Opinion
No. 110752.
02-13-2015
Michael and Pamela JENSEN, Appellants, v. The COUNTY OF JOHNSON, Kansas, Appellees.
Constance L. Shidler, of Smithyman & Zakoura, Chartered, of Overland Park, for appellants. Robert A. Ford, assistant county counsel, of Johnson County Legal Department, for appellee.
Constance L. Shidler, of Smithyman & Zakoura, Chartered, of Overland Park, for appellants.
Robert A. Ford, assistant county counsel, of Johnson County Legal Department, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael and Pamela Jensen purchased property in Johnson County adjacent to property that was owned by Johnson County (County). The County had leased its property to First Industrial Investment, Inc. The Jensens argue that after construction of a 450,000 square foot paper-product warehouse and distribution center by First Industrial, water runoff from the County's property rendered their property unusable. The Jensens sued the County for negligence, inverse condemnation, nuisance from water runoff, and nuisance from inadequate construction of a berm shield between the two properties. The district court granted summary judgment to the County on alternative theories.
First, the district court found the Jensens' notice of claim to the County did not comply with K.S.A. 12–105b of the Kansas Tort Claims Act and, therefore, summary judgment was appropriate on the Jensens' claims of negligence and both claims of nuisance. Alternatively, the district court rejected three of the Jensens' claims on the merits. The court found:
(1) The County had no liability in negligence because it was the landlord;
(2) Inverse condemnation failed because the First Industrial property was used for a private commercial use, not a public use; and
(3) The County was not responsible in nuisance for design of the water retention basin on its land because it was enforcing its rules, regulations, and codes.
The court also found the Jensens' berm claim survived summary judgment due to fact questions regarding the statute of limitations, but the claim was still dismissed based on the inadequate notice of claim.
Facts
On November 19, 1973, the United States Government gave a quitclaim deed to Johnson County for the Olathe Naval Air Station property. The Johnson County Airport Commission (JCAC) operated the New Century Air Center (New Century) on this property. In early 2007, the JCAC contracted with TranSystems, Inc. (TranSystems) in an owner-authorization agreement to act on behalf of the JCAC for the purpose of making application with the Johnson County planning office for what was termed “Project Rosemary.”
TranSystems later contracted with First Industrial Realty Trust to serve as the project's design professional. TranSystems described the proposed development property as grass covered gentle rolling hills. There were no streams and no evidence of flooding on the 40–acre site. TranSystems indicated that on-site and off-site water detention would be pursuant to the American Public Works Association (APWA) § 5600 “Storm Drainage Systems and Facilities” as required by the Johnson County Public Works Department (public works).
On March 29, 2007, the Board of County Commissioners of Johnson County (Board) approved the development plan submitted by TranSystems for construction of a 450,000 square foot paper-product warehouse and distribution center. The resolution provided that a stormwater management plan had to be approved by public works. The Jensens contend “Project Rosemary” was on County-owned land and it was a joint venture between the County and First Industrial.
In April 2007, the Board authorized the issuance of $20,000,000 in federally-taxable private activity bonds to finance the construction cost of the proposed warehouse to be located at New Century and occupied by the Kimberly–Clark corporation. In early May 2007, TranSystems communicated with the public works department concerning the development of the detention basin on the leased property and its specifications. In an email dated May 10, 2007, the public works department indicated that all its issues concerning the storm drainage on Project Rosemary had been addressed.
On May 30, 2007, the County, acting though the JCAC, entered into a long-term ground lease with First Industrial as the tenant, for the “purpose of constructing, owning, operating, and leasing improvements on the land” located at New Century. The term of the lease, with extensions, could run for 99 years. On July 16, 2007, the Board also entered into a development agreement with First Industrial including terms and conditions for infrastructure improvements concerning water/fireflow, sewers, existing roads, and new roads and stormwater. The development agreement stated: “WHEREAS TranSystems, Inc., made application to the County on behalf of the Developer requesting preliminary and final development approval to allow [construction of the warehouse].” The development agreement also stated that the ground lease and the sublease contemplated the construction of the improvements by the developer at the JCAC's ultimate cost and expense.
In November 2007, under statutory bond financing procedures, the County acquired legal title to the newly constructed on-site improvements and leased them back to First Industrial for the life of the bonds. In January 2008, First Industrial sent the County a notice of completion of the improvements. On February 5, 2008, email communications indicate the public works department stated: “The streets and detention basin have been approved.”
Prior to the construction of the First Industrial warehouse facility, the 39–acre leasehold site was unimproved. Under the ground lease, First Industrial was to construct the prop.osed buildings and other improvements upon the land, seek all necessary permits, and address all applicable regulatory ordinances, building codes, and environmental aspects of such construction. The “use section” of the ground lease allowed First Industrial to construct, own, maintain, utilize, operate, lease and/or occupy a warehouse, distribution, and/or light industrial facility with office space. First Industrial owned the improvements and the County, as landlord, had no right, title, interest, or claim in any improvements or other improvements, fixtures, or buildings placed on the premises by or on behalf of the tenant.
The ground lease obligated First Industrial to keep the premises and any improvements existing on the premises in a good state of maintenance and repair. County staff, acting in their official capacities, reviewed the applicant's development plan submittals for the leasehold improvements, including plans for on-site stormwater detention prepared by TranSystems, and made suggestions regarding those plans. In response to the County staff comments, the emergency spillway location for the detention basin was changed to route detained stormwater into its natural drainage channel.
On October 9, 2007, the Jensens purchased 30 acres adjacent to the First Industrial leasehold. In his deposition, Michael Jensen testified it was their intent to build their retirement dream home on the property situated to overlook the property's man-made pond and a small island. The Jensens paid $289,000 for the land. The property was zoned RUR—Rural District. Construction of the warehouse was underway by that time. First Industrial took occupancy of the warehouse on November 5, 2007, just short of a month after the Jensens closed on the purchase of their land. The First Industrial leased property was zoned PEC–3—Planned Light Industrial Park District. The properties' zoning classifications were established in 1994.
The Jensens argue they undertook extensive due diligence procedures in connection with purchase of the land, including environmental site assessments, meetings with the planning office, review of plans involving the berm, lighting, detention basin, and water run-off. During argument on the summary judgment motion, the Jensens' counsel explained how the damages arose in 2009:
“Well, the County also knows full well that every time there was a rain event that was sufficient enough to cause the kind of flooding that they have out there now, Mr. and Mrs. Jensens' pond was drained. There was no dam. And all that water just ran right through. There is nothing to stop it.”
The County states the Jensens' pond was improper to even handle predevelopment stormwater flows. A preliminary wetland report indicated that on September 20, 2007, Kent Lage for the public works department inspected First Industrial's property and stated that the retention ponds were in place but not operating yet.
It appears the Jensens have three claims concerning the detention basin. First, they claim the County underestimated the detention storage volume of the stormwater runoff Second, they contend TranSystems removed the “small wet volume” as directed by the County so no water would pond and it caused a reduction in detention capacity and an increase in direct water downstream. Third, the Jensens claim the relocation of the emergency spillway caused all stormwater to be directed onto the Jensens' property and this was not a natural drainage channel for that amount and velocity of water.
In July 2009, the Jensens began communication with the Johnson County planning office about their concerns dealing with stormwater and sight lines. On July 30, 2009, the planning office sent the Jensens a letter summarizing the County's position that the pond outlet system on the Jensens' property was significantly undersized for the amount of drainage area flowing into the pond with or without the improvements made on First Industrial's leased property. The letter also stated:
“In May of 2007, Public Works staff directed the building owner's design consultant to modify the spillway and direct the flow in the appropriate westerly direction. This modification allowed all of the stormwater runoff to remain with the existing basin and to follow the natural grade of the area. In order to make this change, the length of the berm was reduced about 100 feet. However, this modification is consistent with the requirements of resolution adopted by the Board of County Commissioners on March 29, 2007. Stipulation 20 of the resolution notes that ‘Modifications to the stormwater system, due to unforeseen conditions, shall only be allowed as approved by the County Public Works Department.’...
“At this time, we believe that the berm complies with the conditions of approval, March 2007.”
All of the referenced changes were incorporated at the direction of the public works department.
It was not until January 19, 2011, that the Jensens provided a notice of claim to the County detailing the flooding occurring on their property as a result of the construction of the warehouse and improper drainage. On February 4, 2011, the assistant county counselor denied the notice of claim in an email stating:
“The County must deny your clients' claim against the County for the alleged damages of $1.5M to their property. Rather than allow the 120 days to run on the notice of claim you have filed on your clients' behalf, I wanted to let you know of the Board's decision in a timely manner. The e-mail may be considered as the County's formal response.”
On May 2, 2011, the Jensens filed a petition in district court. The Jensens raised multiple claims including:
(1) The County's negligence in the construction, design, and placement of the improvement resulted in irregular and concentrated water flow over their property;
(2) Inverse condemnation by the unlawful taking by the County without compensation; and
(3) Nuisance since the irregular and concentrated water flow onto their property unreasonably interfered with their right to quiet enjoyment.
The Jensens later added a second allegation of nuisance claiming the County inadequately constructed a berm to shield them from the structures and noise on the County's property. The parties filed multiple motions for summary judgment.
The district court granted summary judgment to the County on all of the Jensens' claims. The court found the Jensens' notice of claim to the County did not comply or substantially comply with the requirements of K.S.A. 12–105b. The court held the Jensens' notice of claim failed to state the amount of damages requested. Therefore, summary judgment was appropriate on the Jensens' tort claims of negligence and nuisance.
Alternatively, the district court granted summary judgment on the merits of three out of four of the Jensens' claims.
First the district court stated the County's property was subject to a lease and the leasehold improvements, including the detention basin, were designed by someone other than the County. Therefore, the County had no liability in negligence because it was the landlord.
Second, the district court rejected the Jensens' inverse condemnation claim because the County's property was being used for private commercial use, as opposed to a compensable public use.
Third, the district court held that because its property was leased and someone else designed the detention basin, the only thing the County did was enforce its rules, regulations, and codes.
The district court stated the County was not responsible for nuisance even if there was a nuisance.
The Jensens appeal.
Analysis on the Issue of Substantial Compliance with K.S.A. 12–105b(d)
The Jensens first argue the district court erred in finding their notice of claim did not comply or substantially comply with K.S.A. 12–105b(d) of the Kansas Tort Claims Act (KTCA).
When the contents of the purported notice are uncontroverted, whether a plaintiff has substantially complied with K.S.A.2013 Supp. 12–105b(d) involves only statutory interpretation, and, accordingly, is a question of law subject to de novo review. See Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 774, 304 P .3d 1239 (2013) ; Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 638, 205 P.3d 1265 (2009) ; Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 871, 127 P.3d 319 (2006).
K.S.A.2013 Supp. 12–105b(d) requires anyone bringing a claim against a municipality under the KTCA, K.S.A. 75–6101 et seq. , to provide that municipality with prior written notice setting out the specific facts and circumstances giving rise to the claim. Notice is a prerequisite to filing an action against a municipality. Failure to substantially comply with the statute precludes a plaintiff from obtaining relief in district court. Continental Western, 297 Kan. at 774.
K.S.A.2013 Supp. 12–105b(d) provides: “Any person having a claim against a municipality which could give rise to an action brought under the [KTCA] shall file a written notice as provided in this subsection before commencing such action.” K.S.A.2013 Supp. 12–105b(d) expressly states that notice is deemed effective if the notice substantially complies with statutory requirements. Substantial compliance means compliance in respect to the essential matters necessary to assure every reasonable objective of the statute. 297 Kan. at 775.
There are five content notice requirements specified in K.S.A.2013 Supp. 12–105b(d) that must be given:
(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 claim's factual basis, 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 being requested.
See Continental Western, 297 Kan. at 774–75 ; Dodge City Implement, 288 Kan. at 639.
It does not appear the district court considered whether the Jensens' notice of claim substantially complied with the required statutory notice under K.S.A.2013 K.S.A. 12–105b(d) or even applied any cases dealing with substantial compliance. The Jensens' notice of claim provided in a section entitled “Statement of Monetary Damages”:
“Claimant was asked by the Johnson County Commission to provide evidence of market value of the Affected Property. Attached is an Appraisal dated November 8, 2010, conducted by Dillon & Witt, Inc. of the Affected Property. It is the opinion of Dillon & Witt that the market value of the Affected Property is $1,575,000 based on highest and best use.
“It is the position of the Claimant that the damage caused by, and which continues to occur by reason of the failure to construct the berm as required by Johnson County, and the inadequate retention basin on the County's property has rendered the Affected Property unusable.”
In responding to the Jensens' notice of claim, the assistant county counselor sent the Jensens' counsel the following denial in an email:
“The County must deny your clients' claim against the County for the alleged damages of $1.5M to their property. Rather than allow the 120 days to run on the notice of claim you have filed on your clients' behalf, I wanted to let you know of the Board's decision in a timely manner. The e-mail may be considered as the County's formal response.”
In its motion to dismiss for inadequate notice of claim, the County raised several arguments:
(1) the Jensens' notice failed to include a specific amount of damages, plus made no reference to lost commercial rental revenue;
(2) the nature of the injury in the Jensens' notice sounded in trespass and taking of the subject property, i.e. inverse condemnation claim, not issues of negligence and nuisance raised in the petition;
(3) the Jensens' notice failed to name county officials and employees or any addresses; and
(4) the claimant changed from the Jensens to a trust controlled by the Jensens.
The district court did not address all of these claims in its decision.
Instead, in granting summary judgment, the district court held:
“The court finds that the Jensens' Notice of Claim stating that the property valued at $1,575,000 was ‘unusable’ did not state a damages amount. Dodge City Implement v. Board of Barber County Commissioners, 288 Kan. 619, 205 P.3d 1265 (2009).
“The Court finds that acknowledgement of $1.5 million in damages by the Assistant County Counselor, Robert Ford, in his denial of claim to be a mistake and that Mr. Ford was not at liberty to waive the statutory requirement of a damages amount.
“Thus, the Jensens' K.S.A. 12–105b Notice of Claim does not comply or substantially comply with the statutory requirements and the County is granted summary judgment on Counts I, III, and IV on that basis.”
Now, on appeal, the Jensens argue the only claim addressed by the district court was the County's claim of an inadequate statement of damages. The Jensens argue the County did not file a cross-appeal and should be limited to the issue of an inadequate statement of damages and not any of the alternative claims it raised in the motion to dismiss and not addressed by the district court.
In its brief, the County addresses the statement of damages issue, but also argues that even if substantial compliance saves the Jensens' notice of claim for the amount of damages, the notice of claim does not match the nature of the action in the petition:
“[The] Jensens contend their notice contained a damages amount. Even if true, a statutory notice only allows suit on the claims made in the notice. It is fundamental the factual underpinnings, the nature, and the amount of damages must be first disclosed in a notice. But where the subsequent allegations made in the petition do not match that notice, subject matter jurisdiction is lacking.”
The County argues the district court did not say that failing to include damages was the only problem, but rather was the “biggest” problem. However, the County concedes the journal entry was based only upon a claim of a deficient statement of damages.
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statute. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). Pursuant to K.S.A.2013 Supp. 60–2103(h), an appellee must file a cross-appeal for “a review of rulings and decisions of which such appellee complains.” See Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191–92, 106 P.3d 483 (2005).
In this case, the district court relied only on the County's statement of damages argument in rendering a decision. It made no findings or rulings on whether the notice of claim was improper for the four other reasons alleged in the County's motion to dismiss. The court made no factual findings regarding those unaddressed reasons. The other four alternatives were raised in the court. Compare Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011) (issues not raised below cannot be raised on appeal). Clearly, the County was also successful by having the court grant the motion to dismiss. However, the problem is that the rationale relied upon by the court was only related to the statement of damages. Consequently, without a cross-appeal, we are without jurisdiction to address the County's alternative rationales for summary judgment in their favor.
In Bouton v. Byers, 50 Kan.App.2d 35, 321 P.3d 780 (2014), the court discussed what the County should have done. In Bouton, the district court granted summary judgment to Byers on the alleged claim he had made a promise to Bouton, his daughter, to bequeath her valuable ranchland. The Bouton court reversed the summary judgment ruling by holding that the record demonstrated disputed issues of material fact precluding the district court's legal conclusion that the promise could not have been reasonably intended or relied upon in the way Bouton suggested. Relevant for the case at bar is that fact that Byers cross-appealed on various arguments he claimed would otherwise bar Bouton's actions. The court stated:
“A district court may be affirmed if it reaches the right result for the wrong reason. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). Both in the district court and in his cross-appeal, Byers offers alternative legal arguments he contends entitled him to summary judgment on Bouton's promissory estoppel claim. We find those points unavailing and reject them as insufficient to prop up the judgment.” (Emphasis added.) 50 Kan.App.2d at 49.
Additionally, whether the injuries alleged in the notice of claim match the injuries stated in the petition, does not present a legal question, but rather one fraught with factual determinations. Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) places on the district court the primary duty to provide adequate findings and conclusions on the record of the court's decision on contested matters. A party, however, must object to inadequate findings of fact and conclusions of law to preserve an issue for appeal. Such objections necessarily give the district court an opportunity to correct any alleged inadequacies. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). When no such objection is made, an appellate court can presume the district court found all facts necessary to support its judgment. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).
We limit our discussion solely to a determination of whether the Jensens' notice of claim substantially complied with the statement of damages required under K.S.A. 12–105b(d). The question of compliance is not based upon a “mechanical counting” of information addressing each enumerated category in the statute. Instead, notice is sufficient if it gives the municipality what it needs for a “full investigation and understanding of the merits of the claims advanced.” Continental Western, 297 Kan. at 775. This is achieved when the notice advises the municipality of the time and place of the injury, affords the municipality an opportunity to ascertain the character and extent of the injury sustained, and allows for the early investigation and resolution of claim disputes. 297 Kan. at 778.
The Jensens distinguish their case from those where there was a complete absence of a substantive statement of damages. Notice that lacks any statement of monetary damages claimed against the municipality cannot reasonably be seen to meet the objectives and/or requirements of K.S.A.2013 Supp. 12–105b. See Garcia v. Anderson, 46 Kan.App.2d 1094, 1104, 268 P.3d 1248 (2012) (Without the municipality's understanding of the extent of alleged damages, the legislature's obvious desire to facilitate early and easy resolution of a claim was undermined.) rev. denied 296 Kan. 1129 (2013); accord Dodge City Implement, 288 Kan. at 642 (Letters identified an incorrect claimant; they did not identify the ultimate plaintiffs in the suit, give their addresses, or set forth the name or address of their counsel. They also did not put the County or the Township on notice of the extent of the damages sought on the negligence or negligence per se claims.). Some mention of damages or the value of the claim is essential notice under K.S.A.2013 Supp. 120–105b(d), otherwise it is impossible for a municipality to evaluate what is at stake without any indication as to what the claimant wants.
In Continental Western, the Kansas Supreme Court held there was substantial compliance when a claimant demanded the same damages in both the notice and its petition, even though the claimant later sought to amend the pleadings and pursue a much higher damages amount as the facts developed in the litigation. The court held that under the facts of that case the notice provided sufficient information to advise the defendants about the extent of injuries, afforded the municipality an opportunity to fully investigate the claim's merits, and did not disturb the statutory purpose of facilitating early and easy claim resolution. The court held any dispute regarding subsequent amendments to the pleadings could be decided by the district court under K.S.A. 60–215. 297 Kan. at 778.
In Tucking v. Board of Jefferson County Com'rs, 14 Kan.App.2d 442, 447, 796 P.2d 1055 (1990), the plaintiff argued he had substantially complied with the terms of the notice statute, even though he had not stated the amount of monetary damages or the type of injury suffered. The Tucking court stated: “Decisions interpreting predecessors to 12–105b have been fairly strict in determining the minimum requirements for notice, despite language about substantial compliance.” 14 Kan.App.2d at 446. However, the court noted there cannot be substantial compliance if one element is “completely missing” and agreed with the district court that Tucking's notice was not in substantial compliance with K.S.A. 12–105b(d). 14 Kan.App.2d at 446, 448.
In Wiggins v. Housing Authority of Kansas City, 19 Kan.App.2d 610, 873 P.2d 1377, rev. denied 255 Kan. 1007 (1994), the court applied the Tucking standard where plaintiffs had filed a tort claim alleging retaliatory discharge. The court found: “Nothing in either of plaintiffs' notices referred to any whistle-blowing activity, nor did either notice state that plaintiffs were discharged in retaliation for whistle blowing.” 19 Kan.App.2d at 614. Therefore, the court held that plaintiffs had not substantially complied with the statutory notice provisions.
In the Jensens' case, the notice of claim provided a description of the events leading to the flooding of their property and alleged that the actions of the County caused damage to the property and injury to the Jensens. The district court determined the notice had failed to adequately state an amount of damages. We disagree. The notice of claim stated the Jensens' property had been rendered unusable by the actions of the county and the property had been professionally appraised at $1,575,000 at the time the notice was filed. The County stated in its brief, “[R]eading [the two paragraphs of the Jensens' statement of damages] one might conclude that a claim for a total taking was being alleged, but that is dispelled by closely reading the demand language.”
We disagree with the district court's analysis and/or failure to consider substantial compliance. While the Jensens could certainly have stated their damages with greater specificity, their attempt to state an amount of damages constituted substantial compliance with the statutory notice provisions. In Tucking, the notice entirely neglected two statutory elements. The notice in this case substantially complied with all five of the required elements. The district court erred in granting summary judgment against the Jensens for failure to comply with the statutory notice provisions. Because we find the Jensens' notice substantially complied with the KTCA, we will not address the district court's finding that the assistant county counselor's acknowledgement of the $1.5 million in damages was a mistake and that he was not at liberty to waive the statutory requirements under the KTCA for listing the damage amount. However, in terms of substantial compliance, the County's denial in the email is additional proof the County understood the Jensens' claim of $1.5 million and rejected it. Arguably, the email demonstrates exactly how the purposes of the notice provisions of the KTCA were fulfilled.
Substantial compliance is the key here. The Jensens' notice substantially complied with K.S.A. 12–105b. It is sufficient because it gave the County all the information it needed for full investigation and understanding of the merits of the claims advanced. See Continental Western, 297 Kan. at 775. The Jensens' notice included a full appraisal of the property and facts indicating how the flooding of the property had rendered the property “unusable.” It is not a stretch of substantial compliance to hold the conclusion from the Jensens' notice was that the Jensens' property was worth $1.5 million and the County had damaged them in that amount by rendering their property “unusable” due to continuing water discharge damage. Consequently, we reverse the district court's ruling on the notice of claim pursuant to K.S.A. 12–105b and find the Jensens substantially complied with the statute.
Analysis of the Landlord Issue
The first argument on the merits is the Jensens' claim the district court erred in granting summary judgment to the County by finding that since the County was a landlord of the property, it was shielded from liability. Under this rationale, the County's tenant, First Industrial, would be considered the owner of the property. The County also points out that the leasehold improvements, including the detention basin, were designed by TranSystems rather than the County.
Our standard of review of summary judgments has been stated often and is well known. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any supporting affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A.2013 Supp. 60–256(c)(2). The court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. In order to preclude summary judgment, the facts subject to the dispute must be material. Summary judgment is not appropriate if reasonable minds can differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) ; see Supreme Court Rule 141 (2014 Kan. Ct. R. Annot. 257). On appeal, we apply these same rules de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
Under Kansas law, in order to submit a triable negligence claim, the Jensens must establish that (1) the County owed a duty to the Jensens, (2) a breach of that duty occurred, (3) the Jensens sustained damage, and (4) the damage was caused by the breach of the duty. See Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220–21, 262 P.3d 336 (2011). Whether a duty exists presents a question of law and determining whether the defendant breached that duty presents a question of fact. 293 Kan. at 221.
As far as nuisance is concerned, in Williams v. Amoco Production Co., 241 Kan. 102, 117–18, 734 P.2d 1113 (1987), our Supreme Court, announced four requirements for recovery on a private nuisance claim: (1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; (2) there was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended; (3) the interference that resulted and the physical harm, if any, from that interference proved to be substantial; and (4) the interference was of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.
In the present case, the Jensens concede that Kansas courts apply a general rule of no liability for landlords. However, they contend the district court failed to consider the exceptions to this rule.
The general rule in Kansas is that no liability rests upon a landlord, either to a tenant or to others entering the property, for defective conditions existing at the time of the lease. The seminal case addressing landlord liability is Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975). In Borders, a tenant's social guest was injured when he slipped on some ice on the front steps of the residence. The ice had formed because the residence had no gutters to properly drain water from the roof, a condition known by both the landlord and the tenant. The social guest sued the landlord to recover for his injuries, and the case proceeded to a bench trial. After hearing the evidence, the district court concluded as a matter of law that the landlord owed no duty for injuries caused by unsafe conditions on a leased premises.
On appeal, the Kansas Supreme Court affirmed the district court's judgment. The Borders court explained that because property law regards a lease as a sale of the premises for the term, the tenant becomes the owner and occupier for the term and assumes all responsibilities of one in possession of the premises. Thus, a landlord who has ceded possession of the premises to a tenant generally cannot be held liable for injury caused by unsafe conditions on the premises, even unsafe conditions in existence at the time the tenant took possession of the premises. 216 Kan. at 488.
“Traditionally the law in this country has placed upon the lessee as the person in possession of the land the burden of maintaining the premises in a reasonably safe condition to protect persons who come upon the land. It is the tenant as possessor who, at least initially, has the burden of maintaining the premises in good repair. [Citations omitted.] The relationship of landlord and tenant is not in itself sufficient to make the landlord liable for the tortious acts of the tenant. [Citations omitted.] When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the responsibilities of one in possession, both to those who enter onto the land and to those outside of its boundaries. Professor William L. Prosser in his Law of Torts, 4th Ed. § 63, points out that in the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. There is therefore, as a general rule, no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease.” 216 Kan. at 488.
The Borders court then identified six exceptions to the rule of no liability for landlords: (1) undisclosed dangerous conditions known to lessor and unknown to the lessee; (2) conditions dangerous to persons outside of the premises; (3) premises leased for admission of the public; (4) parts of land retained in lessor's control which lessee is entitled to use; (5) where lessor contracts to repair; and (6) negligence by lessor in making repairs. 216 Kan. at 488–92. The Jensens argue the County is liable under the second exception.
Initially, we find the district court correctly applied Borders in this case. In Kansas, no liability rests upon a landlord, either to a tenant or to others entering the property, for defective conditions existing at the time of the lease. 216 Kan. at 488. It is undisputed in this case that the County is lessor/landlord and First Industrial is lessee/tenant. First Industrial acquired an estate in the land, and became for the time being the owner and occupier, subject to all of the responsibilities of one in possession, both to those who enter onto the land and to those outside of its boundaries. Absent an agreement to the contrary, the County surrendered both possession and control of the land to First Industrial, retaining only a reversionary interest and had no right even to enter without the permission of First Industrial,
The facts in Borders present a similar scenario to the present case. In Borders, the ice causing the fall had formed because the residence had no gutters to properly drain water from the roof, a condition known by both the landlord and the tenant. The court held the landlord owed no duty for injuries caused by unsafe conditions on the leased premises. 216 Kan. at 494. Even if we accept the Jensens' argument concerning the defectiveness of the detention basin, this condition was known by both the owner and the lessee. Consequently, under Borders, the County as owner is not liable for damages resulting from the defects in the detention basin.
However, the Jensens argue we should apply the second expressly stated exception to the Borders doctrine. In discussing this second exception, the Borders court relied on Restatement (Second) Torts § 379 (1965), which provides:
“A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession,”
The Borders court explained that the theory behind this exception provides liability under circumstances where a nuisance dangerous to persons outside the leased premises (in the present case the adjoining property) existed on the premises at the time of the lease and the lessor should not be permitted to escape liability by leasing the premises to another. 216 Kan. at 489. The Borders court recognized that the liability of the landlord for structural defects on leased property which causes injuries to persons outside of the premises was the basis of a judgment against the landlord in Mitchell v. Foran, 143 Kan. 191, 53 P.2d 490 (1936). Mitchell involved an awning hook that was fastened to the leased building and projected onto the public sidewalk and caused injury to a nine-year-old pedestrian.
The Jensens state the County required a particularly designed detention basin as part of its final development plan with TranSystems and the detention basin could only be modified according to the public works department. The Jensens state the County also had notice that the design of the basin underestimated the runoff.
The problem with the Jensens' § 379 argument is that no dangerous activity or nuisance occurred at the time of First Industrial's lease with the County. The County applies a common-ordinary-words analysis to § 379 to argue the Jensens cited no evidence that in May 2007 when the ground lease was executed, the leasehold was not safe. A lessee's plan for future leasehold improvement is not an existing improvement. Construction of the detention basin, whether designed by TranSystems or the County, occurred after execution of the lease. The Jensens are asking us to find that the design of the detention basin was a dangerous condition on the premises at the time of the execution of the lease. We are not convinced this is a proper application of § 379.
The County argues the Jensens concede that no actual dangerous condition existed at the time of the lease, but only a “dangerous nuisance was brewing.” The Jensens claim the following questions of fact still remain and demonstrate why a nuisance was brewing: (1) Was the design negligent? (2) Did the County participate in the design? (3) Did the County have reason to know there was an unreasonable risk to those outside the land?
Based on Borders and § 379, these questions are not material. See Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.). Consequently, the district court did not err in deciding that Borders required summary judgment in favor of the County.
The Jensens would also have us apply Restatement (Second) Torts § 379A (1965) to find the County liable:
“A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
“(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
“(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.”
The Jensens argue the County obviously consented to the construction of the retention basin. They state the County also knew of the risk to their property because the runoff numbers were incorrect and an “underestimation of detention storage volume” would result. The Jensens contend that although the Kansas courts have not adopted Restatement (Second) Torts § 379A, this is the case which should cause us to do so. The County responds that the Jensens cannot establish the second prong of the § 379A test. Again, the County states the dangerous condition was not in existence at the time of the County's lease with First Industrial. Drainage was naturally occurring over the land. The County argues it is an unsubstantiated overstatement to suggest the proposed stormwater detention was an unreasonably risky undertaking.
The Jensens cite Aldrich Enterprises, Inc. v. United States, 938 F.2d 1134 (Colo.1991), for authority applying § 379A. The Aldrich court found Colorado decisions endorsed § 379A of the Restatement (Second) of Torts, but denied application of § 379A because the landowners failed to present sufficient evidence the government knew or had reason to know that operating a failed dam unavoidably involved an unreasonable risk of flooding. 938 F.2d at 1142–43.
The Jensens also contend that under a different scenario in White v. Junghans Agency, Inc., No. 105, 242, 2012 WL 603266 (Kan.App.2012) (unpublished opinion), the court demonstrated the need to have a trial and not decide the negligence claim on summary judgment. White involved liability between a landlord and a tenant-a situation clearly distinguishable from the present facts. We note, the Jensens have failed to include a copy of White in their appendix as required for all unpublished opinions pursuant to Supreme Court Rule 7.04(g)(2)(C) (2014 Kan. Ct. R. Annot. 62).
The Jensens state the County knew before entering the lease there was a risk of “underestimation of detention storage volume.” This was known by May 10, 2007. The ground lease was dated May 30, 2007. Consequently, the Jensens argue the County knew or had reason to know the conditions that would harm the Jensens' property and perpetuated an unsafe condition. While the Jensens argue the County's culpable knowledge is clear, at a minimum they argue it presents unresolved issues of fact as to the basis of liability under the Restatement (Second) Torts § 379 or § 379A. The Jensens' argue their hydrologist expert stated that the predevelopment numbers were inflated so that the post-development numbers could be shown as if they properly attenuated the runoff under the controlling ordinances.
No Kansas Supreme Court case has adopted § 379A. The Restatement does not have the force of a statute, which is a legislative determination controlling future acts, but is an attempt to state existing common-law principles that have evolved over the years from prior cases. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 674–75, 792 P.2d 993 (1990). Kansas case law, however, has not expressly adopted the Restatement's position, nor have the Jensens' pointed us to any other relevant authority. We are not willing to extend § 379A of the Restatement (Second) of Torts to the facts of this case. As the district court indicated, the leasehold improvement, including the detention basin, were designed by TranSystems pursuant to the development agreement.
Analysis of U.S.A.2013 Supp. 75–6104(m)
As is often stated, under the KTCA, liability is the rule and immunity the exception. See K.S.A.2013 Supp. 75–6103(a) ; K.S.A.2013 Supp. 75–6104. Further, it is the obligation of the governmental entity to prove it is entitled to application of any of the exceptions in K.S.A. 75–6104. Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993).
The Jensens argue K.S.A.2013 Supp. 75–6104(m) provides an additional basis for the County's duty owed to the Jensens. K.S.A.2013 Supp. 75–6014(m) provides that a government entity or an employee acting within the scope of employment shall not be liable for damages resulting from “the plan or design for the construction of or an improvement to public property ... if the plan or design is approved in advance ... and if the plan or design was prepared in conformity with the generally recognized and prevailing standards....” They argue that under K.S.A.2013 Supp. 75–6014(m), the County failed to meet prevailing standards and is liable because the duty of the government is to make certain the property is safe. The Jensens argue that even if the detention basin was not public property, the plan or design was public property before the County leased it. The Jensens again cite County regulations defining all drainage retention facilities as public facilities or public improvements.
It is uncontroverted that pursuant to the ground lease, First Industrial was to “construct, own, maintain, utilize, operate, lease and/or occupy a warehouse, distribution, and/or light industrial (including, without limitation, light manufacturing and assembly) facility with office space (the ‘Improvements' and, together with the Land, the ‘Premises')”. The ground lease also required First Industrial: “Prior to commencement of construction of any Improvements, Tenant shall, with reasonable diligence, seek all necessary and appropriate permits, and address all applicable regulatory ordinances, building codes and environmental aspects of such construction.”
With regard to those ordinances and codes, the district court found the only thing the County did in this case was to “enforce its own rules, regulations, and codes.” This exception to municipal tort liability is found in K.S.A.2013 Supp. 75–6104(c), which provides that a government entity is not liable for damages resulting from “enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, rule and regulation, ordinance or resolution.” See also K.S.A.2013 Supp. 75–6104(k) (immunity for the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or regulation or contains a hazard to public health or safety). There is ample evidence in this case how the County staff, acting in their official capacities, reviewed TranSystems' development plan submittals for the leasehold improvements, including plans for on-site stormwater detention, and made suggestions regarding those plans, K.S.A.2013 Supp. 75–6104(c) protects the County in this very situation. See Collins v. Heavener, 245 Kan. 623, 783 P.2d 883 (1989) (An investigation was conducted which indicated a permit should not be issued under the county regulation. Although the Board was negligent in issuing the permit, its actions were within the scope of the regulation.). The County does not “design” a plan simply because it makes adjustments or requirements for a construction project to meet the County's codes and regulations. Otherwise, the County would be liable for every alteration it makes—a result not intended under governmental immunity exceptions to the tort claims act.
Analysis of the Inverse Condemnation Issue
Next, the Jensens argue the district court erred in finding the County was not liable for inverse condemnation and its claim rests on a per se taking.
Inverse condemnation proceedings are initiated by the party having a property interest and are available when private property has been taken for public use without the initiation of formal condemnation proceedings by the government. Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 559, 215 P.3d 561 (2009). To establish a claim for inverse condemnation, a party must establish an interest in the real property and a taking. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). The determination of whether there was a compensable taking is a question of law. We review questions of law using an unlimited standard. Eberth v. Carlson, 266 Kan. 726, 731, 971 P.2d 1182 (1999).
Here, the district court concluded:
“Because the property was leased for a private or commercial use, the court finds it was used for a private commercial use and thus was not a public use. Therefore, there is no inverse condemnation and the County is entitled to summary judgment on that basis. K.S.A. 26–513 ; Kirkpatrick v. City of Olathe, Kansas, 289 Kan. 554, 215 P.3d 561 (2009).”
The Jensens do not address Kirkpatrick in their appellate brief. The extent of their argument on the public nature of the taking in this case is only to argue that the County's zoning and subdivision regulations define all drainage facilities to be public facilities and improvement necessary to provide drainage to be a public improvement. In their reply brief, the Jensens' argue under Kirkpatrick, the inevitable result of the required design of the detention basin was to “take” their property.
The County responds that the above improvements regulated by the County's zoning and subdivision regulations would be for those improvements accepted or constructed by the municipality to be public improvements. In its pleadings below, the County argued these definitions obviously apply “to facilities that are designated for public use by the public body or dedicated to public use by the developer and not to private facilities.”
In Kirkpatrick, 289 Kan. at 559, a homeowner's basement was allegedly damaged due to the diversion of water when the City of Olathe constructed a roundabout at the road intersection, excavating the land and changing the grade. The Kansas Supreme Court observed that K.S.A. 26–513(a), which defines the actions for which compensation is required under Kansas eminent domain law, states: “ ‘Private property shall not be taken or damaged for public use without just compensation.’ “ This language has remained unchanged since the Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26–501 et seq. , was enacted in 1963. See L.1963, ch. 234, sec. 13. “Under the plain language of the statute, compensation is required for both physical takings of property interests and ‘damage’ to private property that results from a public improvement project.” 289 Kan. at 559.
The remainder of K.S.A. 26–513 contemplates that damage to private property resulting from a public improvement project may require compensation under Kansas law. Most notably, K.S.A. 26–513(d) provides a nonexclusive list of factors that should be taken into consideration when determining the compensation that is due to a landowner. The Kirkpatrick court observed that among other items listed, the statute includes: “Damage to property abutting on a right-of-way due to change of grade”; “[l]oss of or damage to growing crops”; and “[c]ost of new drains or loss of drains and the cost of replacing them with drains of like quality.” K.S.A. 26–513(d)(10), (12), and (14). In these instances, the requirement for compensation arises not from a physical taking of the land but rather from damage to the property that “affects the value of the property remaining” after the government action. See K.S.A. 26–513(d)(14) ; 289 Kan. at 560. Kirkpatrick clarified that in order for damage to real estate to be compensable under the EDPA, that “damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit .” 289 Kan. at 569.
The Kirkpatrick court concluded that substantial evidence supported the district court's finding that the damage to the homeowner's property was the direct result of the City's actions in constructing a roundabout adjacent to the property and the City was aware of the alteration of the groundwater flow, but took no action to remedy the change. Reversing the Court of Appeals' decision, the Kirkpatrick court held that because the substantial damage to the homeowner's property was the inevitable result of the change in groundwater level, the damage was compensable in an inverse condemnation action. 289 Kan. at 570–71.
On appeal, the Jensens argue it would be inconsistent to find the County was enforcing its own regulations and was immune from liability under the KTCA, K.S.A.2013 Supp. 75–6104(c), while also denying an inverse condemnation claim for a per se regulatory taking, when the questioned regulation produced a physical intrusion onto the Jensen's property under Garrett v. City of Topeka, 259 Kan. 896, 916 P.2d 21 (1996).
The Jensens do not rely on Garrett as a factually similar case. Instead, they simply rely on Garrett for the general theory concerning regulatory takings by the government's police-power principle: “This category arises when a regulation produces a physical intrusion, occupation, interference, or displacement onto or into a property owner's space sufficient to constitute a per se taking.” 259 Kan. at 907. Garrett involved the application of various resolutions of the City of Topeka assessing $144,733.51 for street construction and $33,948.93 for sewer construction to Garrett for a street improvement project for an interior commercial route which was not completed. These actions were ultimately determined to be an economic taking subject to the balancing test to determine if the regulation went too far, which a majority of the court held that it did. 259 Kan. at 917.
The Jensens state the County dictated construction of a specific detention basin and only the County could change the approved basin. Consequently, the Jensens argue the County's actions produced a physical intrusion into their property and a per se taking. They request a reversal of the summary judgment ruling and a remand for trial to determine damages.
There are two types of regulations that the United States Supreme Court considers per se takings. “ ‘First, where government requires an owner to suffer a permanent physical invasion of [his or her] property-however minor-it must provide just compensation.’ “ Frick v. City of Salina, 290 Kan. 869, 885, 235 P.3d 1211 (2010) (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 161 L.Ed.2d 876 [2005] ). The second rule applies to “ ‘regulations that completely deprive an owner of “all economically beneficial us[e]” of his or her property.’ “ Frick, 290 Kan. at 885 (quoting Lingle, 544 U.S. at 538 ). The fact that the Jensens' property may still have an approximate value of $1.5 million negates the possibility they have been deprived of all economically beneficial use of their property.
In Frick, the plaintiffs filed an inverse condemnation action alleging that after completion of an overpass project, their property was inundated by storm water drainage, water retention, water flowage, water drainage, impounding of water, and release of water. Additionally, they alleged that the business records of the design and construction company clearly established that the City intended to use the subject property for the purpose of storm water drainage, water retention, water flowage, water drainage, impounding of water, and release of water. The plaintiffs argued that because of these flooding and drainage problems, they would be unable to farm their property or to commercially develop it. The Frick court affirmed the district court's grant of summary judgment in favor of the City, but the summary judgment decision was correct because the City presented evidence that the overpass project improved drainage and the Fricks failed to cite any portion of the record that supported their viewpoint. 290 Kan. at 904–05 ; Supreme Court Rule 141 (2014 Kan. Ct. R. Annot. 257). The Frick case was also another attempt to give teeth to Supreme Court Rule 141 and the failure to properly contradict facts alleged in summary judgment.
The County does not contest that APWA 5600 requires stormwater control. The County responds that the Jensens' argument that the County's failure to comply with APWA caused the erosion and flooding of the property negates a “taking” claim because the regulation did not authorize the invasion or require the landowner to suffer the damages, but it was a violation of the regulation that caused any damages. See Niagara Mohawk Power Corp. v. United States, 98 Fed. Cl. 313, 317 (2011) ; Dureiko v. United States, 209 F.3d 1345, 1359–60 (Fed.Cir.2000). The County cites Neis v. Board of Douglas County Comm'rs, No. 106,513, 2013 WL 31034 (Kan.App.2013) (unpublished opinion), where the Kansas Court of Appeals addressed a “takings” claim within the context of a conditional use permit for a rock quarry:
“Neis does not assert that the [Conditional Use Permit] CUP authorizes any agency or instrumentality of Douglas County to occupy his property. He makes the unsubstantiated claim that the Board's issuance of the CUP will result in physical invasion of his property because Hamm will expand its quarry to the 150–foot setback boundary and adjustments to his farming practices will be required in order to protect individuals and property.
“The common theme to the three cases Neis relies on—Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946) ; and Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), is that in each case, the governing authority or agency required the owners to suffer some kind of permanent occupation of their property.
“In our case, there has not been and will not be any occupation of Neis' property. The Board has not allowed Douglas County or anyone else to have access to Neis' property. The CUP does not permit Hamm to enter Neis' property or to project rocks onto Neis' property. Should such an event occur in the future, Hamm would suffer liability for any damage which it might cause, but that possibility may not be the basis to substantiate a physical invasion sufficient to justify a takings claim.
“The requirement of a physical taking is stated succinctly in Yee v. Escondido, 503 U.S. 519, 527, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) : The government effects a physical taking only when it requires the landowner to submit to the physical occupation of his land.” ‘This element of required acquiescence is at the heart of the concept of occupation.’ “
“In summary, the CUP does not require Neis to submit to the physical occupation of his land—Neis failed to introduce any competent evidence to show that any physical occupation will occur, either authorized or in any other manner. Neis' takings claim on the basis of physical occupation has no merit and was correctly rejected by the district court.” 2013 WL 310346 at *20.
The district court did not err in finding the property leased to First Industrial was for private or commercial use. Kirkpatrick clarified that in order for damage to real estate to be compensable that “damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit .” 289 Kan. at 569. Further, we are not persuaded the Jensens have a viable per se regulatory “taking” either. The detention basin in this case was not designed to “take” the Jensens' property for any public benefit. The establishment of the detention basin did not require the Jensens to submit to a physical occupation of their property. See Yee v. Escondido, 503 U.S. at 527. We agree with the County that had the Jensens owned their property in early 2007 before the approval and granting of development plans for First Industrial's leasehold, the Jensens would have been in the exact situation as occurred in Neis. The Neis court stated:
“The CUP does not permit Hamm to enter Neis' property or to project rocks onto Neis' property. Should such an event occur in the future, Hamm would suffer liability for any damage which it might cause, but that possibility may not be the basis to substantiate a physical invasion sufficient to justify a takings claim.” 2013 WL 310346 at *20.
No County regulation authorized First Industrial to lawfully discharge increased stormwater onto the Jensens' property and if that has happened, First Industrial would suffer liability for any damage again based on the Borders landlord-tenant holding decision above. 216 Kan. at 488 (no liability rests upon a landlord for defective conditions existing at the time of the lease.); Neis, 2013 WL 310346 at *20.
With regard to the berm claim, the district court denied summary judgment because questions of fact remained concerning the statute of limitations (basically when the Jensens were aware the berm had been shortened). The Jensens' notice of claim stated: “After our purchase, Johnson County failed to complete the berm and retention pond in accordance with the requirements specified and required in connection with the construction of the distribution center.”
Again, the County has not cross-appealed the district court's ruling. See K.S.A.2013 Supp. 60–2103(h) (appellee must file a cross-appeal for “a review of rulings and decisions of which such appellee complains”). The berm claim, therefore, remains.
Affirmed in part and remanded for further proceedings consistent with this opinion.