McQuillen v. City of Ammon , 113 Idaho 719 ( 1987 )

BAKES, Justice.

The City of Ammon granted appellant McQuillen a building permit and a moving permit to move a log structure onto his premises. The city council, sitting as a board of adjustment, later revoked the building permits. McQuillen appealed the board’s decision to district court which affirmed the revocation. No appeal was taken from the district court’s decision. McQuillen then sued respondents herein (the City of Ammon, the Ammon City Council, and Hayse Whiteley) under the Idaho Tort Claims Act. The district court granted summary judgment for respondents. McQuillen appeals. We affirm.

On June 18, 1984, respondent Whiteley, Ammon City Zoning Administrator and Building Inspector, at McQuillen’s request, issued a building permit and a moving permit, permitting McQuillen to move a log structure onto a lot McQuillen had purchased in Ammon, Idaho. The permits respectively designated the square footage of the structure to be 976 and 988 square feet. The building permit stated that McQuillen had to begin construction within sixty days; otherwise, the permit would become null and void.

Shortly thereafter, the Smiths and other Ammon city residents circulated a petition objecting to the placement of McQuillen’s log structure. The Smiths presented the petition to Russell Swensen (Ammon City Mayor), Whiteley, and members of the Ammon City Council. The petition alleged that (1) the log structure did not meet the “general objectives and characteristics of the zone,” and (2) it did not meet the 1000 square foot requirement for a single family dwelling. On July 5, 1984, Swensen gave written notice to McQuillen of the alleged building code violations, and four days later a correction notice was attached to McQuillen’s log structure.

After learning of the petition, Whiteley consulted with Ammon City Attorney Joe Anderson regarding the validity of McQuillen’s building permit and the correction notice issued by Mayor Swensen. In a letter dated July 11, 1984, Anderson advised Whiteley as follows:

“I understand that the building permit was issued for both the moving on of the prebuilt unit and the addition which would be a part of it. RPA zoning requires a structure of 1000 square feet as a minimum. The prebuilt structure is not 1000 square feet, but together the prebuilt and the addition would have in excess of 1000 square feet____ Where the completed unit will have more than 1000 square feet and the permit is for the completed unit consisting of the move-on plus the built on, it is my opinion that the structure would comply with the zoning area requirements of 1000 square feet____ [I]t might also be well to advise the owner that if there is some dissatisfaction with the appearance, upon complaint there could be a nuisance violation unless the structure was put into and maintained in a neat, orderly appearance.”

On July 12, 1984, the Smiths appealed to the Ammon City Council in its capacity as a Board of Adjustment. Four days later Mayor Swensen issued a stop-work order.

On August 2, 1984, the Board of Adjustment hearing was held. Both the Smiths and McQuillen were represented by legal counsel and both submitted exhibits and testimony. Two weeks later, the board revoked the building permit (the moving permit having already been executed).

On September 19, 1984, McQuillen filed a petition seeking district court review of the Board of Adjustment’s actions. He alleged constitutional and statutory violations and that the board’s action was arbitrary, capricious and characterized by an abuse of discretion. McQuillen requested an order reinstating his building permit and requiring the Smiths and the City of Ammon to reimburse him for all out-of-pocket expenses incurred as a result of the decision rendered by the board.

On May 1, 1985, McQuillen filed a written Notice of Tort Claim with the Ammon City Clerk. McQuillen claimed not only that the City of Ammon negligently revoked the building and moving permits, but that Whiteley, acting as agent for the City of Ammon, also negligently issued the permits. McQuillen demanded reimbursement of various out-of-pocket expenses, plus $500,000 for personal damages due to rumors, inuendos and false statements which had allegedly been circulated as a result of the city’s negligence.

On June 6, 1985, the district court issued its decision on appeal, stating that it could reverse the decision of the board only if one of the grounds stated in I.C. § 67-5215(g) existed; none were found to exist. Accordingly, the district court entered its final decree (McQuillen I), affirming the Board of Adjustment’s decision. McQuillen did not appeal the district court’s decision.

On November 6, 1985, the City of Ammon’s insurance carrier denied McQuillen’s tort claim; thirteen days later, McQuillen filed this action (McQuillen II), alleging the city’s negligence and malice in issuing and revoking his permits. On June 5,1986, respondents filed a motion for summary judgment as to all causes of action alleged in McQuillen’s complaint. After a hearing, the district court issued a written memorandum decision granting respondents’ motion for summary judgment. McQuillen now appeals. We affirm.

I

Upon motion for summary judgment, all facts are to be liberally construed in favor of the party opposing the motion, which party is also to be given the benefit of all favorable inferences which might be drawn from the facts. Summary judgment should be granted only when the pleadings, depositions, affidavits and admissions indicate that there is no genuine issue of material fact. I.R.C.P. 56(c); Rice v. Miniver, 112 Idaho 1069, 739 P.2d 368 (1987); Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986). In the instant case, all issues can be decided as matters of law; no genuine issue of material fact remains.

McQuillen has two contentions: first, that the permits were negligently revoked; and second, that the permits were negligently issued. We address each in turn.

Permit revocation was the main issue in McQuillen I. To quote the district judge, “Hence one of the real issues in this case is whether the City of Ammon could legally revoke the permits once issued.” That issue was decided against Mr. McQuillen by the district court, and it has not been appealed. Accordingly, it has now become final, and the doctrine of res judicata applies not only as to all matters decided, but also as to “every matter which might and should have been litigated in the first suit.” Duthie v. Lewiston Gun Club, 104 Idaho 751, 753, 663 P.2d 287, 289 (1983); Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 98, 383 P.2d 612, 615 (1963); Joyce v. Murphy Land & Irr. Co., 35 Idaho 549, 553, 208 P. 241, 242 (1922). See also Angel v. Bullington, 330 U.S. 183, 189, 67 S.Ct. 657, 661 (1947) (“If a litigant chooses not to continue to assert his rights after an intermediate tribunal has decided against him, he has concluded his litigation as effectively as though he had proceeded through the highest tribunal available to him.”); Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4433 (1981). Thus, McQuillen is precluded from further adjudication regarding the revocation of his permits.

II

McQuillen’s other argument is that the permits were negligently issued. The alleged negligence stems from Whiteley’s issuance of the permit when the log structure contained less than 1000 square feet. We begin by noting that McQuillen expressly requested permits. McQuillen acknowledged that he “specifically understood that Hayse Whiteley issued the building permit to him based upon his (McQuillen’s) representation ... regarding an extension which would be built onto the west end of the log structure____” McQuillen’s own statements negate his conclusory allegation that the permits were negligently issued.

Nevertheless, this case can be decided as a matter of law via the notice requirement of the Idaho Tort Claims Act. I.C. § 6-906, as effective during the events at issue, reads as follows:

“6-906. Filing claims against political subdivision or employee — Time.—All claims against a political subdivision arising under the provisions of this act and all claims against an employee of a political subdivision for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.” ¹

The statutory period within which all claims against a political subdivision must be filed begins to run from the occurrence of the wrongful act, even though the full extent of damages may be unknown or unpredictable at that time. Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977). Knowledge of facts which would put a reasonably prudent person on inquiry is the equivalent to knowledge of the wrongful act and will start the running of the 120-day period. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975).

Compliance with the Idaho Tort Claims Act’s notice requirement is a mandatory condition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate. I.C. § 6-908; Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982); Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978); Newlan v. State, supra. The 120-day notice provision of the Act is not itself a statute of limitations; a separate section of the Act provides for the limitation of actions thereunder. I.C. § 6-911; Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981). The notice requirement is in addition to the applicable statute of limitations.

The permits were issued on June 18, 1984, and McQuillen admitted receiving notice of their revocation on September 4, 1984. If the issuance of the permits was indeed negligent, McQuillen had 120 days from June 18, 1984, to file his notice of tort claim. If the revocation of the permits was negligent, he again had 120 days, arguably from September 4,1984, to file his notice of tort claim. Notice was actually filed on May 1, 1985, meeting neither of the deadlines (though, under McQuillen’s theory, we are concerned only with the 120-day period following June 18, 1984). Since compliance with the notice of claim requirement is a mandatory condition precedent to bringing suit, McQuillen’s claim of negligent permit issuance is barred for failure to file timely notice. Cf. Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d 489 (1978) (in suit seeking monetary damages brought by property owner challenging the denial of a conditional use permit, this Court held the action was correctly dismissed because the plaintiff did not present his claims within 120 days after his cause of action arose).

McQuillen asserts tnat the city had notice of his tort claim via the district court pleadings and filings in McQuillen I, which were within the 120-day period. While McQuillen I might arguably have given notice of a negligent revocation claim (as that was the theory in McQuillen I), it certainly would not have given notice of a negligent issuance claim. McQuillen’s negligent issuance contention was first raised on May 1, 1985 — long after the 120-day notice period had expired. Further, in actions against governmental entities, plaintiffs are not exempt from the notice of claim requirements because of substantial actual notice having been given. Independent School Dist. of Boise City v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint School Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978). Calkins v. Fruitland, 97 Idaho 263, 543 P.2d 166 (1975). See also Newlan v. State, supra.

In summary, McQuillen’s negligent issuance claim under the Idaho Tort Claims Act is absolutely barred for failure to timely comply with the 120-day notice requirement. Other issues, including immunity, were raised but need not be addressed. We affirm the district court’s grant of summary judgment.²

We affirm the district court upon the 120-day notice theory as to the negligent issuance claim, and on a res judicata theory as to the negligent revocation claim. We express no opinion on the immunity question. Costs to respondent; no attorney fees on appeal.

SHEPARD, C.J., and HUNTLEY, J„ concur. DONALDSON, J., sat, but did not participate due to his untimely death.

1 . In 1985, the legislature increased the time limit to 180 days.

2 . The district judge, in his memorandum opinion, states that "since the court finds immunity from the tort, the timeliness of the filing is without significance." Thus, the district court granted summary judgment on an immunity theory, rather than on a failure to comply with the 120-day notice requirement of the Act. This, however, does not require a remand or reversal. "[W]here an order of a lower court is correct but is based upon an erroneous theory, the order will be affirmed upon the correct theory.” Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 179, 595 P.2d 709, 713 (1979), as quoted in Foremost Ins. Co. v. Puttier, 102 Idaho 138, 144, 627 P.2d 317, 323 (1981). Accord, Duthie v. Lewiston Gun Club, 104 Idaho at 753, 663 P.2d at 289.