Huber v. Engle, 040816 KSCA, 112, 833

Docket Nº:112, 833
Opinion Judge:Buser, J.:
Party Name:Drew Huber, Appellant, v. Harold Engle, Jr., Appellee.
Attorney: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.
Judge Panel:Before Standridge, P.J., Buser and Schroeder, JJ.
Case Date:April 08, 2016
Court:Court of Appeals of Kansas

Drew Huber, Appellant,


Harold Engle, Jr., Appellee.

No. 112, 833

Court of Appeals of Kansas

April 8, 2016


Appeal from Greenwood District Court; Janette L. Satterfield, judge.

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 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.

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 "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 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...

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