Writing to the Kansas Appellate Courts: a Lesson in Appellate Jurisdiction
| Publication year | 2000 |
| Pages | 32 |
| Citation | Vol. 69 No. 04 Pg. 32 |
69 J. Kan. Bar Assn. April, 32 (2000). WRITING TO THE KANSAS APPELLATE COURTS: A LESSON IN APPELLATE JURISDICTION
Vol. 69, April, 2000
Copyright (c) 2000 by the Kansas Bar Association; Autumn Fox
I. INTRODUCTION
Soon after beginning work at the Kansas Court of Appeals, I was surprised to find a number of cases on each docket with jurisdictional defects. With each docket, there were more cases dismissed or affirmed due to such defects. Appeals were being lost due to jurisdictional defects which were, for the most part, avoidable. The jurisdictional defects were sometimes complex, but more often they were as simple as the timeliness of the appeal; the adequacy of the notice of appeal; the adequacy of the record on appeal; and the failure to adequately brief an issue.
Section two of this article briefly explains jurisdiction as it relates to the appellate process. Section three outlines the most common--and uncommon-- jurisdictional defects and ways to avoid them. Finally, section four reminds the appellate lawyer of ethical obligations unique to appellate practice.
If, after reading this article, appellate lawyers are able to avoid these jurisdictional defects, then the appellate courts will be better able to review cases and clients will be better served.
*33 II. Jurisdiction and the appellate process
BLACK'S LAW DICTIONARY defines jurisdiction as the "power" of courts to inquire into facts, apply law, make decisions and declare judgment." [FN3] This broad definition encompasses jurisdiction in the traditional sense of the word as well as the many ways in which jurisdiction will be denied due to procedural error.
The Kansas Court of Appeals' "traditional" jurisdiction is defined by statute. [FN4] All direct appeals from final judgments in criminal cases are taken to the Court except those cases reviewable by law in the district court and where direct appeal to the Supreme Court is required. K.S.A. § 22-3601(a). The Court also has jurisdiction over all appeals from district courts in civil proceedings subject to the above exceptions. K.S.A. § 60-2101(a). Additionally, the Court has jurisdiction to hear appeals from administrative decisions where a statute specifically authorizes appeals directly to the Court of Appeals. K.S.A. § 60-2101(a). And finally, the Court's jurisdiction includes appeals from all 60-1507 proceedings. K.S.A. § 60-2101(a).
Jurisdiction in the procedural sense has been established through the rules of the Court and through case law. These rules, for example, set out how to initiate and docket an appeal, [FN5] how to designate a record on appeal, [FN6] how to file an interlocutory appeal or a motion, [FN7] the content and form of appellate briefs, [FN8] and the rules relating to oral arguments. [FN9] Case law has interpreted these rules and developed new procedural requirements. Appellate practitioner needs to be aware of these rules to avoid losing an appeal due to jurisdictional defects.
III. Jurisdictional defects
Appeals are presented to the Court with a wide variety of jurisdictional defects. These defects range from the simple to the sublime. Among the most common errors are: appealing when a final judgment has not been entered; drafting an inadequate notice of appeal; failing to designate the record on appeal; failing to brief an issue on appeal; and failing to preserve an issue on appeal. Practitioners committing such jurisdictional errors also cover a broad spectrum. They include those in government service; sole practitioners, and those who practice in large law firms. It is clear, therefore, that all practitioners need to know and understand the rules of appellate practice. A judgment is, after all, only as good as the appeal that follows.
A. Final Judgement denied
There is generally little question regarding whether a criminal judgment is final. A criminal judgment requires both a conviction and a sentence, or a suspension of sentence, to be final. [FN10] Sentence is effective when it is pronounced from the bench. [FN11] There is no appellate review of a sentence which falls within the presumptive sentence range for the crime charged, or any sentence resulting from an agreement between the prosecution and the defendant which the court approves on the record. [FN12]
Whether judgment is final in a civil case is somewhat more complex as it is dependent in part upon the nature of the civil case. A final decision in a civil case is one that finally decides and disposes of the entire merits of a case and reserves no further questions or directions for the future or further action of the court. [FN13] In some cases, an appeal from a decision of the district court may be taken as a matter of right, although the order appealed from is interlocutory in nature. [FN14] When there is more than one claim for relief in an action, or when multiple parties are involved, the court can direct entry of final judgment as to one or more but fewer than all of the claims or parties upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment. [FN15]
Judicial review of agency decisions is limited in Kansas. Since 1984, the exclusive remedy for appealing agency action has been the Act for Judicial Review and Enforcement of Agency Actions (KJRA). [FN16] KJRA applies to all state agencies and proceedings unless specifically exempt by statute. [FN17] Before appealing an agency action, parties should make sure that agency action being appealed from is a "final agency action."
*34 The failure to recognize a final judgment or final agency action can result in an appeal being lost before the Court ever reaches the merits of the case. In Topeka Mall Co., L.L.P. v. Commissioners of Shawnee County, [FN18] the subject property was valued at more than $46 million. The taxpayer had been litigating the value of the property for more than five years. [FN19] When the Board of Tax Appeals (BOTA) issued its final valuation, the taxpayer appealed to the district court. [FN20] The district court remanded the case to BOTA with directions to value the property in accordance with the court's order. [FN21]
The taxpayer appealed the district court's order to the Court of Appeals. After more than five years of litigation and countless dollars in legal fees, the Court of Appeals dismissed the appeal as being premature after reiterating the longstanding rule that judicial remand orders for further findings by an administrative agency are not appealable in the absence of exceptional circumstances. [FN22]
While the Topeka Mall case largely involved monetary issues, failing to recognize a final, appealable order can also have a more personal effect. In Harriford v. Daniels, [FN23] the plaintiff filed suit against her doctor alleging medical malpractice. [FN24] The defendant filed a Motion in Limine seeking to exclude evidence of other, similar lawsuits against him. [FN25] The trial court granted the motion, and the plaintiff requested a voluntary dismissal with prejudice. [FN26]
The court accepted her voluntary dismissal subject to certain conditions, including the condition that the rulings of the court in the first case would apply to the second. [FN27] Three days following the voluntary dismissal, the plaintiff refiled her case. [FN28] In spite of the court's conditions for refiling, she again filed a motion requesting the admission of similar occurrence evidence. The trial court again denied the motion. The case was tried to a jury, and a verdict was returned in favor of the defendant. [FN29] The plaintiff appealed to the Court of Appeals.
On appeal, the plaintiff argued the trial court erred in refusing to admit evidence of alleged similar occurrences. [FN30] Plaintiff's arguments...
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