Rodrock Homes of Johnson County, LLC et al v. Olathe, Kansas, City of

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RODROCK HOMES OF JOHNSON
COUNTY, LLC, et al.,
Plaintiffs,
v. 	Case No. 24-2592-JWB
CITY OF OLATHE, KANSAS,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs’ motion to alter or amend the judgment pursuant
to Fed. R. Civ. P. 59(e). (Doc. 43.) The motion is fully briefed and ripe for decision. (Docs. 44,
45, 48.) The motion is DENIED for the reasons stated herein.
I. 	Facts
Rodrock Homes of Johnson County, LLC and Prieb Homes, Inc. (“Plaintiffs”) originally
filed this lawsuit on December 20, 2024, against Defendant City of Olathe, Kansas (“City”). (Doc.
1.) The dispute centers on the City’s Park Excise Tax, established under Olathe Municipal Code
§ 3.30. Plaintiffs brought two claims: (1) under § 1983, Plaintiffs assert that the Park Excise Tax
amounts to an unconstitutional taking in violation of the Fifth and Fourteenth Amendments to the
Federal Constitution and (2) Plaintiffs brought a state-law inverse condemnation claim under
K.S.A. § 26-513(a), which provides that “private property shall not be taken or damaged for public
use without just compensation.” (Id. at 8, 13.) Plaintiffs acknowledge their state law claim relies
entirely on whether a “taking” occurred as part of their § 1983 claim. (Doc. 26 at 6–7.)
On March 13, 2025, the City filed a motion for judgment on the pleadings on various
grounds. 	(Doc. 14.) 	Particularly compelling, the City argued that Plaintiffs’ claims must fail
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because the Park Excise Tax constitutes a tax which, as a matter of law, is not a taking under the
Federal Constitution. 	The court agreed and found that the Park Excise Tax exhibited all the
distinctive characteristics of a tax. (Doc. 41 at 9–13.) As such, the court granted the City’s motion
on September 22, 2025, and entered judgment the same day. (Docs. 41, 42.)
Plaintiffs now move to amend or alter the judgment specifically requesting the court vacate
its prior order (Doc. 41) dismissing Plaintiffs’ claims and rule in favor of Plaintiffs’ previously
mooted motion for partial summary judgment (Doc. 31). (Doc. 44 at 1.)
II. 	Standard
Rule 	59(e) 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	permits 	a 	party 	to 	request
reconsideration of a final judgment. “Grounds which justify alteration or amendment under Rule
59(e) include: (1) an intervening change in controlling law; (2) new evidence that was previously
unavailable; or (3) a need to correct clear error or prevent manifest injustice.” Lenexa 95 Partners,
LLC v. Kin, Inc., No. 20-2367-JWB, 2023 WL 171925, at *1 (D. Kan.) (citation omitted), appeal
dismissed, No. 23-3025, 2023 WL 5608807 (10th Cir. Apr. 27, 2023). Rule 59(e) motions “allows
a party to reargue previously articulated positions to correct clear legal error.” Hayes Family Tr.
v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017). But after entry of judgment
the public “gains a strong interest in protecting the finality of judgments.” 	Nelson v. City of
Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). 	Moreover, a Rule 59(e) motion “is not
appropriate to revisit issues already addressed or advance arguments that could have been raised
in prior briefing.” Rezac Livestock Comm. Co., Inc. v. Pinnacle Bank, No. 15-4958-DDC, 2019
WL 2613179, *9 (D. Kan. June 26, 2019) (quotation omitted). In other words, Rule 59(e) motions
“may not be used to relitigate old matters, or to raise arguments or present evidence that could
have been raised prior to entry of the judgment.” Nelson, 921 F.3d at 929 (quoting Exxon Shipping
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Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)). Finally, a district court has discretion when deciding
a motion to reconsider. Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988).
III. 	Analysis
In support of its motion, Plaintiffs assert the need to correct a clear error of law or prevent
manifest injustice, rather than a change in the law or new evidence, as the basis for reconsideration
of the court’s prior order. (Doc. 44.) The City responds that Plaintiffs have provided no evidence
or argument which would support a claim for relief under the relevant standard, and moreover, has
asserted arguments not previously articulated in past filings. 	(Doc. 45.) 	The court agrees that
Plaintiffs have not shown clear error or manifest injustice.
Plaintiffs’ first argument posits that this court erred by concluding the City could
constitutionally impose the Park Excise Tax without making it a condition to obtaining a building
permit. (Doc. 44 at 5–7.) Plaintiffs argue that without the permit condition, the Park Excise Tax
would be an illegal excise tax under Kansas law because it would not qualify under the K.S.A. §
12-194(a)(4) exception for “development excise tax[es] . . . in existence on January 1, 2006.” (Id.
at 5.) This section of Kansas law does not appear in the record, nor does Plaintiff assert that the
Park Excise Tax is made illegal because of it. 	Such an argument could have been helpful to
Plaintiffs’ cause; however, bringing it for the first time in a Rule 59(e) motion is improper. Nelson,
921 F.3d at 929. To the extent this argument is properly before the court and alleges clear error or
manifest injustice, it nevertheless fails.
Plaintiffs misunderstand the court’s prior order. (Doc. 44.) The analytical question this
court previously asked was whether the Park Excise Tax “irrespective of the building permit being
conditioned on its payment [] would be considered a taking.” 	(Id. at 7.) 	This was a necessary
framing of the question for purposes of takings analysis, not a conclusion as to the legality on
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whether the City could impose the Park Excise Tax in some different form. Indeed, the analytical
framework required by Supreme Court precedent dictated the inquiry. 	When evaluating an
unconstitutional conditions claim under the Takings Clause, courts must first determine whether
“the government could not have constitutionally ordered the person asserting the claim to do what
it attempted to pressure that person into doing.” 	Koontz v. St. Johns River Water Management
Dist., 570 U.S. 595, 612 (2013). In other words, the first step is to ask whether “the condition at
issue would have been a compensable taking if imposed outside the permitting process.” Sheetz
v. Cnty. of El Dorado, California, 601 U.S. 267, 281 (2024) (Sotomayor J., and Jackson J.,
concurring) (citing Koontz, 570 U.S. at 612). If the answer is “no,” then no takings problem exists.
Id. In light of this precedent, the court was required to apply that mandatory analytical framework
and concluded the Park Excise Tax would not constitute a taking even if considered outside the
permitting context. Therefore, Plaintiffs’ assertion that the Park Excise Tax would be illegal under
Kansas law if imposed outside the permitting context, even if true, has no bearing on whether it
violates the Takings Clause of the Federal Constitution—a violation of state law does not, by itself,
constitute a violation of the Federal Constitution. See United States v. Green, 178 F.3d 1099, 1105
(10th Cir. 1999) (stating that while conduct “may have violated state law” it is “irrelevant as long
as the standards developed under the Federal Constitution were not offended.”).
Plaintiffs’ right to develop property does not encompass a right to develop said property
free from generally applicable tax obligations. 	It is well established that the collection of a tax
does not constitute a taking within the meaning of the Federal Constitution. See Koontz, 570 U.S.
at 612–15. 	Here, the Park Excise Tax—as previously articulated by this court—bears all the
hallmarks of a tax under Kansas law and Tenth Circuit precedent. (Doc. 41 at 9–13.) And Plaintiff
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has failed to challenge even one of those distinctive characteristics of a tax. Accordingly, Plaintiff
has failed to demonstrate clear error warranting reconsideration.
Plaintiff’s remaining arguments raise “new” claims. (Doc. 48 at 2.) Namely, that the Park
Excise Tax violates the uniformity provision in Article 11, § 1 of the Kansas Constitution and the
Equal Protection Clause of the United States Constitution because it imposes a tax on those who
choose to develop their properties while not imposing that same tax on those who choose not to
develop—a distinction Plaintiffs deems constitutionally impermissible. 	(Doc. 44 at 7–9.) 	The
cases cited by Plaintiffs bear no relevance to substantiate this argument. However, the court need
not reach them because Plaintiff is advancing entirely new claims, which is improper in a Rule
59(e) motion.
Plaintiffs’ original complaint included two claims: (1) a § 1983 claim alleging the Park
Excise Tax is an unconstitutional taking in violation of the Fifth and Fourteenth Amendments to
the Federal Constitution; and (2) a state-law inverse condemnation claim. (Doc. 1 at 8, 13.) In the
instant motion, Plaintiffs argue the reason they raise these new arguments is because they must
address this court’s “unbriefed holding” that the Park Excise Tax, when considered outside of the
permitting process, does not amount to a compensable taking. (Docs. 48 at 2; 44 at 5–6.) But the
City did brief it.1 A fact Plaintiffs admit—one page later. (Doc. 48 at 3.) Plaintiffs then proceed
to assert that it “could not have possibly guessed that the City’s main argument was a phrase used
once.” (Id.) This contention is inaccurate. But even if true, the frequency with which a phrase
appears does not diminish Plaintiffs’ duty to address the substance of the City’s arguments because
“Plaintiff has the responsibility to address the arguments made by the [City].” 	Tarantola v.
1 The court notes that even if Defendant had not briefed this “first step,” the court is not “constrained by the parties’
legal theories,” as it has an obligation to apply the law correctly. See United States v. Spradley, 146 F.4th 949, 958
(10th Cir. 2025) (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly
before the court,” the court can “identify and apply the proper construction of governing law.”).
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Cushing Mem’l Hosp., No. 10-3131-RDR, 2012 WL 5877532, at *1 (D. Kan. Nov. 20, 2012),
aff’d, 525 F. App’x 836 (10th Cir. 2013). Plaintiffs have therefore not adequately explained why
these facts and/or accompanying arguments were not previously articulated to the court. And the
law is clear: “Rule 59(e) motions are ‘not appropriate to . . . advance arguments that could have
been raised in prior briefing.’” Nelson, 921 F.3d at 929 (citing Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000)). 	Accordingly, Plaintiffs’ use of a Rule 59(e) motion is an
“inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion
merely advances new arguments, or supporting facts which were available at the time of the
original motion.” Servants of Paraclete, 204 F.3d at 1012; see also Voelkel v. Gen. Motors Corp.,
846 F. Supp. 1482, 1483 (D. Kan.), aff’d, 43 F.3d 1484 (10th Cir.1994) (stating that Rule 59(e)
cannot serve as “a second chance for the losing party to make its strongest case or to dress up
arguments that previously failed”). Plaintiffs have not met their burden of establishing clear error
in the court’s prior order.
IV. 	Conclusion
THEREFORE, Plaintiffs’ motion to alter or amend the judgment (Doc. 43) is DENIED.
IT IS SO ORDERED. Dated this 5th day of January, 2026.
__s/ John W. Broomes________________
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
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