Bd. of Cnty. Comm'rs of Riley Cnty. v. Kilner

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Board of County Commissioners of Riley County, Kansas, Appellee, v. Gary L. Kilner, Appellant.

No. 125,756

Court of Appeals of Kansas

November 9, 2023

NOT DESIGNATED FOR PUBLICATION

Oral argument held September 19, 2023.

Appeal from Riley District Court; JOHN F. BOSCH, judge.

P Bernard Irvine, of Morrison, Frost, Olsen, Irvine &S chartz, LLP, of Manhattan, for appellant.

Craig D. Cox, deputy county counselor, for appellee.

Before BRUNS, P.J., PICKERING, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

PER CURIAM:

Gary L Kilner appeals from a decision of the district court finding him in violation of the Riley County Zoning Regulations and the Riley County Property Maintenance Code. On appeal, he raises several issues relating to the district court's decision. However, he failed to file this appeal in the time prescribed by the Kansas Legislature in K.S.A. 2022 Supp 60-2103(a). Because appellate courts in Kansas have jurisdiction to entertain an appeal in a civil case only if it is taken within the time limitations and in the manner prescribed by the applicable statutes, we have no jurisdiction to consider the issues presented. Thus, we dismiss this appeal.

FACTS

In April 2004, Kilner bought a 21-acre parcel of land located in rural Riley County which was zoned for agricultural use. Shortly thereafter, Kilner applied for a building permit to build a residential building on a small tract of 1.86 acres at the south tip of his property, naming himself as the builder. After Riley County granted the building permit Kilner began construction in 2004. However, Kilner never finished construction of the residence, and he has no current plans to complete the construction. Kilner does not reside in the house or elsewhere on the 21-acre tract.

On April 7, 2017, the Board of Riley County Commissioners (Riley County) filed a petition against Kilner alleging a zoning violation and a property maintenance violation. In response to Riley County's petition, Kilner moved to dismiss for lack of jurisdiction based on his claim that the property is exempt from regulations under the agricultural exception in K.S.A. 19-2921.

From December 18, 2017, through April 15, 2021, the district court allowed the parties to enter into a number of agreements and continuances in an attempt to allow Kilner to comply with the county regulations. Although Kilner made some progress, he failed to bring the property into compliance.

On June 23, 2021, the district court filed an order to appear and show cause requesting a sanction be imposed on Kilner for failure to comply with the agreed orders to resolve the case. In July 2021, the district court held a two-day evidentiary hearing on the order to appear and show cause. At the end of the hearing, the district court requested additional briefing from the parties regarding Kilner's claim of an agricultural exception to the zoning and property maintenance regulations.

On September 16, 2021, the district court orally announced its decision to the parties from the bench and filed a memorandum order on that same day. After examining K.S.A. 19-2921 and applying it to the facts of this case, the district court concluded that Kilner "does not fall under the definition of a family farmer that the legislature was trying to protect from government regulation" because he is not a farmer-owner who intends to live and engage in agricultural purposes on the land. Accordingly, the district court ruled in favor of the Riley County, finding that Kilner was in violation of both the zoning ordinance and the property maintenance regulation. As such, the court ordered that Kilner should bring his property into compliance within 90 days-by December 15, 2021-or be held in indirect civil contempt and serve 90 days in jail.

On April 14, 2022, Riley County filed a motion requesting an order to appear and show cause. At a hearing held on May 11, 2022, Kilner claimed he never received the district court's September 16, 2021 memorandum order, and that he was not aware of the order until April 16, 2022. Based on Kilner's claim that he did not receive the district court's written order, the district court extended Kilner's time to appeal, allowing him to file an appeal within 30 days from the date of the hearing. Nevertheless, Kilner failed to do so.

On June 8, 2022, Kilner instead filed a "Motion to Reconsider Order" in response to the district court's extension of time to appeal. In the motion, Kilner asserted the same arguments that he previously asserted below and asked the court to reconsider its September 16, 2021 ruling.

On July 20, 2022, the district court filed an order of contempt. The court ruled that Kilner had not complied with the district court's September 16, 2021 memorandum order because he had failed to bring his property into compliance with the zoning regulations and maintenance code by the deadline. Rather than impose jail time, the district court ordered a $100 per day fine at the statutory interest rate of 4.25% per K.S.A. 16-204(e)(1) until Kilner brings his property into compliance with the court's order. The court ordered the fine to begin on August 1, 2022.

On August 17, 2022, the district court denied Kilner's motion to reconsider. In denying the motion to reconsider, the district court noted that Kilner asked the court to revisit the issues, but he "has not produced any new evidence nor given the court any new authority that the court has not already considered." On September 15, 2022, Kilner filed his first and only notice of appeal, indicating that he was appealing from "the Court's Judgments entered on July 20, 2022 and August 17, 2022; and all other rulings, and orders on all issues relating and decided therein ...."

ANALYSIS

At the outset, we must determine whether our court has appellate jurisdiction over this appeal. The issues raised by Kilner in this appeal arise directly from the district court's September 16, 2021 order. Although Kilner refers to the district court's July 2022 and August 2022 rulings in his notice of appeal, he does not raise issues from these subsequent posttrial rulings in his appeal. The issues raised by Kilner stem directly from the district court's September 16, 2021 order. Consequently, we must examine whether this court has jurisdiction over issues decided by the district court in its decision filed on September 16 2021.

"The question of whether this court has jurisdiction is a question of law over which we exercise unlimited review. City of Wichita v. Trotter, 316 Kan. 310, 312, 514 P.3d 1050 (2022). The right to appeal is strictly statutory in nature and is not contained in either the Constitution of the United States or the Constitution of Kansas. See In re A.A.-F., 310 Kan. 125, 135, 444 P.3d 938 (2019).

In fact, Article 3, section 3 of the Kansas Constitution provides that the Kansas Supreme Court shall have "such appellate jurisdiction as may be provided by law." Thus, our Supreme Court has held that appellate courts "may exercise jurisdiction only under circumstances allowed by statute" and do not "have discretionary power to entertain appeals from all district court orders." Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 (2010); see also Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016); State v. McGaugh, 56 Kan.App.2d 286, Syl. ¶ 1, 427 P.3d 978 (2018). In addition, "[a]n appellate court . . . has a duty to question jurisdiction on its own initiative." Wiechman, 304 Kan. at 84. When the record discloses a lack of appellate jurisdiction, we are required to dismiss the appeal. 304 Kan. at 85.

On September 16, 2021, the district court announced its decision from the bench and-later that day-filed a memorandum order with the Clerk of the Riley County District Court. Based on our review of the record, we find that the order met the requirements set forth in K.S.A. 2022 Supp. 60-258, and it served as the final judgment of the district court on the claims asserted by Riley County in its petition. Furthermore, the order resolved the issues Kilner brought in his counterclaim.

K.S.A 2022 Supp. 60-2103(a) provides that "the time within which an appeal may be taken shall be 30 days from the entry of the judgment ...." In addition, if Kilner desired to file a motion to alter and amend the judgment-which would have tolled the deadline for appeal-he had 28 days from the date the district court entered its written order of the final judgment. K.S.A. 2022 Supp. 60-259(f). In other words, his deadline to file a motion to alter or amend was October 14, 2021, and his deadline to file a notice of appeal...