Bott v. State

No. 124,511

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH A. BOTT,
Appellant,

v.

STATE OF KANSAS and KANSAS HIGHWAY PATROL,
Appellees.

SYLLABUS BY THE COURT

1.
K.S.A. 60-512(2) applies when a statute creates a liability where liability would
not exist except for the statute. For example, an action would not be based on a liability
created by statute if the right would exist at common law without the benefit of the
statute. If the statute merely provides a procedure for obtaining relief, it does not trigger
the application of the three-year statute of limitations under K.S.A. 60-512(2).

2.
Under K.S.A. 60-513(b), in part, the causes of action listed in K.S.A. 60-513(a)
shall not be deemed to have accrued until the act giving rise to the cause of action first
causes substantial injury, or, if the fact of injury is not reasonably ascertainable until a
time after the initial act, then the period of limitation shall not commence until the fact of
injury becomes reasonably ascertainable to the injured party.

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 Appeal from Shawnee District Court; MARY E. CHRISTOPHER, judge. Opinion filed
November 10, 2022. Affirmed.

Kurt A. Harper, of Depew Gillen Rathbun & McInteer, LC, of Wichita, for appellant.

Arthur Chalmers, assistant attorney general, Bryan A. Ross, assistant attorney general, and Derek
Schmidt, attorney general, for appellee State of Kansas.

Sarah E. Washburn, legal counsel, for appellee Kansas Highway Patrol.

Before WARNER, P.J., GREEN and HILL, JJ.

GREEN, J.: Joseph A. Bott appeals after the district court dismissed his lawsuit
against the State and the Kansas Highway Patrol (KHP). The district court also denied a
claim that Bott filed against the Kansas Public Employees Retirement System (KPERS),
who is not a party to this appeal. Bott's claims concerned the Deferred Retirement Option
Program (DROP). Bott claims the district court erred in granting the motion to dismiss
because it improperly applied the statute of limitations, improperly determined when his
claim accrued, and improperly denied his claim against KPERS by misinterpreting
statutes. We conclude that the district court did not err when it applied the statute of
limitations to Bott's claim. We also conclude that the district court did not err in
determining when Bott's claim accrued. Finally, we conclude that the district court did
not err when it denied Bott's claim against KPERS because the district court properly
interpreted the applicable statutes. As a result, we affirm the district court's dismissal of
Bott's claims.

FACTS

Joseph A. Bott began working for KHP in July 1984 and had been enrolled as a
member of the Kansas Police and Firemen's Retirement System (KP&F) throughout his

2
employment with KHP. In June 2016, Bott contacted an employee with KPERS and
requested a retirement benefit estimate if he entered DROP.

In essence, DROP is available to KP&F members with the KHP and Kansas
Bureau of Investigation who are eligible for full retirement. But instead of retiring, a
given employee can elect to participate in DROP and have his or her monthly retirement
benefit accumulate in a DROP account for a period of three, four, or five years—known
as a DROP period—while he or she continues to work. During the DROP period, an
employee does not accrue additional service time credit but can receive interest on the
money in his or her DROP account if KPERS's investment returns each year meet a
certain threshold. Upon retirement, the employee begins receiving his or her monthly
retirement benefits, as well as a lump-sum payment for the money accrued in the DROP
account over the DROP period.

After filing a retirement benefit estimate request, Bott and a KPERS employee
engaged in a series of e-mails in which Bott sought to clarify questions he had about how
DROP worked and how it would affect his retirement benefits if he entered a DROP
program on December 1, 2016. After settling on that date, Bott applied for DROP in
September 2016. Later that same month, Bott sent a letter to Major Jason De Vore. In the
letter, Bott told De Vore that he wanted to enter DROP for a five-year DROP period. At
the end of the month, Colonel Mark Bruce responded to Bott's letter and informed Bott
that his request to participate in a five-year DROP period had been denied.

At some point afterwards, Bruce met with Bott and encouraged him to complete
an application for DROP with a three-year DROP period. After Bott did so, Bruce sent
another letter in October 2016 notifying Bott that his request to enter DROP with a three-
year DROP period had been approved. Bruce then signed Bott's application on the
Appointing Authority line in the Employer Acknowledgement section, and Lea Weishaar
signed the Designated Agent line of the same section. Towards the end of that month, a

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KPERS employee sent Weishaar a letter confirming receipt of Bott's DROP application.
The letter stated that Bott's DROP period began on December 1, 2016, and would end on
November 30, 2019.

In June 2019, Bott contacted KPERS regarding his DROP period, indicating he
wished to change his DROP period from three years to five years. Bott also included his
previous correspondence with De Vore, Bruce, and an undated e-mail from Major Scott
Harrington concerning who could participate in DROP. A few days later, KPERS
responded to Bott's request and notified him that he could not change his DROP period
election because the decision was irrevocable. KPERS's general counsel also sent Bott a
letter explaining why he could not change his DROP period election.

In September 2019, Bott sued the State, KHP, and KPERS in district court. In
brief, Bott alleged that his request to participate in a 5-year DROP period was wrongfully
rejected and sought damages for an amount equal to the 24-month difference between the
3-year DROP period and the 5-year DROP period.

In November 2019, KPERS issued a final agency determination that Bott could
not change his DROP period election. In December 2019, KPERS received Bott's
application for DROP and monthly retirement benefits, which also indicated the DROP
period had been completed. Later the same month, Bott timely appealed KPERS's final
agency determination, and the district court entered an order of dismissal without
prejudice regarding Bott's September 2019 petition, which allowed Bott to seek
exhaustion of his administrative remedies. Shortly afterwards, KPERS notified Bott that
it had received his application and confirmed his retirement date of January 1, 2020.

In November 2020, KPERS issued a final order affirming its determination that
Bott could not change his DROP period election from three years to five years. The
following month, Bott filed another action in district court against the State, KHP, and

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KPERS. In this petition, he sought judicial review of KPERS's final order under the
Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., in count I, as well as
damages from the State and KHP in count II.

The district court later granted the motion to stay discovery and proceedings
regarding count II filed by the State and KHP, pending final resolution of Bott's KJRA
appeal against KPERS in count I. In May 2021, the district court denied count I of Bott's
petition, dismissed KPERS as a defendant, and rescinded its order staying count II of
Bott's petition.

The State and KHP later moved jointly to dismiss Bott's petition regarding
count II, citing the running of the statute of limitations. Initially, the district court denied
the motion but later granted the motion to dismiss after the State and KHP moved jointly
for reconsideration of their initial motion to dismiss.

Bott timely appeals.

ANALYSIS

As an initial matter, we note that the Legislature amended the language of K.S.A.
74-4986n(b), which now reads, in part: "A member who first elected a DROP period of
less than five years may extend, with the employer's authorization, such DROP period
upon making application to the system." The statutory change became effective July 1,
2021. See L. 2021, ch. 75, § 5. Bott did not raise any argument concerning the change
issue in district court, which means he cannot raise it on appeal. See In re Adoption of
Baby Girl G., 311 Kan. 798, 801, 466 P.3d 1207 (2020).

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Did the district court err in applying the statute of limitations?

Bott claims that the district court erred in determining the applicable statute of
limitations in his action. Specifically, Bott contends that the district court erred when it
concluded that K.S.A. 60-512(2) did not apply to his claim.

In its original order regarding this claim, the district court concluded:

"[T]he DROP Act is not a statute which creates liability. Although K.S.A. 74-4986k, et
seq. creates a statutory retirement benefit for [Kansas Bureau of Investigation] agents and
certain firemen and police officers, it does not create any liability separate from
preexisting common law torts. Therefore, the Court finds the three-year statute of
limitations under K.S.A. 60-512 does not apply to the DROP Act."

As stated earlier, the district court did not originally grant the joint motion to
dismiss filed by the State and KHP. But after the State and KHP moved jointly for
reconsideration, the district court concluded that no genuine issue of material fact existed
and granted the joint motion to dismiss.

Our standard of review is this: "Whether a district court erred by granting a
motion to dismiss for failure to state a claim is a question of law subject to unlimited
review." Jayhawk Racing Properties v. City of Topeka, 313 Kan. 149, 154, 484 P.3d 250
(2021). When K.S.A. 2021 Supp. 60-212(b)(6) is used to challenge the legal sufficiency
of a claim, the appellate court will view the well-pleaded facts in a light most favorable to
the plaintiff and assume as true those facts and any inferences reasonably drawn from
them. If those facts and inferences state any claim upon which relief can be granted, then
dismissal is improper. Dismissal is proper only when the allegations in the petition
clearly demonstrate the plaintiff does not have a claim. Kudlacik v. Johnny's Shawnee,
Inc., 309 Kan. 788, 790, 440 P.3d 576 (2019).

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 To the extent that we must interpret statutes, we exercise unlimited review because
statutory interpretation presents a question of law. Nauheim v. City of Topeka, 309 Kan.
145, 149, 432 P.3d 647 (2019). The most fundamental rule of statutory construction is
that the intent of the Legislature governs if that intent can be ascertained. Montgomery v.
Saleh, 311 Kan. 649, 654, 466 P.3d 902 (2020). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language, and it should
refrain from reading something into the statute that is not readily found in its words. 311
Kan. at 654-55.

At issue in this case is whether K.S.A. 60-512(2) or K.S.A. 60-513 applies to
Bott's claim. The two statutes require different causes of action to be brought within
either two or three years. K.S.A. 60-512(2)—the statute that Bott maintains should have
been applied to his claim—provides a three-year limitation period for "[a]n action upon a
liability created by a statute other than a penalty or forfeiture." Bott argues that the State,
by enacting the DROP Act, K.S.A. 74-4986k et seq., created a liability on behalf of the
program participants that had otherwise not previously existed.

In contrast, K.S.A. 60-513(a) states that certain actions must be brought within
two years. The State and KHP argue that Bott's claim was subject to a two-year statute of
limitations under K.S.A. 60-513(a)(3) or (a)(4), which concerns actions for fraud and
actions for injuries to the rights of another, respectively.

We are guided in this inquiry by a previous decision of our Supreme Court that
has considered the issue when K.S.A. 60-512(2) or K.S.A. 60-513 should apply under a
party's claim. Most significantly, in Eastman v. Coffeyville Resources Refining &
Marketing, 295 Kan. 470, 471, 284 P.3d 1049 (2012), Benjamin and Marcita Eastman
sued Coffeyville Resources Refining & Marketing, LLC after it "accidentally released

7
about 90,000 gallons of crude oil into floodwaters of the Verdigris River in Coffeyville."
The Eastmans originally asserted a nuisance claim but later sought to recover damages
under K.S.A. 65-6203, which required compensation to be paid by the person responsible
for an accidental release of materials harmful to the waters or soil to the property owner
where the discharge occurred for actual damages incurred by the property owner as a
result of the release or discharge.

In this case, our Supreme Court had to determine the nature of the liability
imposed under K.S.A. 65-6203. After making that determination, our Supreme Court had
to determine what statute of limitations, if any, applied to K.S.A. 65-6203. On this
argument, the Eastmans maintained that they had timely filed their cause of action
because the three-year statute of limitations embodied in K.S.A. 60-512(2) applied to
their suit. In contrast, Coffeyville Resources argued that the two-year statute of
limitations embodied in K.S.A. 60-513(a)(4) applied because K.S.A. 65-6203 did not
create any new liability. En route to its holding, our Supreme Court stated:

"To determine whether K.S.A. 60-512(2)'s 3-year limitation period for '[a]n
action upon a liability created by a statute other than a penalty or forfeiture' applies in this
case, we apply an 'identical-elements' test. Under that test, we consider 'whether a
plaintiff would have had the same cause of action at common law, not any cause of
action. . . ."
"The identical-elements test requires that we ascertain the most analogous cause
of action under Kansas law. If an analogous common-law cause of action exists, we
compare the elements of that action with the elements of the statute in question. If the
statutory elements are not identical to the elements of the most analogous common-law
cause of action, K.S.A. 60-512(2) applies. [Citations omitted.]" 295 Kan. at 478-79.

After applying the identical elements test, our Supreme Court concluded that the
three-year statute of limitations in K.S.A. 60-512(2) applied to the Eastmans' actions
brought under K.S.A. 65-6203 "[b]ecause the elements necessary to establish liability

8
imposed under K.S.A. 65-6203 are not identical to the elements necessary to impose
liability under the common-law doctrine of strict liability." 295 Kan. at 480.

By contrast, Bott argues that the district court's error "in rejecting the applicability
of the three-year statute of limitations prescribed in K.S.A. 60-512 stems from . . . a
confusion concerning how to properly label [his] claims against the [State and KHP]
under Count II of the Petition." Nevertheless, any confusion the district court had in
labeling Bott's claim would seem to have occurred from Bott's failure to label the claim in
his petition. Even so, Bott contends on appeal that he stated a claim for fraudulent
inducement of a contractual agreement. We agree.

The elements of fraudulent inducement are as follows:

"(1) The defendant made false representations as a statement of existing and material
fact; (2) the defendant knew the representations to be false or made them recklessly
without knowledge concerning them; (3) the defendant made the representations
intentionally for the purpose of inducing another party to act upon them; (4) the other
party reasonably relied and acted upon the representations; (5) the other party sustained
damages by relying upon the representations. A representation is material when it relates
to some matter that is so substantial as to influence the party to whom it is made.
[Citations omitted.]" Stechschulte v. Jennings, 297 Kan. 2, 19-20, 298 P.3d 1083 (2013).

Here, Bott's claim met the essential elements of a fraudulent inducement action.
For example, Bott alleged in his suit the following: (1) Bruce falsely represented he had
discretion to validly reject Bott's original application for a 5-year DROP election; (2)
Bruce either knew he did not have the authority to reject Bott's original DROP period
election or made the representation without knowing whether he had such discretion; (3)
Bruce made such representation because he wanted Bruce to change his DROP election
from a 5-year DROP period to a 3-year DROP period; (4) Bott relied on Bruce's

9
representation; and (5) Bott suffered damages as a result of the money he lost because of
the 24-month difference between a 3-year DROP period and a 5-year DROP period.

Nevertheless, when we contrast the identical elements test discussed in Eastman to
the statute in question in Bott's claim, this Act (K.S.A. 74-4986k et seq.) does not provide
a separate statutory right for Bott to recover damages. For example, in Eastman, the
Eastmans' suit against Coffeyville Resources was based on a statutory right to recover
damages under K.S.A. 65-6203. 295 Kan. at 471-72. Here, Bott's action is not based on
any statutory right to recover damages.

Indeed, in its original order, the district court arrived at the same conclusion,
stating:

"The DROP Act does not resemble any of the statutory acts creating liability that
were cited in Gehring[ v. State, 20 Kan. App. 2d 246, 886 P.2d 370 (1994)], such as the
[Kansas Tort Claims Act], the [Kansas Consumer Protection Act], the veterans'
preference law, etc., as the Drop Act does not contain any provisions for violations of the
act."

Moreover, we have previously stated that "[t]he appropriate inquiry to determine
whether a liability is created by a statute (thus making K.S.A. 60-512[2] applicable) is
whether liability for resultant damages would not arise but for the statute." Haag v. Dry
Basement, Inc., 11 Kan. App. 2d 649, 650, 732 P.2d 392 (1987). In Gehring v. State, 20
Kan. App. 2d 246, 250, 886 P.2d 370 (1994), this court stated:

"In determining whether the three-year statute of limitations applies, our inquiry
is whether the statute created the cause of action. An action is not based upon a liability
created by statute if the right would exist at common law without the statute. A statute is
merely remedial if it does not give any new rights."

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 Our Supreme Court also adopted this approach in Burnett v. Southwestern Bell
Telephone, 283 Kan. 134, 145-46, 151 P.3d 837 (2007), when the court quoted this
court's standard in Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802 (1981). The
Pecenka court reasoned: "It is not enough to simply state that there is an injury to the
rights of another to remove the cause of action from the operation of the three-year
statute of limitations. Rather, the inquiry must be whether the statute created the cause of
action." 6 Kan. App. 2d at 28.

The Pecenka court then cited 51 Am. Jur. 2d, Limitation of Actions § 82, p. 659
and stated:

"'A statute "creates" no liability, as regards the applicability of a statute of limitations
with respect to an action to recover upon a liability created by statute, unless it discloses
an intention, express or implied, that from disregard of the statutory command a liability
for resultant damages shall arise which would not exist except for the statute. Clearly, an
action is not based upon a liability created by statute if the right is one which would exist
at common law in the absence of statute.'" 6 Kan. App. 2d at 28.

Given the absence of any statutory right to recover damages under K.S.A. 74-
4986k et seq., paired with the fact that Bott's claim is identical to the elements of
fraudulent inducement, we conclude that the district court properly rejected the
application of K.S.A. 60-512(2) to Bott's claim.

Did the district court err in determining when Bott's claim accrued?

Next, we must determine whether the district court erred in determining when
Bott's claim accrued. Bott argues "the earliest date on which [his] claim could have
accrued was in November of 2020." The State and KHP argue Bott's claim accrued on
September 30, 2016.

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 The standards of review set forth in the preceding issue regarding a motion to
dismiss also apply to this issue. See Jayhawk Racing Properties, 313 Kan. at 154;
Kudlacik, 309 Kan. at 790.

At this point, it would be helpful to recap the timeline of Bott's case. Bott
completed his DROP application on September 1, 2016. On September 22, 2016, Bott
sent a letter to De Vore stating he wished to enter DROP for a five-year DROP period.
On September 30, 2016, Bruce responded to Bott's letter and informed Bott that his
request to participate in a five-year DROP period had been denied. At some point
afterwards, Bruce met with Bott and encouraged him to complete an application for
DROP with a three-year DROP period.

After Bott complied, Bruce sent another letter on October 12, 2016, notifying Bott
his request to enter DROP with a three-year DROP period had been approved. On
October 18, 2016, KPERS received Bott's DROP application. On October 20, 2016,
Bruce signed Bott's application on the Appointing Authority line in the Employer
Acknowledgement section. Weishaar signed Bott's DROP application on October 21,
2016, on the Designated Agent line in the Employer Acknowledgement section. On
October 25, 2016, a KPERS employee sent Weishaar a letter confirming receipt of Bott's
DROP application. The same day, a KPERS employee sent Bott a letter confirming his
DROP start and end dates.

On June 5, 2019, KPERS's general counsel notified Bott he could not change his
DROP period election. On November 15, 2019, KPERS issued a final agency
determination that Bott could not change his DROP period election. On December 4,
2019, KPERS received Bott's application for DROP and monthly retirement benefits,
which also indicated the DROP period had been completed. On December 9, 2019, Bott
appealed KPERS's final agency determination. On December 11, 2019, KPERS notified
Bott it had received his application and confirmed his retirement date of January 1, 2020.

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On November 20, 2020, KPERS issued a final order affirming its determination that Bott
could not change his DROP period election from three years to five years.

Having concluded that Bott's claim is governed by K.S.A. 60-513(a), we must
determine the date Bott's claim accrued. This statute states:

"[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until
the act giving rise to the cause of action first causes substantial injury, or, if the fact of
injury is not reasonably ascertainable until some time after the initial act, then the period
of limitation shall not commence until the fact of injury becomes reasonably
ascertainable to the injured party." K.S.A. 60-513(b).

This leads us to two inquiries related to determining when the statute of limitations
on Bott's claim began to run: (1) When did Bott "suffer an actionable injury—i.e., when
were all the elements of the cause of action in place? and (2) When did the existence of
that injury become reasonably ascertainable to [him]?" LCL v. Falen, 308 Kan. 573, 583,
422 P.3d 1166 (2018).

In its July 2021 order, the district court identified September 30, 2016, as the
triggering date. The district court based this conclusion on the fact that Bott identified
that date as the date of KHP's wrongful conduct. The district court also deemed Bott's
"argument concerning his pursuit of administrative remedies with KPERS" was
confusing because his claim concerned the alleged wrongful conduct of KHP. As a result,
the district court concluded that if Bott "is asserting a claim of fraud, fraudulent
inducement, or negligent misrepresentation, and he first filed his Petition in Shawnee
County District Court," the State and KHP were correct that his claim was barred by
K.S.A. 60-513. Nonetheless, the district court did not originally grant the State and
KHP's motion for dismissal because "genuine issues of material fact remain based on
[Bott's] assertion that he first filed a lawsuit in Sedgwick County on September 17,
2019." But after the State and KHP moved jointly for reconsideration, the district court

13
granted the motion to dismiss because Bott's lawsuit filed on September 17, 2019, was a
year later than the two-year statute of limitations, and Bott did not sustain his burden to
provide information to support his assertion the statute of limitations had been tolled.

As stated earlier, Bott argues that "the earliest date on which [his] claim could
have accrued was in November of 2020." Bott's brief does not specify a date on which he
suffered an actionable injury. See Falen, 308 Kan. at 583. Instead, he essentially
combines the two inquiries and argues his claim could not have accrued until he "had
exhausted his efforts to obtain a 5-year benefit and that there was, in fact, no injury until
the end of his three years and the refusal of KPERS and KHP to allow him a five-year
election as he had originally attempted." He also argues that his claim could not have
accrued until his injury had matured into being actionable, which he believes occurred
after he completed his DROP period.

The State and KHP disagree and argue that Bott's action "could and should have
been commenced within two years of [his] signature on his paperwork for enrollment into
the DROP program on September 30, 2016. If not on the September 2016 date, then at
the very latest, within two-years of [KPERS's] acceptance of the enrollment paperwork."
The State and KHP contend that Bott suffered his alleged injury on September 30, 2016,
when Bruce denied Bott's request to participate in a five-year DROP period. The State
and KHP also contend that the extent of his injury was reasonably ascertainable on that
date because he knew the decision was irrevocable, and he had already received an
estimation of his retirement benefit payments. Lastly, the State and KHP assert that Bott
was not required to exhaust administrative remedies against KPERS before filing his tort
action against the State and KHP.

As an initial matter, the State and KHP are correct that KPERS is not a party to
Bott's appeal. In Bott's December 2020 petition, he separated his claims against KPERS
and his claims against the KHP in counts I and II, respectively. In count I Bott sought

14
judicial review of KPERS's determination that he could not change his initial DROP
election period, and he asked the district court to only reverse KPERS's final order. But in
count II, he sought relief for KHP's alleged wrongful actions. Thus, it is unclear why Bott
would have to wait until KPERS issued a final agency determination to pursue a tort
claim against the State and KHP.

In Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984), our Supreme Court dealt
with an analogous situation. There, Roe brought a negligence action against Diefendorf,
seeking damages for injuries suffered in an automobile accident. The accident occurred in
November 1979, and Roe filed suit against Diefendorf in June 1982. Diefendorf sought
summary judgment against Roe, claiming the statute of limitations had run. The district
court denied the motion, reasoning that the statute of limitations under K.S.A. 60-513(b)
had not run because Roe did not realize he sustained a substantial injury until February
1981.

On appeal, our Supreme Court had to determine how K.S.A. 60-513(b)'s
"substantial injury" provision should be interpreted. Our Supreme Court began by
discussing previous decisions and noted what appeared to be a conflict in how cases
involving knowledge of an injury versus extent of an injury were decided. In resolving
this issue, our Supreme Court stated:

"Our decisions are reconcilable. The rule which has developed is: The statute of
limitations starts to run in a tort action at the time a negligent act causes injury if both the
act and the resulting injury are reasonably ascertainable by the injured person. In Hecht[
v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971)], neither the
negligent act nor the injury were ascertainable until a later date. The stated rule provides
a constitutionally permissible interpretation of K.S.A. 60-513(b). We hold the use of the
term 'substantial injury' in the statute does not require an injured party to have knowledge
of the full extent of the injury to trigger the statute of limitations. Rather, it means the
victim must have sufficient ascertainable injury to justify an action for recovery of the

15
 damages, regardless of extent. An unsubstantial injury as contrasted to a substantial
injury is only a difference in degree, i.e., the amount of damages. That is not a legal
distinction. Both are injuries from which the victim is entitled to recover damages if the
injury is the fault of another." Diefendorf, 236 Kan. at 222.

In Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986), a case
concerning a legal malpractice claim, our Supreme Court explained that "a cause of
action accrues, so as to start the running of the statute of limitations, as soon as the right
to maintain a legal action arises. . . . [A]n action accrues [when] the plaintiff could first
have filed and prosecuted his action to a successful conclusion." More recently, our
Supreme Court again adhered to the rule pronounced in Pancake House in another legal
malpractice claim and stated that "'[a] cause of action accrues when the right to institute
and maintain a suit arises, or when there is a demand capable of present enforcement.'"
Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 633, 355 P.3d 667
(2015) (quoting Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 410, 582 P.2d 244
[1978]).

Applying these principles, we determine that the district court correctly concluded
that Bott—by bringing his tort claim against the State and KHP—suffered the alleged
injury on September 30, 2016, because that is the date when Bruce denied his request to
participate in a five-year DROP period. In the alternative, we conclude that Bott's alleged
injury occurred on October 25, 2016, when KPERS sent Bott a letter confirming his
DROP start and end dates.

We further conclude that Bott could have reasonably ascertained the extent of his
injuries on either of those dates. See Falen, 308 Kan. at 583. Stated differently, Bott
could have or should have known the existence of the injury he claimed to have suffered
on either of those dates because that is when Bruce denied his application for a five-year
DROP period and his participation in a three-year DROP period became official. His

16
DROP application form supports this conclusion because, in the DROP Commitment
section, Bott selected December 1, 2016, as his irrevocable start date. And above his
signature, the application states: "I confirm my election to participate in the DROP, and I
understand that this election is irrevocable."

This conclusion is also supported by the versions of the statutes in effect when
Bott entered DROP in 2016. The version of K.S.A. 74-4986l(a)(5) in effect then defined
the DROP period as "the period of time that a member irrevocably elects to participate in
the DROP pursuant to K.S.A. 74-4986n, and amendments thereto." Similarly, the version
of K.S.A. 74-4986n(b) in effect then stated, in relevant part: "A member may participate
in the DROP only once. An election under this section is a one-time irrevocable
election."

Additionally, as our Supreme Court stated in Diefendorf, Bott was not required "to
have knowledge of the full extent of the injury to trigger the statute of limitations. Rather,
[substantial injury] means the victim must have sufficient ascertainable injury to justify
an action for recovery of the damages, regardless of extent." 236 Kan. at 222. The fact
Bott might not have known the precise total of damages he would have been owed does
not change this conclusion because that would be a "difference in degree," "not a legal
distinction." 236 Kan. at 222.

Thus, under K.S.A. 60-513(b), Bott suffered an actionable injury on either
September 30, 2016, or October 25, 2016, and the existence of the injury became
reasonably ascertainable then. See Falen, 308 Kan. at 583. As a result, Bott's claim
against the State and KHP needed to have been brought within two years from those
dates. See K.S.A. 60-513(a). Because he failed to do so, we conclude that the district
court correctly dismissed his claim.

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Did the district court err by denying Bott's claim against the Kansas Public Employees
Retirement System?

In Bott's final claim, he contends that the district court erred when it concluded
that KPERS could not accept his application to participate in a five-year DROP period
after he had already selected a three-year DROP period. The State and KHP, however,
argue that this issue is not properly before us because KPERS is not a party to this appeal.
Neither Bott's original brief nor his reply brief challenges this contention. As stated
earlier, the State and KHP are correct that KPERS is not a party to this appeal.

Even so, we conclude that the district court did not err in denying Bott's claim
against KPERS. As previously stated, we exercise unlimited review when interpreting
statutes. See Nauheim, 309 Kan. at 149.

When Bott filed his action against the State, KHP, and KPERS, he sought judicial
review under the KJRA—based on K.S.A. 77-601 et seq. Bott challenged KPERS's
determination that he could not change his DROP period election from three years to five
years. He did not list a specific ground for relief; he simply asked the district court to
deem KPERS's decision erroneous.

When resolving the claim on judicial review, the district court correctly noted that
K.S.A. 77-621(c) sets forth the grounds on which a court can grant relief. Ultimately, the
district court concluded that Bott's claim was brought under K.S.A. 77-621(c)(4), which
allowed the district court to grant relief if it determined that KPERS "erroneously
interpreted or applied the law." The district court then moved to statutory interpretation,
assessing Bott's claim under the versions of the statutes in effect then.

As the district court pointed out, the version of K.S.A. 74-4986n(b) in effect when
Bott began participating in DROP stated, in relevant part: "A member may participate in

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the DROP only once. An election under this section is a one-time irrevocable election."
Similarly, the version of K.S.A. 74-4986l(a)(5) in effect then defined DROP period as
"the period of time that a member irrevocably elects to participate in the DROP pursuant
to K.S.A. 74-4986n, and amendments thereto."

Having concluded Bott failed to sustain his burden under K.S.A. 77-621(a), the
district court denied Bott's claim. We conclude the same. The district court followed the
correct procedure under the KJRA and properly interpreted the statutes. As a result, we
conclude that the district court properly denied Bott's claim against KPERS.

Affirmed.

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