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Guss v. Fort Hays State University

January 11, 2008; as amended January 15, 2008


Appeal from Ellis District Court; EDWARD E. BOUKER, judge.


1. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., requires a plaintiff to exhaust his or her administrative remedies before seeking judicial review. Whether a plaintiff exhausted his or her administrative remedies is a question of law over which an appellate court's review is unlimited.

2. A plaintiff seeking judicial review of an agency's action must file a petition for judicial review within 30 days after service of a final order. While the KJRA does not define a final order, it defines an agency's order as a particular type of agency "action" which determines the legal rights and duties of the parties. An agency action is non-final if the agency intends, or is reasonably believed to intend, that its action is preliminary, preparatory, procedural, or intermediate. A final agency action is simply any agency action other than a non-final agency action.

3. No special incantations or magic words are required to create a final agency order. Kansas courts have consistently recognized that a relatively informal letter may constitute a final order for purposes of the statute.

4. An order cannot be final if the matter is still under active consideration by the tribunal. The fact that ministerial tasks remained to be done does not establish that the matter is still under active consideration.

5. Failure to satisfy K.S.A. 77-613(e) with respect to service of an agency's final order does not render the document something other than a final order. Failure to strictly comply with this statute simply tolls the 30-day period for the filing of a petition for judicial review.

6. It is frequently said that when the contract is of a type which regularly appears before the agency and with which the agency has acquired some familiarity and expertise, the agency's interpretation, if reasonable, is persuasive and is entitled to careful consideration by the reviewing courts. This principle has no application when the issue presented is that of ordinary contract interpretation in the familiar context of an employment agreement involving no specialized or arcane expertise; and when the agency is not a neutral arbiter between competing parties, but rather is one of the competing parties itself, being a party to the contract it now seeks to interpret. Accordingly, we apply the familiar rule that contract interpretation is a matter of law over which an appellate court exercises unlimited review.

7. In a contract dispute the court's task is to ascertain the intent of the parties. If the terms of the contract are clear, there is no room for rules of construction, and the intent of the parties is determined from the contract itself. In other words, absent any ambiguity, courts must give effect to the intent of the parties as expressed within the four corners of the contract.

8. A contract should not be interpreted in a manner which renders a term of the contract meaningless.

The opinion of the court was delivered by: McANANY, J.



This appeal arises out of a dispute between Fort Hays State University and Dr. Thomas O. Guss, a faculty member, regarding the interpretation of Guss' retirement agreement. Guss sought judicial review of the University's adverse interpretation of the agreement. On review the district court interpreted the agreement in Guss' favor. The University now appeals, claiming the district court erred in its interpretation of the agreement. The University also contends that Guss failed to exhaust his administrative remedies and failed to file his petition for judicial review within the requisite time period.

Guss began his transition into retirement in 2003. He and the University executed a Notice of Continuing Tenured Faculty Appointment on June 25, 2003. The University agreed to employ Guss half-time as a professor for the 2003-2004 academic year. The notice contained the statement: "Details are included in the phased retirement agreement."

The 5-year phased retirement agreement was entered into 2 days later on June 27, 2003. The agreement was effective August 17, 2003. Guss agreed to work half-time as a professor at an annual salary of $26,004. He remained eligible for annual merit salary adjustments. The University agreed to continue Guss' half-time position until May 18, 2008, subject to certain contingencies. With respect to his half-time teaching schedule, "[t]he exact schedule by which this reduction is achieved may be adjusted annually by mutual agreement between the Employee and the University."

The parties agreed to begin Guss' phased retirement by Guss being off work for the fall semester of the 2003-2004 academic year and then teaching full-time during the spring semester. There is no dispute that Guss ...

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