City of Eskridge v. McGivern ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,117
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF ESKRIDGE, KANSAS,
Appellee,
v.
JOHN F. MCGIVERN II, Trustee of the
JOHN F. MCGIVERN, II TRUST, dated February 18, 1998,
Appellant.
MEMORANDUM OPINION
Appeal from Wabaunsee District Court; JEFFREY R. ELDER, judge. Opinion filed July 1, 2022.
Affirmed.
Kevin J. Grauberger, of Riordan, Fincher & Mayo, P.A., of Topeka, for appellant.
Todd A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: The City of Eskridge (City) sued John F. McGivern II, Trustee of
the John F. McGivern II Trust, dated February 18, 1998 (McGivern), alleging that
McGivern committed trespass by building a sidewalk and a dock on City property
without authority to do so. Both parties filed competing motions for summary judgment
and the district court granted summary judgment for the City. McGivern appeals. After a
review of the record, for the reasons stated below we affirm the decision of the district
court.
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FACTUAL AND PROCEDURAL BACKGROUND
McGivern owns a house and land that adjoin the shoreline of Lake Wabaunsee.
The City owns the lake and lakeshore. Since the 1950s, the City has allowed lot owners
to construct docks and other structures on City property if they do so in compliance with
City ordinances. Eskridge City Code (city code) provides that "[n]o structure shall be
built, installed or constructed on Lake Wabaunsee Park property owned by the city
without first complying with the following procedure." Such procedure requires, among
other steps, that: (1) the landowner file a permit application and fee, (2) the plan be
reviewed by a public officer who makes written findings and recommendations to the
governing body, (3) the governing body approve, deny, or grant the application subject to
conditions, (4) the city issue a construction permit upon approval of the application, (5)
upon completion of construction, the landowner must notify the public officer and
request a final inspection, and (6) the public officer either approve the structure or, if the
structure is noncompliant with the permit, order the structure reconstructed or removed.
In April 2017, McGivern submitted a form Lake Wabaunsee Structure Permit
Application seeking to construct a sidewalk on the City's property. McGivern received an
approval letter from the Corps of Engineers, dated May 8, 2017, regarding the sidewalk.
In May 2017, McGivern filed a second permit application seeking to construct a dock on
the lake.
On May 15, 2017, McGivern built the sidewalk and dock. McGivern admits the
dock and sidewalk were constructed without a permit or permits being approved by the
City. He later submitted "'As Built'" structure permit applications for the dock and
sidewalk, which were denied by the City Council on April 23, 2018.
On October 2, 2018, the City filed a petition alleging McGivern had committed
trespass, seeking ejectment, and a declaratory judgment or mandatory injunction. The
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parties filed competing motions for summary judgment. The facts as laid out above
reflect the uncontroverted facts advanced by the parties in their respective motions.
The district court held a hearing on the parties' motions for summary judgment.
The City argued that a trespass had occurred because McGivern built structures on the
City's land and McGivern did not have any lawful authority to do so, because the only
way to gain lawful permission would be to follow the procedure in the city code. The
City asked the district court to cure the trespass by ordering removal of the structures.
McGivern admitted that the structures were built without approval or permits. But
McGivern asserted that because the city code defines unapproved structures and provides
a procedure for the City to have the unapproved structures removed, the City should be
precluded from bringing a trespass action. McGivern claimed the issue could be
summarized to whether he did what the City has allowed other landowners to do, and that
his structures were identical or substantially similar to what others had built. McGivern
argued that, because his structures conformed to the types of structures generally allowed,
he had a license to build the structures.
During the summary judgment hearing, McGivern also maintained he acted in
good faith based on information he received from the city clerk. But he acknowledged
that even if he received permission from the city clerk, the city clerk did not have
authority to bind the City and grant approval under the process. Before he could continue
this argument, the district court questioned whether McGivern had stated facts about the
city clerk and his alleged good faith, and whether McGivern had supported his assertions
with an affidavit or deposition in his motion for summary judgment. McGivern admitted
he did not and stated he did not think the issue was controlling for a summary judgment
motion.
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McGivern then argued that if a trespass had occurred, further proceedings were
necessary to determine the proper remedy because removal is not the only remedy
available to the court.
The district court granted summary judgment for the City. The district court found
no material facts were in dispute, adopted the City's arguments regarding trespass,
rejected McGivern's argument on good faith, and ordered the structures removed.
McGivern timely appealed.
ANALYSIS
On appeal, McGivern argues that the district court erred in granting summary
judgment to the City on its common law trespass claim. A trespass occurs when one
enters the premises of another "without any right, lawful authority, or express or implied
invitation or license." Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 22,
378 P.3d 1090 (2016). "Trespass requires an 'intention to enter upon the particular piece
of land in question, irrespective of whether the actor knows or should know that he is not
entitled to enter.'" 305 Kan. at 22. The district court found that based on the undisputed
facts, the City proved its trespass claim as a matter of law because McGivern built
structures on city property and had no right, authority, invitation, or license to do so.
McGivern first claims that the district court erred in finding the City could
advance a trespass claim because he contends the City must utilize the provisions of the
city code in order to enforce the city code. He then argues that the district court erred in
finding he did not have a common law license, or some other form of authority, to build
his structures. McGivern then maintains the district court erred in its decision to require
removal of the structures.
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Before addressing the merits of McGivern's appeal, it is important to understand
the procedural posture of this case. The district court granted summary judgment for the
City, finding no disputed facts and that the undisputed facts established McGivern had
committed trespass as a matter of law. But in his appellate briefing, McGivern's recitation
of the facts in this case—and some of the facts he relies upon in his analysis—do not
come from the facts he or the City supported in their motions for summary judgment.
Standard of Review
Appellate courts apply de novo review to a district court's decision to award
summary judgment, and:
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.'" Fairfax Portfolio v. Carojoto, 312 Kan. 92, 94-95, 472 P.3d 53 (2020).
Summary Judgment Procedure
Fatal to McGivern's arguments is that the summary judgment procedure limits
what facts this court may rely on in issuing its decision. The procedure, encapsulated in
Supreme Court Rule 141(a)(1) (2022 Kan. S. Ct. R. at 223), requires the moving party to
state, "concisely, in separately numbered paragraphs, the uncontroverted contentions of
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fact on which the movant relies" and provide a reference to where in the record the fact
appears. Frick v. City of Salina, 290 Kan. 869, 878-79, 235 P.3d 1211 (2010). The
opposing party must then state whether the movant's fact is uncontroverted or
controverted. Rule 141(b)(1). If controverted, the opposing party must provide a precise
reference to the evidence controverting the fact. Supreme Court Rule 141(b)(1). The
Kansas Supreme Court has "repeatedly emphasized that 'Rule 141 is not just fluff—it
means what it says and serves a necessary purpose.'" Frick, 290 Kan. at 879. Thus, the
facts before the district court, and the only facts relevant to this court's review, are those
that were advanced by the parties in their motions for summary judgment and agreed to
be uncontroverted in their responses.
The District Court Did Not Err in Granting Summary Judgment on the Trespass Claim.
McGivern first challenges the district court's decision that a trespass claim was the
proper action at all. McGivern argues that because the City chose not to enforce the city
code provisions through the administrative procedures set out in the code for "'offending
structures,'" it cannot then rely on the same city code to prove its trespass claim.
McGivern asserts that the City "cannot have it both ways in the same cause of action,"
pursing a common law trespass action to enforce the provisions of the city code based
solely on violations of the city code.
The City counters that because it had to prove that the structures were on its land
without authority, it was not improper for it to reference the city code, because the code
establishes how a landowner could gain authority to place structures on City land. The
City asserted that McGivern had no right, authority, invitation, or license to build the
structures. But instead of merely declaring he had no right, authority, invitation, or
license to build the structures, the City went a step further and acknowledged that there
was a single way—outlined in the city code—for adjacent landowners to gain authority to
build structures on City land surrounding Lake Wabaunsee. The City then emphasized,
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and McGivern admitted, that he did not follow this procedure. Thus, the city code was
relevant only to the point that it outlined a means for landowners to obtain authority to
build structures on City property. Any reference to the city code is simply ancillary
information supporting the City's claim that McGivern did not have authority to build
structures on its land.
This court agrees. McGivern's argument merely muddies the waters of what is
otherwise a straightforward trespass claim. To prove its trespass claim, it was necessary
for the City to demonstrate that the trespass was done without authority. McGivern did
not dispute that his structures are on the City's land, so the issue before the district court
was whether the structures were on the City's land with no right, authority, invitation, or
license. And even assuming the city code provided a procedure for dealing with
structures built without permits, McGivern simply points to no authority that would
require the City to proceed under that specific procedure as opposed to filing a trespass
claim. The failure to support a point with pertinent authority or failure to show why a
point is sound despite a lack of supporting authority or in the face of contrary authority is
akin to failing to brief the issue. In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416
P.3d 999 (2018). As a result, the district court did not err in allowing the City to proceed
with its trespass claim.
McGivern then asserts that the district court erred in granting summary judgment
to the City because "there were material questions of facts as to whether he had a license
to build" the structures. The City counters that McGivern did not obtain a license or other
authority to build his structures because he did not follow the procedure outlined in the
city code—which, again, is the only way to obtain authority to build structures on its
property.
"[A] licensee is one who enters or remains on the premises of another by virtue of
either the express or implied consent of the possessor of the premises, and, therefore, is
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not a trespasser thereon." Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 573, 694 P.2d
433 (1985).
McGivern first suggests he had a "common law license" to construct the
structures. In support, McGivern maintains that the city code and the "ongoing,
permissive arrangement for the last sixty years for lake lot owners to construct docks and
other man-made structures . . . is enough to demonstrate the existence of a license . . . ."
But this argument is unpersuasive. McGivern simply asserts that he gained a license
based on the City allowing other landowners to construct structures over the years. But
McGivern acknowledges in his summary judgment motion that "[h]omeowners that
surround Lake Wabaunsee have a 'limited right to build structures and docks on City
property on the lake shore' if the homeowners follow the City Code in so doing."
(Emphases added.) Thus, McGivern admits in his summary judgment motion that the
other landowners' right to build was limited by compliance with the city code. McGivern
tries to avoid this by again claiming that this court must disregard the existence of the city
code and somehow impute a "common law license," based solely on the existence of
other structures on the lake with no regard to how those structures got there. But this
argument lacks a logical or legal basis—especially considering that in the same paragraph
he asks this court to consider the language of the city code as supporting his "common
law license" argument. As discussed above, there is no reason not to consider the city
code in addressing the City's trespass claim.
Additionally, the authority McGivern cites does not advance his position. He first
cites State ex rel. Fatzer v. Ancient Order of United Workmen, 178 Kan. 69, 283 P.2d 461(1955), which involved a dispute between the State and a corporation over who owned a
building built on State land under a contract between the State and corporation to
establish a treatment center for tubercular patients. McGivern asserts that the case
suggests the "language of a writing may grant permissive use in the nature of a
license . . . ." But the court in Fatzer discussed that the corporation gained a license to use
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the land through the contract between the State and the corporation. 178 Kan. at 76.
Here, McGivern concedes that he did not follow the procedure in the city code. Thus, it is
unclear how he could have gained a license through the language of the city code without
following the provisions of that same code.
McGivern also relies on Smyre v. Kiowa County, 89 Kan. 664, 132 P. 209 (1913),
which dealt with a dispute over a stairwell in a building. The building was originally
built, owned, and operated by two parties. The original two parties then passed their
portion of the building to Smyre and the county. The stairway was technically owned by
Smyre but was the only way to access the county's portion of the building. Smyre
claimed that the county owed him rent to use the stairwell. The court disagreed, finding
an irrevocable license had been created based on the construction of the building by the
former owners under a common plan by which there was no separate way to access what
is now the county's portion of the building, and the common use of the stairway by Smyre
and the county. 89 Kan. at 669. The court relied on the rule that when an owner of land
permits another repeatedly to do acts on the land, a license can be implied from the
landowner's failure to object. 89 Kan. at 669.
Smyre is factually distinguishable, as McGivern concedes in his reply brief, and is
otherwise unhelpful to his cause. McGivern quotes Smyre for its assertion that "'use [of
common area] . . . for many years created a parol license.'" But this case does not help his
position. The City's land is not a common area and the City clearly objected to
McGivern's actions by filing the instant trespass action. Thus, Smyre is unsupportive to
McGivern's position. Further, neither of these cases supports his assertion that actions
between the City and other landowners could somehow imply that McGivern had a
license with the City.
McGivern has not shown that he acquired a license, or any other type of authority,
to support the construction of his structures on City property and defeat the City's
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trespass claim. Although McGivern's brief goes in depth to discuss the type of license—
irrevocable or revocable—he received, and he quibbles over whether the city code
provides a license or a lease, this court need not address these arguments in detail. In
sum, McGivern contends he acted in good faith by relying upon information provided to
him by the city clerk and the Corps of Engineers.
McGivern's citation to "information" provided by the city clerk is not properly
before the court, because it was not alleged as a fact in his summary judgment motion or
stated in response to the City's summary judgment motion. In fact, when he mentioned
this argument at the summary judgment hearing, the district court pointed out that
McGivern had not come forward in his response to the City's motion with any evidence
to show what, if anything, the city clerk told him. McGivern then explicitly stated that he
did not believe the issue was controlling for summary judgment purposes. As a result, the
district court could not have erred in granting summary judgment because of this theory
when McGivern explicitly stated he was not raising the theory at the time of summary
judgment. It was incumbent upon McGivern to come forward with evidence to establish a
dispute as to a material fact, and he did not. Fairfax Portfolio, 312 Kan. at 94-95.
Similarly, the only fact outlined in the summary judgment briefs discussing a letter
from the Corps of Engineers simply mentioned that McGivern received such a letter. But
McGivern never explained how the Corps of Engineers' approval provided him any
authority to build on City property. Such a requirement is not a step in the city code's
process, nor does it establish that he gained some license or other authority to build on
the City's property.
In conclusion, the district court did not err in granting summary judgment for the
City. The undisputed facts established that McGivern built the sidewalk and dock on City
property without any right, lawful authority, or express or implied invitation, or license to
do so.
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The District Court Did Not Err in Ordering the Structures Be Removed.
McGivern asserts that even if a trespass did occur, the district court erred in
ordering removal of the structures because it did not apply the proper legal test to
determine the appropriate remedy. He further contends material questions of fact remain
unresolved concerning the damages that should be awarded.
The district court explicitly found that the structures were built "without right or
approval" and it rejected McGivern's argument that he was entitled to maintain the
structures based on his alleged good faith actions. The district court then ordered
McGivern to remove the structures. Thus, as agreed by both parties, the district court—
without explicitly stating so—entered a mandatory injunction as relief for the trespass.
See Mid-Am. Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990)
("Mandatory injunctions require performance of an act, while preventive, or prohibitory,
injunctions require a party to refrain from doing an act.").
A mandatory injunction is an extraordinary remedy and a party seeking a
mandatory injunction must be clearly entitled to that form of relief. 246 Kan. at 242. The
granting of a mandatory injunction is governed by the same rules as the granting of
preventative injunctions. 246 Kan. at 242. This court has generally required a movant to
prove four elements, known as the balancing of equities test, to obtain injunctive relief:
"'(1) [A] substantial likelihood that the movant will eventually prevail on the
merits; (2) a showing that the movant will suffer irreparable injury unless the injunction
issues; (3) proof that the threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing parties; and (4) a showing that the
injunction, if issued, would not be adverse to the public interest.'" Friess v. Quest
Cherokee, 42 Kan. App. 2d 60, 64, 209 P.3d 722 (2009), as corrected (July 23, 2009).
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But this balancing of equities test "'is reserved for the innocent defendant who proceeds
without knowledge or warning that he is encroaching upon another's property rights.'" 42
Kan. App. 2d at 66 (quoting Wietharn, 246 Kan. at 247). Kansas courts have found an
exception to the balancing of equities test when the party seeking an injunction has
"'clearly defined rights . . . that are recognized and protected by law' and that party
otherwise satisfies the prerequisites for injunctive relief." Friess, 42 Kan. App. 2d at 64
(quoting Wietharn, 246 Kan. at 242). "Where there has been shown an ongoing or
continuing violation of a landowner's rights by the construction of trespassing structures,
the general rule is that legal remedies are inadequate and that injunctive relief is
appropriate." Friess, 42 Kan. App. 2d at 65.
McGivern argues that because he maintained throughout the proceedings that he
believed he was authorized to build the structures—based on the information he claims
he was provided by the city clerk and the Corps of Engineers approval letter—the
"weighing the equities" test should have been applied before ordering removal of the
sidewalk and dock. McGivern also asserts that removal constitutes an inequitable result
as he can rebuild the structures after submitting another application.
The City responds that although the district court did not explicitly state that the
Wietharn exception applied, the district court made the correct decision under that
exception. The City asks this court to find that the Wietharn exception applied and that as
a matter of law it was entitled to the injunction. In the alternative, the City asserts that the
evidence presented establishes that it would have met the balancing of equities test if it
applies instead.
McGivern maintains that the summary judgment standard of review also applies to
this issue. The City does not dispute McGivern's assertion. As laid out above, appellate
courts apply de novo review to a district court's decision to award summary judgment.
Similarly, when the appellant, like McGivern, asserts that the legal requirements for
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injunctive relief have not been met, the question is an issue of law subject to de novo
review. Friess, 42 Kan. App. 2d at 63-64. Otherwise, the decision to grant a mandatory
injunction rests within the discretion of the trial court and this court will not overturn the
decision absent a "manifest abuse of that discretion." 42 Kan. App. 2d at 63.
McGivern's argument fails. As a threshold matter, as discussed above, McGivern
did not properly establish what information, if any, he received from the city clerk or how
the Corps of Engineers' letter somehow gave him authority for the trespass. The City
clearly sought a mandatory injunction and outlined the standards for the same in its
summary judgment motion. Pursuant to the summary judgment rules, it was necessary
for McGivern to come forward with evidence to establish a dispute as to his alleged good
faith actions. Without such evidence, he did not establish an issue of material fact which
might have precluded summary judgment. Because evidence of his actions was not
provided, the district court explicitly rejected McGivern's argument that he was entitled
to maintain the structures based on his alleged good faith actions. Thus, there was no
material dispute of fact preventing the district court from issuing a mandatory injunction
so long as the City proved it was entitled to the injunction as a matter of law.
Likewise, by finding McGivern's good faith argument failed, McGivern's
argument that the district court should have applied the balancing of equities test also
fails. The balancing of equities test "'is reserved for the innocent defendant who proceeds
without knowledge or warning that he is encroaching upon another's property rights.'" 42
Kan. App. 2d at 66 (quoting Wietharn, 246 Kan. at 247). McGivern admitted that the City
owns the property and that landowners are allowed to construct structures based on the
ordinances. He also conceded that he did not follow the city code's permit procedure.
Thus, McGivern was not an innocent defendant. He knew he was building on City
property and he had not received the proper permits. "Where there has been shown an
ongoing or continuing violation of a landowner's rights by the construction of trespassing
structures, the general rule is that legal remedies are inadequate and that injunctive relief
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is appropriate." Friess, 42 Kan. App. 2d at 65. Therefore, a mandatory injunction was
appropriate.
Finally, McGivern's assertion that the injunction is inequitable and causes him
undue hardship because he would just have to rebuild the structures after acquiring the
proper permits is unpersuasive. McGivern points to no law or authority that would
prohibit the district court from issuing an injunction despite claimed inequity or hardship.
Further, it is disingenuous for McGivern to acknowledge he did not follow the proper
procedure and now claim that he should nonetheless be allowed to maintain the buildings
because he could have followed the procedure.
In sum, the district court did not err in awarding summary judgment to the City
and entering a mandatory injunction as the remedy.
Affirmed.
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