Huber v. Engle

1

NOT DESIGNATED FOR PUBLICATION

No. 112,833

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DREW HUBER,
Appellant,

v.

HAROLD ENGLE, JR.,
Appellee.


MEMORANDUM OPINION

Appeal from Greenwood District Court; JANETTE L. SATTERFIELD, judge. Opinion filed April 8,
2016. Affirmed.

Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellant.

Karen K. McIlvain, of McIlvain Law Office, LLC, of Madison, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

BUSER, J.: After Harold Engle, Jr., voluntarily dismissed his lawsuit against Drew
Huber, which challenged Huber's construction of levees along the banks of the Verdigris
River without a permit from the Kansas Department of Water Resources (KDWR), Huber
sued Engle for malicious prosecution of a civil action. Subsequently, the district court
entered summary judgment in favor of Engle and dismissed Huber's malicious
prosecution lawsuit.

On appeal, Huber contends the district court erred in finding that Engle had
probable cause to initiate or continue his lawsuit against Huber regarding the construction
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of the levees. We disagree with Huber's contention and affirm the district court's
judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 19, 2010, Engle filed a lawsuit against Huber alleging that he was
illegally constructing levees along the Verdigris River in Greenwood County, Kansas.
Specifically, Engle asserted that Huber's actions violated K.S.A. 2015 Supp. 24-126,
which prohibits the construction of "any levee or other such improvement on, along or
near any stream of this state which is subject to floods, freshets or overflows, so as to
control, regulate or otherwise change the flood waters of such stream" without a permit
from the KDWR. See K.S.A. 2015 Supp. 24-126(a). Of note, K.S.A. 2015 Supp. 24-
126(a) also provides, in relevant part, that any person who violates the act shall be guilty
of a misdemeanor. In his lawsuit, Engle claimed that unless the illegal construction
ceased, his property, its value, and the income he derived from it, would be detrimentally
affected.

According to Engle's lawsuit, although the KDWR granted Huber a permit (LGW-
0007) in 2002, this permit only authorized Huber to place "fill along a bank of the
Verdigris River" and it did not give him the authority to raise the height of the bank.
Engle explained that Chris Warren, a KDWR employee, had confirmed that Huber's
application for a permit to construct a levee (LGW-0011) along the river banks was
pending. Yet, although "[Huber] had not been granted approval or authorized (as required
by law) to build any levee," Engle had personally observed Huber constructing the
levees. As a result, Engle, through Warren, "renewed his earlier complaint" with the
KDWR about LGW-0007 by alleging that the work was outside the permit's scope and he
lodged a complaint regarding Huber's decision to erect two levees without a permit.

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In his lawsuit, Engle insisted that the illegal levees were "seriously and irreparably
changing the flow of the flood waters to [his] detriment . . . [by] causing a higher volume
of flood waters to be diverted onto [his] land and scouring channels in [his] property."
Engle requested a declaratory judgment finding Huber's construction of the levees and/or
diversion of water was unlawful and finding that any unpermitted levees must be
immediately removed and the Verdigris River restored to its original condition.

Engle also moved for a temporary restraining order because, according to Engle,
irreparable harm would come to him if Huber continued building levees in "total
disregard for the law[, because] . . . [o]nce soil is washed away and the land scoured it
cannot be replaced" and in the event of heavy rain, his land would flood. Engle
maintained that while he had "tried to address this matter through [the] KDWR, but [the
agency] ha[d] not yet performed an inspection and [was] unable to tell [him] when an
inspection [would] be performed[; thus], his only recourse [was to] turn to the courts for a
restraining order."

The same day that Engle filed his lawsuit, the district court granted him a
temporary restraining order. The district court ordered Huber to refrain from
"constructing or continuing to construct, any non permitted levees along the bank of the
Verdigris River . . . or in any way diverting or changing the flow of water along [its]
banks . . . without proper, lawful authorization from [the] KDWR." The restraining order
was to remain in effect until the commencement of a hearing, which either party could
request. See K.S.A. 60-903.

On December 7, 2010, Huber sent Engle a letter demanding that he "withdraw the
restraining order and dismiss the [p]etition because it was not brought in good faith." The
next day, Huber filed an answer asserting a general denial and several affirmative
defenses. Huber insisted that Engle's "complaints as to said construction [were]
completely without merit" because, on December 2, 2010, the KDWR advised him that a
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"permit was not required for restoring the channel bank to its original condition." Huber
attached a copy of a letter he received from the KDWR's Water Structures Engineer,
Edward E. Byrd, P.E.:

"This will acknowledge receipt of your request for a permit determination. This
project will consist of restoring the channel bank back to its original condition[.] . . .
"After reviewing the information received in this office on November 30, 2010,
we have concluded that this project is not within the jurisdiction of this agency under
K.S.A. [2010 Supp.] 82a-301. This statute states: 'Jetties or revetments for the purpose of
stabilizing a caving bank which are properly placed shall not be construed as obstructions
. . . .' Provided you do not modify the cross-section of the stream, by flattening the bank
for example, a permit will not be required from this agency."

Subsequently, on December 13, 2010, Byrd sent Huber a letter explaining that on
December 6, 2010, he conducted an onsite inspection of the various structures Huber had
erected on his land along the Verdigris River, i.e., "a previously permitted levee" (LGW-
0007) and a levee (LGW-0011) for which a permit was currently under review.
According to Byrd, the inspection was due to the KDWR's receipt of information
indicating that LGW-0007 may not be in compliance with the approved plan and that
both levees may be causing damage to an adjacent landowner's property. Byrd detailed
his findings:

"During the inspection, [Huber] showed me the project area for LGW-0007. This
levee is still under construction. . . . I observed that work was continuing with the
placement of broken concrete and other fill material at approximately the same location
as shown on the approved plans. It did not appear at the inspection that the fill extended
beyond the original eroded area of the old stream channel.
"Also, [Huber] showed me the location of the other after-the-fact levee, LGW-
0011. It appeared that work had recently been completed on the levee. [Huber] explained
that the levee suffered damage from flooding that occurred earlier this year. [Huber] also
brought the survey equipment and gathered additional elevation data necessary for further
5

consideration by the Chief Engineer for approval. Based on the previous plans that
[Huber] submitted to our office, it did not appear that the apparent repair work had
modified the levee as described in the current submitted plans. Further, any hydraulic
impacts would be on property owned by [Huber].
"[Huber] also showed me a pump pad to be used to situate his pump to be used
for irrigation of crops on a nearby field. The pad was located near LGW-0011. The pad
extended about ten feet beyond the existing stream bank on the Verdigris River, creating
a stream obstruction. I determined it to be jurisdictional in the current configuration.
Based on this determination, I informed [Huber] that he must modify the pad so it does
not extend beyond the stream bank of the river, or submit an application for a channel
change and/or stream obstruction[.] . . .
"Finally, [Huber] showed me an eroded area on a tributary to the Verdigris River
identified as CGW-0037. [Huber] recently submitted an application for a permit and
received a non-jurisdictional letter from our office because it involved bank stabilization.
Based on my findings at this inspection, I confirmed to [Huber] that this activity is indeed
non-jurisdictional as set forth in our letter dated December 2, 2010. He is currently in
compliance with K.S.A. [2010 Supp.] 82a-301 to 305a regarding this activity. There was
also one final levee that [Huber] had had recently completed repairs to as well, identified
as LGW-0012. Our office had previously determined this levee to be non-jurisdictional,
and it did not appear to have been modified from the information provided to us in the
approval determination. Therefore, no further action will be taken on this levee at this
time.
"Based on the observations at the inspection, it was determined that LGW-0007
was still under construction, and should be completed soon as shown on the approved
plans. . . . The pump pad is currently in non-compliance with K.S.A. [2010 Supp.] 82a-
301 to 305a and will need to be modified to be non-jurisdictional, or an approval should
be pursued from the Chief Engineer. . . .There will be no further action to be taken on
LGW-0007 at this time. However, LGW-0011 will remain in non-compliance until it is
removed or an approval is given by the Chief Engineer. No further work should be
performed on this levee unless prior approval is issued by the Chief Engineer."
(Emphasis added.)


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Byrd concluded his letter by advising Huber it was "possible that other action may
be taken, if necessary to ensure that [his] levees [did] not cause an adverse hydraulic
impact or any other detrimental effects on lands not owned by [him]" and that he "may be
liable for any flood damages that [we]re determined to be caused by [his] levees."

The next day, December 14, 2010, Huber sent Engle a copy of Byrd's letter along
with a request that Engle immediately advise whether he planned to release the temporary
restraining order. In response, Engle stated he would not dismiss his claims unless Huber
removed the unauthorized structures he had erected. Engle explained that not only did the
restraining order not place any undue burden upon Huber, because it only prevented him
from constructing or continuing to construct non-permitted levees, the order was fully
appropriate because his conversations with the KDWR and Byrd's letter both confirmed
that Huber had performed unauthorized construction and was in noncompliance with
governing statutes.

On January 24, 2011, Huber filed an application with the KDWR for approval to
alter the point of diversion by changing the "location of one of the three authorized
pumpsites . . . to a point downstream approximately 140 feet." Almost 1 year later, on
January 3, 2012, Chad Voigt, P.E., the Water Structures Program Manager for the
KDWR, advised Engle that Huber intended to submit engineering data and calculations
to support his permit applications for levee modifications on his property. While Voigt
had not yet received that information, Voigt told Engle that based on his conversations
with Huber, he expected the "survey work should have been completed by now, and the
analysis of that data should be in progress and submitted in the near future."

Two months later, on March 13, 2012, Voigt advised Engle that the KDWR had
reviewed Huber's engineering data and had decided to approve his applications for the
"two levee locations and the bank grading for a pump site" and, thus, Huber was now in
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compliance with KDWR regulations. One week later, on March 20, 2012, Huber sent
Engle another letter demanding that he withdraw the temporary restraining order.

Shortly thereafter, however, Huber apparently submitted a plan revision to the
KDWR for LGW-0011 and LGW-0012. The KDWR approved Huber's revised plans on
April 3, 2012, with the modification that the work authorized by the permit must be
completed on or before July 1, 2014.

Three months later, on July 2, 2012, Engle filed a motion to dismiss with prejudice
his allegations regarding the improper building of the levees because Huber had obtained
postapproval for their construction from the KDWR. Engle also sought to dismiss his
request for damages without prejudice because while his property had not yet been
damaged, the building of the levees could cause damage in the future. In response, Huber
objected to the dismissal on the ground that all of Engle's allegations, including his
request for damages, should be dismissed with prejudice. Huber also filed a motion for
summary judgment on July 2, 2012, requesting such a dismissal.

On August 28, 2012, the district court dismissed Engle's allegations pertaining to
the unauthorized construction of the levees with prejudice and his request for damages
without prejudice.

One year later, on August 5, 2013, Huber sued Engle for malicious prosecution of
a civil action. Huber alleged that not only had Engle brought a lawsuit against him
without probable cause, he had continued to prosecute the frivolous lawsuit for "a
malicious purpose."

Engle responded by moving for summary judgment on the ground that Huber had
not established a prima facie claim for malicious prosecution. In particular, he asserted
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that Huber had failed to come forward with evidence to support the essential elements of
a malicious prosecution claim.

Huber countered that sufficient evidence existed to support his malicious
prosecution claim. Specifically, Huber claimed that Engle did not have probable cause to
initiate his lawsuit because, as demonstrated by a complaint Engle filed with the KDWR
in 2007, and Engle's correspondence with the agency in 2008, Engle knew about his
pending permit applications for LGW-0007 and LGW-0011, and, thus, Engle had no
reasonable basis to file a lawsuit until the KDWR ruled on the applications. In the
alternative, or as an additional act of malicious prosecution, Huber claimed that while
Engle did not have probable cause to continue the lawsuit after the KDWR granted his
permit applications, Engle waited "more than ninety (90) days after receiving actual
knowledge of the approval [to request a voluntary dismissal] and [he] ha[d] not set forth
any rational basis for the delay."

In response, Engle acknowledged that on February 14, 2007, and April 4, 2008, he
sent Byrd a letter to follow up on the complaint he had registered with the KDWR
regarding levees constructed under permits LGW-0007 and LGW-0011. He also
acknowledged that on June 6, 2008, his attorney requested a complete copy of the
KDWR's files which related to permitting, complaint, enforcement, inspection, and/or
review of the levees in question, but Engle asserted that he had no obligation to wait for
the KDWR to act prior to initiating his lawsuit. Additionally, Engle insisted that he took
no further action to prosecute the case after the KDWR granted Huber's permit
applications, and Huber was not harmed during the 90 days prior to his dismissal request
because the restraining order only prohibited Huber from constructing structures for
which he did not have a permit.

On July 1, 2014, the district court issued a memorandum decision granting Engle's
motion for summary judgment. The district court explained:
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"In cases for malicious prosecution, the inquiry as to want of probable cause is
limited to the facts and circumstances as they appeared to defendant at the time the
prosecution was commenced. [Citations omitted.] If the facts are undisputed, the question
of probable cause is one for the court to decide as a matter of law. [Citation omitted.]
Although it is the law that a voluntary dismissal of the prior action without prejudice may
be a termination in favor of the person against whom that action was brought, this court
does not find that the commencement of the civil action seeking an injunction or
commencing suit for non compliance of a statute in this case was malicious in nature or
with ill will based on an absence of probable cause. The court finds that [Engle] acted
with probable cause[.]"

Huber moved to alter or amend the judgment because the district court had failed
to address his contention that Engle elected "his remedies by choosing to proceed before
the [KDWR] and therefore he was barred from filing a civil proceeding unless the
[KDWR] denied [his permit] applications" because the Kansas Judicial Review Act
(KJRA), K.S.A. 77-601, et seq., "establishes the exclusive means of judicial review of
agency action."

Engle responded to the motion by asserting the KJRA was not applicable because
his lawsuit would not have required the district court to usurp the KDWR's administrative
authority, as it "was not about whether a permit could/should be issued, it was about the
fact that there was no permit for the work that was being done." Moreover, Engle pointed
out that even if the KJRA were applicable, the KJRA does not prohibit district courts
from issuing a restraining order while an administrative proceeding relating to the subject
matter of the order remains pending.

On October 7, 2014, the district court issued a supplemental summary judgment
order denying Huber's motion to alter or amend. The court explained:

"Although the [KJRA] under K.S.A. [2011 Supp.] 77-603 establishes exclusive
means of judicial review of agency action, in this Court's view said mandate does not
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apply to a third party not a party to the administrative application process. The statute
contemplates the licensee being bound by the administrative procedures not a
complaining party or third party. Further, this was an original action for an order of
restraint to automatically terminate upon administrative compliance. The case law
supports injunctive relief in this circumstance. Johnson [Co.] Developmental Supports v.
Kansas Dept. of SRS, 42 Kan. App. 2d 570[, 216 P.3d 658] (2009)."

Huber timely appeals.

WAS THERE PROBABLE CAUSE TO INITIATE OR CONTINUE THE LAWSUIT?

On appeal, Huber contends the district court erred when it granted Engle's motion
for summary judgment because Huber sufficiently satisfied his burden to produce
evidence that Engle lacked probable cause to initiate and/or continue prosecuting his
lawsuit against Huber. In particular, Huber argues:

"The district court erred in finding Harold Engle as a third party complainer was
not bound by the pending administrative proceeding filed by Drew Huber's applications
with the [KDWR] because he was not a party even though he participated in the
application process by complaining.
. . . .
"Harold Engle elected his remedy by initially filing written complaints as to
Drew Huber's applications with the [KDWR]. Harold Engle therefore lacked probable
cause to sue in a civil proceeding for damages and a restraining order until the issuance of
the permits had been determined."

Our standard of review for summary judgment proceedings is well settled:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show 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 [district] court is required to resolve all facts and inferences which
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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[; if] reasonable minds could differ
as to the conclusions drawn from the evidence, summary judgment must be denied.'
[Citation omitted.]" Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 622, 345 P.3d 281
(2015).

Moreover, as in this case, where there is no factual dispute, appellate review of an order
regarding summary judgment is de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d
625 (2013).

To prevail on his malicious prosecution claim, Huber needed to prove: (1) Engle
initiated, continued, or procured a lawsuit against him; (2) Engle did so without probable
cause; (3) Engle acted with malice, i.e., primarily for a purpose other than securing a
proper adjudication of the allegations upon which he premised the lawsuit; (4) Engle's
lawsuit terminated in his favor; and (5) he sustained damages. See In re Landrith, 280
Kan. 619, 647, 124 P.3d 467 (2005), cert. denied 549 U.S. 838 (2006); Bergstrom v.
Noah, 266 Kan. 829, 836-37, 974 P.2d 520 (1999); Nelson v. Miller, 227 Kan. 271, 276,
607 P.2d 438 (1980); Ball v. Credit Bureau Services, Inc., No. 111,144, 2015 WL
4366440, at *5 (Kan. App. 2015) (unpublished opinion). "[T]he elements of malicious
prosecution are to be strictly construed to keep the cause of action from being wielded by
wrongdoers as a threat to ward off legitimate suits." Ball, 2015 WL 4366440, at *8
(citing Laing v. Shanberg, 13 F. Supp. 2d 1186, 1188-89 [D. Kan. 1998]).

While the district court used broad language in defining the parameters of its
summary judgment ruling, the court found that probable cause did exist for Engle to file
and continue prosecuting the lawsuit and it did not consider whether Huber had
established the remaining elements of malicious prosecution. As a result, the propriety of
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the district court's probable cause determination is the only issue before us on appeal. See
Bartal v. Brower, 268 Kan. 195, 201, 993 P.2d 629 (1999).

Huber and Engle dispute whether Engle had probable cause to initiate and/or
continue prosecuting his lawsuit against Huber. Resolution of this issue on appeal
requires an understanding of the meaning of probable cause in the context of malicious
prosecution litigation. A brief summary of Kansas law follows.

"Probable cause for instituting a proceeding exists when there is a reasonable
ground for suspicion supported by circumstances sufficiently strong in themselves to
warrant a cautious or prudent person in the belief that the party committed the act of
which he or she is complaining." Bergstrom, 266 Kan. at 837. This inquiry is limited to
the facts and circumstances as they appeared to the initiator of the challenged lawsuit at
the time he or she commenced the prosecution. If the validity of a claim is uncertain, the
question is not whether the individual bringing the claim was correct in believing the
claim would be meritorious; instead, the question is "whether that person's opinion that
there was a sound chance that the claim might be sustained was a reasonable one." 266
Kan. at 837. A district court may decide whether probable cause existed as a matter of
law when the relevant facts are undisputed, but if the facts are in dispute, it is the district
court's duty to submit the question to the jury. 266 Kan. at 837.

Moreover, "[p]robable cause is not a static term in a malicious prosecution action";
therefore, "even if a person properly initiated a suit, that person could still be held liable
for malicious prosecution for wrongfully continuing the suit when it became apparent that
probable cause was lacking. [Citations omitted.]" Miskew v. Hess, 21 Kan. App. 2d 927,
933, 910 P.2d 223, rev. denied 259 Kan. 928 (1996). As in this case, a court may be
tasked not only with determining whether probable cause existed to initiate the lawsuit,
but whether probable cause continued to exist thereafter. See 21 Kan. App. 2d at 933.

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The Initiation of the Lawsuit

Huber does not challenge the reasonableness of Engle's belief that his claims
would be meritorious. Instead, Huber claims that because Engle participated in the chief
engineer's determination of Huber's permit applications by acting as a third-party
complainer, the KJRA prohibited him from seeking judicial review until a final order had
been issued and he had properly exhausted his administrative remedies.

K.S.A. 2015 Supp. 24-126(a) makes it unlawful for any person to "construct,
cause to be constructed, maintain or cause to be maintained, any levee or other such
improvement on, along or near any stream of this state which is subject to floods, freshets
or overflows, so as to control, regulate or otherwise change the flood waters of such
stream" without "first obtaining the approval of plans for the same by the chief engineer
of the [KDWR]," and private persons and governmental entities are liable for damages
caused by the diversion of surface water from its natural course of flowage. See Johnson
v. Board of Pratt County Comm'rs, 259 Kan. 305, 313, 913 P.2d 119 (1996); Dougan v.
Rossville Drainage Dist., 243 Kan. 315, 319, 757 P.2d 272 (1988); Reeder v. Board of
County Commissioners, 193 Kan. 182, 185-87, 392 P.2d 888 (1964); Horn v. Seeger, 167
Kan. 532, 538-39, 207 P.2d 953 (1949); Parker v. City of Atchison, 58 Kan. 29, Syl. ¶ 1,
48 P. 631 (1897); DeWerff v. Schartz, 12 Kan. App. 2d 553, 556, 751 P.2d 1047 (1988);
Bower v. Cooseman, No. 98,019, 2008 WL 2510579, at *6 (Kan. App. 2008)
(unpublished opinion). Moreover, a separate line of Kansas caselaw has recognized that
damming or altering the natural water flow may qualify as an actionable nuisance.
Dougan, 243 Kan. at 319-20; see Henderson v. Talbott, 175 Kan. 615, 622, 266 P.2d 273
(1954).

One Kansas case provides helpful precedent. In Simon v. Neises, 193 Kan. 343,
Syl. ¶ 2, 395 P.2d 308 (1964), our Supreme Court held that where a levee has been
constructed without the permission of the KDWR, "an action to compel removal of levee
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and restoration of land to former elevation and for damages sustained by its unlawful
construction may be brought by [an] individual alleged to have been damaged by
construction of levee."

In Simon, the plaintiffs sought a mandatory injunction to abate a levee as a
nuisance and damages occasioned by its construction. The defendants did not have a
permit from the KDWR to construct the levee; in fact, they had never filed an application
for one. After the jury returned a general verdict in favor of the plaintiffs, the district
court approved the verdict and found the

"construction and maintenance of the levee by the defendants was unlawful . . . in that no
approval of the plans for the construction of the levee was ever obtained from the chief
engineer . . . as required by law, [and] that the maintenance of the levee constituted a
continuing nuisance which should be abated." 193 Kan. at 345.

Accordingly, the district court issued an injunction against the defendants to abate and
remove the levee at their expense. 193 Kan. at 345.

On appeal, the defendants contended, that G.S. 1961, 24-126 prohibited individual
landowners from seeking a mandatory injunction to abate a levee because the statute
provided this type of action may only be maintained by the attorney general. Similar to
the current version of the statute, G.S. 1961, 24-126 provided:

"'And in the event any such structure is about to be constructed, is constructed or
maintained by any person, corporation, county, city, town, township or district without
approval of plans by the chief engineer, it shall be the duty of the attorney general, to file
suit in a court of competent jurisdiction, to enjoin the construction or maintenance of
such structure.'" 193 Kan. at 346.


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See K.S.A. 2015 Supp. 24-126(d).

Our Supreme Court disagreed with the defendants' interpretation of G.S. 1961, 24-
126:

"[T]he plaintiffs are not seeking an injunction because of alleged damage to any public
property. The action is brought for the benefit of the plaintiffs alleged to have been
damaged by the construction of the levee described in the petition. Such action may be
brought by the individual or the party alleged to have been damaged, and the attorney
general has no authority in the name of the state to assume the burden of conducting an
action on behalf of private individuals. [Citations omitted.] The aforementioned statutes
and our decisions clearly authorize a mandatory injunction action under facts such as in
the instant case between owners of riparian agricultural lands to compel the removal of a
levee unlawfully constructed and the restoration of the land to its former elevation, and
for damages occasioned by its unlawful construction." 193 Kan. at 347-48.

Huber does not cite or address Simon. He argues the case the district court relied
on, Johnson Co. Developmental Supports v. Kansas Dept. of SRS, 42 Kan. App. 2d 570,
216 P.3d 658 (2009), is distinguishable and that Cochran v. Kansas Dept. of Agriculture,
291 Kan. 898, 249 P.3d 434 (2011), supports his assertion that Engle "elected his
remedy" when he lodged complaints with the KDWR. As a result, Engle lacked probable
cause to pursue a civil action because the administrative proceeding was still pending.

Huber is correct that Johnson Co. Developmental Supports does not bolster the
district court's determination that "case law supports injunctive relief" under the
circumstances present in this case. In Johnson Co. Developmental Supports, an
administrative action was pending regarding whether Alberta Brumley had a known
history of abuse, neglect, or exploitation of children or vulnerable adults that precluded
her from obtaining affiliate status in order to become a paid provider of services for her
disabled son. While the administrative action was pending, Johnson County
16

Developmental Supports (JCDS) threatened to terminate the affiliate status of the
Resource Center for Independent Living (RCIL) if it did not discontinue payments to
Brumley. Brumley, her husband, and son, subsequently filed suit in the Johnson County
District Court seeking a temporary restraining order preventing JCDS from refusing
payment to Alberta.

The district court issued the restraining order and ultimately granted an injunction
against JCDS. But as Huber asserts, the issue on appeal did not involve the validity of the
restraining order. Instead, the appellate court addressed the propriety of the district court's
later decision affirming the Kansas Department of Social and Rehabilitation Services'
final order requiring JCDS to affiliate with Alberta. 42 Kan. App. 2d at 577.

On the other hand, Cochran does not support Huber's argument. In Cochran, the
City of Wichita (City) applied for permits to appropriate water for beneficial use by
diverting groundwater. The Cochrans owned prior water appropriation rights in the
vicinity of the City's proposed points of diversion; thus, during the permit process, the
Cochrans informed the KDWR of their concerns that the City's appropriation would
adversely affect their senior water rights. The KDWR, however, ultimately approved the
City's permit applications. Following the issuance of the permits, the Cochrans requested
an administrative hearing, but the KDWR denied their request, finding that under K.S.A.
82a-711(c), the applicant is the only party with standing to appeal a permit determination.
The Secretary of the Department of Agriculture then denied the Cochrans' request for
administrative review because "K.S.A. 82a-711(c) conferred standing to request judicial
review of a permit only to the applicant for a permit and not to third parties." 291 Kan. at
901.

Subsequently, the Cochrans filed a petition for judicial review asserting the
permits did not sufficiently protect their senior water rights, and they requested the
"district court . . . stay or enjoin [the K]DWR's action under the permits pending the
17

Court's final decision; set aside or modify [the K]DWR's action; remand the matter for
further proceedings before the [K]DWR with directions to protect the Cochrans' senior
water rights; and provide other just and equitable relief." 291 Kan. at 901. The City and
the KDWR challenged the Cochrans' standing to seek review of the chief engineer's
order, and when the district court found that the Cochrans had standing, the City and the
KDWR pursued an interlocutory appeal. 291 Kan. at 901.

Regarding the issue of whether the Cochrans had standing under the Kansas Water
Appropriation Act (KWAA), K.S.A. 82a-701 et seq., and the KJRA, our Supreme Court
determined that although K.S.A. 2010 Supp. 82a-711(c) clearly limited standing for
administrative review of adverse water permit determinations by the chief engineer to the
applicant, the KJRA has a "much more inclusive provision regarding standing" because
K.S.A. 77-611(b) grants standing to obtain judicial review of final or nonfinal agency
actions to any "'person who was a party to the agency proceedings that led to the agency
action.'" 291 Kan. at 905. The court then explained:

"The KJRA defines 'party to agency proceedings,' as the term is used in K.S.A. 77-
611(b), as '[a] person to whom the agency action is specifically directed' or 'a person
named as a party to any agency proceeding or allowed to intervene or participate as a
party in the proceeding.' [Citations omitted.]
"The Cochrans have standing for judicial review under the KJRA if they
participated as a party in the proceeding. In [Board of Sumner County Comm'rs v.]
Bremby[, 286 Kan. 745, 189 P.3d 494 (2008)], this court considered this very question
and determined that a 'party' was a person who takes part in a transaction. [Citation
omitted.] Further, the court found that 'the legislature intended the term "proceeding" as it
is used in the KJRA to be read broadly to refer to the process by which an agency carries
out its statutory duties,' and the permit process [the Kansas Department of Health and
Environment] undertook to consider whether to grant a landfill permit was a proceeding
within the meaning of the KJRA. [Citation omitted.] This court held that an interested
person's 'submission of written comments during a public notice and comment period and
all persons' comments made during a public hearing held by an agency both qualify as
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participation within the meaning of the KJRA's standing requirements.' [Citation
omitted.]" 291 Kan. at 905.

Based on this definition, our Supreme Court determined the Cochrans had
standing under the KJRA because they met the definition of a "party," as they owned
prior appropriation rights in the vicinity of the authorized points of diversion for the
City's permits and they participated in the permit application process by providing input
to the KDWR regarding their concerns, which the chief engineer considered in rendering
a decision. 291 Kan. at 906-07.

Despite Huber's assertion to the contrary, Cochran does not support his claim that
the KJRA prohibited Engle from initiating "a civil proceeding for damages and a
restraining order until the issuance of the permits had been determined" by the KDWR. In
our view, Cochran simply indicates that although the KWAA only confers standing on
water appropriation applicants, the KJRA confers standing upon "a party to the
proceeding." Cochran, 291 Kan. at 907. Our Supreme Court has never indicated that by
participating as a party to the agency proceeding, an individual, such as Engle, has
"elected his [or her] remedy" and waived the right to pursue a civil action to protect an
interest in land. See 291 Kan. at 907.

Moreover, assuming Engle obligated himself to act within the confines of the
KJRA, the KJRA does not limit judicial review to a final agency action. The KJRA
defines a final agency action as "(1) . . . the whole or a part of any agency action other
than nonfinal agency action" and a nonfinal agency action as "(2) . . . the whole or a part
of any agency determination, investigation, proceeding, hearing, conference or other
process that the agency intends or is reasonably believed to intend to be preliminary,
preparatory, procedural or intermediate with regard to subsequent agency action of that
agency or another agency." K.S.A. 77-607(b). Generally, only final agency actions are
subject to judicial review. K.S.A. 77-607(a). Under K.S.A. 77-608(a), however, a person
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may take an interlocutory appeal of a nonfinal agency action if "[i]t appears likely that
the person will qualify under K.S.A. 77-607 for judicial review of the related final agency
action; and (b) postponement of judicial review would result in an inadequate remedy or
irreparable harm disproportionate to the public benefit derived from postponement." A
person qualifies for judicial review under K.S.A. 77-607(a) if he or she has (1) standing;
(2) exhausted his or her administrative remedies; and (3) timely filed the petition.

While the parties do not discuss K.S.A. 77-608, Huber essentially concedes that
Engle would qualify under K.S.A. 77-607 for judicial review of the KDWR's final
agency action. Therefore, the question becomes whether the second prong of the test for
bringing an interlocutory appeal from a nonfinal agency action, i.e., postponement of
judicial review would result in an inadequate remedy or irreparable harm
disproportionate from the public benefit derived from postponement, is satisfied. See
K.S.A. 77-608(b).

Based upon the facts alleged in Engle's petition, we find that he was fully entitled
to pursue an interlocutory review, as Huber was constructing illegal levees without a
permit in violation of K.S.A. 2015 Supp. 24-126, and according to Engle, the
unauthorized levees were "seriously and irreparably changing the flow of the flood
waters to [his] detriment." Under these circumstances, it was reasonable for Engle to seek
a court order requiring Huber to cease and desist construction until the KDWR finished
its review of his permit applications. Moreover, the public benefit derived from
postponement was minimal because Engle's lawsuit did not interfere with the permit
proceedings. As the district court found, Engle merely sought "an order of restraint to
automatically terminate upon administrative compliance."

In summary, Engle's participation in the permit application process by lodging
complaints with the KDWR regarding Huber's construction of illegal levees did not bar
him from initiating a civil proceeding to protect his interest in adjoining land. At the time
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Engle initiated his lawsuit there was probable cause that Huber was constructing levees
without proper permits or at variance with the permits granted. As a result, a critical
element of Huber's malicious prosecution claim was not proven.

The Continuation of the Lawsuit

Alternatively, Huber argues that the KDWR's December 13, 2010, letter, which
instructed him not to perform any more work on the levees pending the approval of his
applications, and/or the granting of his permit applications in March 2012, annulled any
probable cause Engle may have had for initiating a lawsuit. According to Huber, Engle's
decision to wait until July 2, 2012, to file his motion to dismiss qualifies as a separate
claim of malicious prosecution because Engle has not "set forth any rational basis for the
delay."

We are not persuaded this argument has merit. The December 13, 2010, letter
confirms that Huber had been constructing levees without a permit, and while Byrd
indicated that "[n]o further work should be performed" without KDWR approval, this
instruction does not negate Engle's probable cause to believe Huber would continue to act
in derogation of K.S.A. 2015 Supp. 24-126 if the court's restraining order were lifted.
(Emphasis added.) Likewise, with respect to the KDWR's approval of Huber's permit
applications, the KDWR approved a plan revision on April 3, 2012, which indicates that
the matter was not yet settled when the permits were issued.

Accordingly, Engle's decision to wait about 90 days to seek a voluntary dismissal
does not seem unreasonable because Engle needed time to review the KDWR's
documentation regarding the scope of the permits and to determine whether Huber was
going to comply with the approved plans. Moreover, as Engle points out, "Huber was not
harmed during that period of time, because the restraining order only applied to non
21

approved structures, once the structure was approved, the lawsuit restraining order did
not affect [his] ability to build approved structures."

In conclusion, we find the district court did not err when it granted Engle's motion
for summary judgment because Huber did not establish a prima facie claim for malicious
prosecution. Despite Huber's assertion to the contrary, Engle had probable cause to
initiate and continue prosecuting a lawsuit against him because Engle had a reasonable
ground for suspicion supported by circumstances sufficiently strong in themselves to
warrant a cautious or prudent person in the belief that Huber committed the act of which
he was complaining, i.e., Huber was illegally constructing levees along the Verdigris
River, which threatened to irreparably harm Engle's interest in adjoining land.

Affirmed.