Whitaker v. Adams

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NOT DESIGNATED FOR PUBLICATION

No. 112,409

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARLENE WHITAKER and MARIE GRIMES,
Appellants,

v.

DWIGHT ADAMS, MARJORIE HEMPHILL, IVAN ADAMS, INC., IVAN ADAMS, Individually
and as Executor of the ESTATE OF MELVA ADAMS, Deceased,
Appellees.


MEMORANDUM OPINION

Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed October 23,
2015. Appeal dismissed.

Jack W. Schultz, of Topeka, for appellants.

Candace R. Lattin, of Pratt, for appellees Dwight Adams and Marjorie Hemphill.

Thomas V. Black and John V. Black, of Black's Law Office, P.A., of Pratt, for appellees Ivan
Adams, Inc., and Ivan Adams individually and as executor of the Estate of Melva Adams.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: A party in a civil case may appeal from any final decision as a
matter of right. K.S.A. 2014 Supp. 60-2102(a)(4). A final decision is one that "finally
decides and disposes of the entire merits of the controversy and reserves no further
questions or directions for the future or further action of the court." Investcorp v. Simpson
Investment Co., 277 Kan. 445, Syl. ¶ 3, 85 P.3d 1140 (2003). Because the district court's
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decision in this case did not finally dispose of the entire controversy, in that
counterclaims remain unresolved, we must dismiss this action for lack of jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

Because we are dismissing this case on jurisdictional grounds and remanding it for
further proceedings, the underlying facts are of little import at this time. They will be
fully developed should this case return to this court after all issues have been resolved in
the district court. Suffice it to say that this case arises out of a dispute between four
siblings. Two of the four, Marlene Whitaker and Marie Grimes, believe that the other
two, Dwight Adams and Marjorie Hemphill, took advantage of their aging father, Ivan
Adams, usurped power over the family's farming business, withdrew money from their
father's bank account, and isolated their father from the family. When attempts to
amicably resolve these issues failed, Whitaker and Grimes filed suit against their siblings,
their father, and the family business. Ultimately, the district court determined that
Whitaker and Grimes failed to state any claim for which relief could be granted and
dismissed the petition. They appeal. But in conjunction with his answer to the petition,
Dwight Adams filed a counterclaim for damages and requested a restraining order to
keep Whitaker from interfering with Ivan. Despite the dismissal of the petition, the
district court noted that three issues remained: an outstanding motion for attorney fees
and Adams' two counterclaims against Whitaker. But because Ivan had recently passed
away, the district court instructed the parties to consider naming a substitute party to
stand in his place and set a case management conference to address these remaining
issues.

In light of the outstanding counterclaims and motion, this court issued a show
cause order and required the parties explain why jurisdiction before this court is proper.
Whitaker responded, arguing that the district court considered its decision final and that it
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would be unjust to prevent the appeal due to Adams' failure to pursue the outstanding
claims.

ANALYSIS

An appellate court exercises unlimited review over jurisdictional issues and has a
duty to question jurisdiction on its own initiative. When the record discloses a lack of
jurisdiction, the appellate court must dismiss the appeal. In re T.S.W., 294 Kan. 423, 432,
276 P.3d 133 (2012). Such is the case here.

Kansas courts may exercise jurisdiction only under circumstances allowed by
statute. Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007). As is well-
settled law in Kansas, a party in a civil case may appeal from any final decision as a
matter of right. K.S.A. 2014 Supp. 60-2102(a)(4). A final decision is one that "finally
decides and disposes of the entire merits of the controversy and reserves no further
questions or directions for the future or further action of the court." Investcorp, 277 Kan.
445, Syl. ¶ 3.

As previously mentioned, the district court's decision disposed of Whitaker's
claims against Hemphill and Adams but noted that Adams' counterclaims and an
outstanding motion for attorney fees remained. As such, and in light of Ivan's death, the
district court instructed the parties to consider whether those unresolved issues would go
forward with an appropriate substitute party and set a case management conference for a
future date. These outstanding issues leave open the possibility of "further questions or
directions for the future or further action of the court," thereby preventing the
memorandum opinion from constituting a final, appealable order. Investcorp, 277 Kan.
445, Syl. ¶ 3.

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The statute that Whitaker relies on in crafting his argument that the district court's
dismissal was a final appealable order, K.S.A. 2014 Supp. 60-258, provides generally for
the entry of judgments. But that statute also provides that the entry of such judgments is
subject to another statutory provision, K.S.A. 2014 Supp. 60-254(b). See K.S.A. 2014
Supp. 60-258. The latter statute clearly provides:

"When an action presents more than one claim for relief, whether as a claim,
counterclaim, crossclaim or third-party claim, or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the entry
of a judgment adjudicating all the claims and all the parties' rights and liabilities."
(Emphasis added.) K.S.A. 2014 Supp. 60-254(b).

To put it another way, a decision that disposes of some but not all of the claims in
a case is insufficient to end the cause of action, and the case continues between the
parties until every claim is finally decided. K.S.A. 2014 Supp. 60-254(b). It stands to
reason, then, that a decision that fails to adjudicate all claims and therefore fails to end
the cause of action cannot also be final.

All this is not to say that a party in a civil suit is absolutely barred from appealing
unless every issue is finally adjudicated. In fact, K.S.A. 2014 Supp. 60-2102(c) expressly
provides:

"When a district judge . . . in making in a civil action an order not otherwise appealable
under this section, is of the opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation,
the judge shall so state in writing in such order. The court of appeals may thereupon, in
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its discretion, permit an appeal to be taken from such order, if application is made to it
within 14 days after the entry of the order under such terms and conditions as the
supreme court fixes by rule." (Emphasis added.)

A review of the record indicates that the district court never issued such a finding
in the memorandum opinion. Moreover, Whitaker offers no argument that this
interlocutory process applies. Instead, Whitaker simply insists, without reference to
caselaw, that Adams' failure to pursue the outstanding claims constitutes a waiver of
those claims and that holding otherwise creates an unjust result.

But Adams' failure to pursue the counterclaims does not change the fact that the
order from which Whitaker appealed was not a final one. Without either authorization to
pursue an interlocutory appeal or some other order indicating that the district court has
finally disposed of the outstanding issues (either for failure to prosecute or on the merits),
this court is without jurisdiction to consider the instant appeal. As such, this appeal must
be dismissed.

Appeal dismissed.