504 (the appointed appraisers are "to determine the damages and compensation to the
interested parties resulting from the taking"). Indeed, the City admitted as much in its
correspondence. In an e-mail submitted as evidence, a City employee stated: "Fyi. If we
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don't close on the . . . property because the tenants refuse to leave and we have to
condemn, we'll have to pay relocation benefits to the tenants regardless of whether
federal funding is involved. Keep this in mind as you go forward." A couple of hours
later, the same employee responded to the e-mail thread, again stating: "[T]he tenants
may never leave—knowing that they'll get relocation benefits if the City is forced to
condemn."
And if the property is acquired "through negotiation in advance of a
condemnation," and no condemnation proceeding is initiated, then the tenants could still
request relocation benefits from the City. K.S.A. 2020 Supp. 26-518. The tenants'
problem is that the EDPA does not permit judicial review of the condemning authority's
decision on such requests; K.S.A. 2020 Supp. 26-518 is advisory only since the right to
judicial review in K.S.A. 2020 Supp. 26-508(a) is limited to "the compensation required
by K.S.A. 26-513, and amendments thereto." The Legislature could have included
relocation benefits under K.S.A. 2020 Supp. 26-518 within that appeal right, but it did
not. We have no authority to substitute our judgment for the Legislature's.
The Legislature did not create an implied private right of action for judicial review of
claims under K.S.A. 2020 Supp. 26-518.
The tenants alternatively argue that, by requiring payment of relocation benefits,
the Legislature created an implied right of action to recover such benefits. But there is no
implied right of judicial review of administrative actions in Kansas. As our Supreme
Court explained in Barnes v. Board of Cowley County Comm'rs, 293 Kan. 11, 17, 259
P.3d 725 (2011):
"Courts have no inherent appellate jurisdiction over official acts of administrative
officials or boards, unless there is a statute providing for judicial review. Absent such a
statutory provision, appellate review of administrative decisions is limited to claims of
relief from illegal, fraudulent, or oppressive official conduct through the equitable
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remedies of quo warranto, mandamus, or injunction. The right to appeal an administrative
decision is not vested or constitutional; it is statutory and may be limited or completely
abolished by the legislature. [Citation omitted]."
Here, the Legislature limited the right to appeal administrative decisions under the
EDPA. K.S.A. 2020 Supp. 26-508(a); Bartle, 283 Kan. at 115. And the tenants' claims
for relocation benefits do not fall within those limitations.
"'Generally, the test of whether one injured by the violation of a statute may
recover damages from the wrongdoer is whether the legislature intended to give such a
right.'" Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004). Although some statutes
expressly impose personal liability on persons or entities, "'[m]ost statutes do not,
however, explicitly confer on potential plaintiffs a civil remedy.'" Jahnke v. Blue Cross &
Blue Shield of Kansas, 51 Kan. App. 2d 678, 688, 353 P.3d 455 (2015) (quoting Shirley
v. Glass, 297 Kan. 888, 894, 308 P.3d 1 [2013]). This court has held that it "primarily
look[s] to the form or language of the statute" to determine whether the Legislature
intended to grant a private cause of action for a violation of a statute. Jahnke, 51 Kan.
App. at 689.
The tenants' argument that, by requiring payment of relocation benefits, K.S.A.
2020 Supp. 26-518 creates an implied right of action to recover such benefits ignores the
rest of the EDPA. But we must construe the various provisions of the EDPA in pari
materia with the view of reconciling and bringing the provisions of that Act into
workable harmony if possible. Miller v. Board of Wabaunsee County Comm'rs, 305 Kan.
1056, 1066, 390 P.3d 504 (2017). And when viewed as a whole, the EDPA allows for
judicial review of very limited claims—excluding claims for relocation benefits under
K.S.A. 2020 Supp. 26-518.
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This is not to say the tenants were left without a remedy when the City denied
their claims for relocation benefits. As noted in Barnes, the tenants could have pursued
the equitable remedies of quo warranto, mandamus, or injunction. Or they could have
pursued a statutory remedy under the Kansas Relocation Act (KRA), K.S.A. 58-3501 et
seq. The KRA is the state counterpart of the federal Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970. It addresses the payment of relocation
benefits when a state or municipal government program or project "will result in the
displacement of any person by acquisition of real property, or by the direct result of
building code enforcement activities, rehabilitation or demolition programs." K.S.A. 58-
3502. It separately addresses situations when federal financial assistance will be available
to pay all or part of the project or program and when it will not. See K.S.A. 58-3502;
K.S.A. 58-3508. In fact, as the tenants note, K.S.A. 58-3508 contains the same language
as the EDPA permitting relocation assistance by condemning authorities. See K.S.A.
2020 Supp. 26-518. But the difference between the KRA and the EDPA is the KRA
contains a statutory provision permitting appeals of the determination of relocation
payments, while the EDPA does not. See K.S.A. 58-3509.
Under K.S.A. 58-3509(a), "[a]ny displaced person entitled to benefits under this
article may appeal by written notice to the state, agency or political subdivision a
determination of relocation payments." If such appeal is made, an independent hearing
examiner is appointed who decides the claim. From there, "[a]ny party wishing to appeal
the ruling of the hearing examiner may do so by filing a written notice of appeal with the
clerk of the district court within 30 days of the hearing examiner's decision." K.S.A. 58-
3509(a). As the City pointed out below, the KRA provides the avenue through which the
tenants could have pursued relocation benefits.
The existence of the KRA is another reason why we find the Legislature did not
create an implied right of action within K.S.A. 2020 Supp. 26-518. No implied right of
action is necessary when a specific statutory one is already provided.
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Because the tenants' claims under K.S.A. 2020 Supp. 26-518 are outside the scope
of judicial review under the EDPA, the district court correctly found it lacked subject
matter jurisdiction to consider the claims. Although the district court found it lacked
subject matter jurisdiction upon remand by our Supreme Court, subject matter
jurisdiction may be raised at any time, including the first time on appeal or even on the
appellate court's own motion. In re Emerson, 306 Kan. at 33. And an appellate court has
a duty to question jurisdiction on its own initiative. Wiechman, 304 Kan. at 84. Under
these standards, the district court properly granted summary judgment to the City. See
304 Kan. at 84.
The district court did not err in denying the tenants' oral motion to amend.
After the mandate from our Supreme Court, the tenants moved to amend their
petition to add parties on May 24, 2019 (substituting Kansas Fire and Safety Equipment
for Charles Nauheim). The deadline for any motions to amend pleadings or add parties in
the action was June 15, 2019. The tenants attached a copy of their proposed amended
petition to their motion. In the amended petition, the tenants included three claims, one
for each of the three tenants who relocated their business. Two of the tenants sought
payments of $40,000 and the third sought a payment of $20,364.
The tenants were allowed to file their amended petition, which the district court
later noted also expanded their theory and amount of recovery sought. The tenants now
sought "'in lieu of' payments under 49 CFR Part 24.305, which include consideration of
earnings of a business over a two year period prior to being displaced, rather than the
actual moving and relocation expenses sought in the original petition."
While the tenants claim on appeal that they should have been allowed to amend
their petition again to assert a claim under the KRA instead of the EDPA, they never
actually sought to amend their petition to make this change. Instead, the only time they
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mentioned the issue was during oral argument on the City's summary judgment motion,
when they said that if the court found the claims should have been brought under K.S.A.
58-3508, "the only reasonable option for the Court would be to allow an amendment for
it to be brought under Chapter 58 if the City believes that there's a private right of action
under Chapter 58."
The oral argument occurred on March 31, 2020, and the district court issued its
summary judgment order on June 26, 2020. If the tenants wished to amend their petition
again to assert new claims, they could have moved to amend and attached their proposed
amended petition, as they had done before. By failing to file such a motion, the tenants
gave the district court no opportunity to rule on their request. We have no decision to
review.
Even if we construe the district court's summary judgment order as implicitly
denying the tenants' oral request to amend their petition to add a claim under the KRA,
we find no error in that denial. Adding a claim under the KRA at that point would be
futile since the deadline to bring such a claim had long passed.
The tenants' counsel contacted the City on October 18, 2013, requesting relocation
benefits under K.S.A. 2013 Supp. 26-518. A few weeks later, the City responded by letter
and denied the request, reasoning that the property would not be purchased through a
condemnation action. The City attached an e-mail to that letter, in which it stated it did
not believe K.S.A. 2013 Supp. 26-518 applied to the tenants' claim, and said the City "has
been very reluctant to use condemnation." Under K.S.A. 58-3509, the tenants had 60
days after they received notice of the City's denial in which to pursue their claim for
relocation benefits by serving the City with a written notice of appeal of the denial. They
did not avail themselves of this remedy, and the deadline has now passed to do so.
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Although tenants claim the defect in their pleading was "easily curable," they fail
to explain how they could cure a stale claim. Our Kansas Supreme Court has recognized
futility of a proposed amendment as a valid reason to deny a motion to amend a pleading.
Smith v. Philip Morris Companies, 50 Kan. App. 2d 535, 587, 335 P.3d 644 (2014)
(citing Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, 327, 913 P.2d 119
[1996]). Even if we find the district court implicitly denied the tenants' request to amend,
we find no error in that denial.
Disposition of the case
The tenants argue that rather than grant summary judgment based on a lack of
subject matter jurisdiction, the district court should have dismissed their claims without
prejudice. They point to K.S.A. 2020 Supp. 60-241(b)(1), which provides that a dismissal
for lack of jurisdiction does not operate as an adjudication on the merits. The City does
not directly respond to this argument, although it argues the court properly dismissed the
matter.
While the district court properly found the tenants have no private right of action
under the EDPA, we agree its dismissal of the claim for lack of jurisdiction should be
without prejudice under K.S.A. 2020 Supp. 60-241. Thus, we remand and instruct the
district court to vacate the order granting summary judgment for the City and dismissing
the action with prejudice. The district court should instead enter an order of dismissal
without prejudice for lack of jurisdiction.
As mentioned above, since we agree the district court properly granted summary
judgment, the City's cross-appeal is moot.
Reversed and remanded with directions.
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