Goldman v. Univ. of Kan.

• Decision Date: 18 December 2015
• Docket Number: No. 113,283.,113,283.
• Citation: 365 P.3d 435,52 Kan.App.2d 222
• Parties: Stephen D. GOLDMAN, Appellant, v. UNIVERSITY OF KANSAS, et al., Appellee.
• Court: Kansas Court of Appeals

52 Kan.App.2d 222

365 P.3d 435

Stephen D. GOLDMAN, Appellant,

v.UNIVERSITY OF KANSAS, et al., Appellee.

No. 113,283.

Court of Appeals of Kansas.

Dec. 18, 2015.

Theodore J. Lickteig, of Law Offices of Theodore J. Lickteig, of Lenexa, for appellant.

Sara L. Trower, associate general counsel and special assistant attorney general, for appellee.

Before GREEN, P.J., GARDNER, J., and JOHNSON, S.J.

GARDNER, J.

Stephen D. Goldman, while a fifth-year doctoral student in the School of Pharmacy at the University of Kansas (KU), was accused of scholarly misconduct. KU investigated the matter, held a hearing, found scholarly misconduct, and then sanctioned Goldman by dismissal from the School of Pharmacy. Thereafter, Goldman brought an action in district court seeking judicial review of agency action and then amended his petition by adding a tort claim, a breach of contract claim, and a due process claim. Goldman appeals from the district court's decision resolving the judicial review claims, but we find that decision is not final because Goldman's tort, contract, and due process claims in the same action remain pending in district court. Accordingly, we dismiss the appeal for lack of jurisdiction.

Procedural background

Because of the procedural posture of this case and our conclusion on this appeal, we find it unnecessary to set forth in detail the many facts relevant to the merits of this appeal. Suffice it to say that Goldman, while a fifth-year doctoral student in the School of Pharmacy at KU, was accused of scholarly misconduct. KU investigated, held a hearing, found Goldman had committed scholarly misconduct, and ultimately dismissed him from the School of Pharmacy.

Goldman then filed suit in the district court via a petition alleging only one count—"judicial review of agency action." But the case was stayed pending exhaustion of Goldman's administrative remedies at KU. When those administrative remedies were exhausted and the stay was lifted, Goldman chose to amend his petition by expanding his petition for judicial review from one to four counts and by adding three new counts to his petition. Thus his first amended petition states the following counts: (1) the agency's determination was unsupported by substantial evidence; (2) the agency's action was unreasonable, arbitrary, or capricious; (3) the agency failed to follow the prescribed procedure; (4) the investigative committee was improperly constituted; (5) tortious interference with prospective business relationship; (6) breach of contract; and (7) procedural due process violation under 42 U.S.C. § 1983 (2012).

The amended petition notes the first four of these seek "judicial review of agency action," while the latter three do not. Goldman's tortious interference count alleges that he had the expectancy of a business relationship in the form of post-academic employment with the probability of future economic benefit. His breach of contract count alleges KU breached its implied duty of good faith and fair dealing by terminating his research appointment. And his procedural due process count is against an individual defendant, his supervising professor, who allegedly failed to timely and fully inform Goldman of the allegations against him in advance of the investigating committee hearing.

The district court issued a lengthy memorandum decision resolving only Goldman's first four counts, stating the "matter comes on before the court on Petitioners' petition for judicial review." The decision makes no mention of Goldman's remaining three counts. After its analysis, the court concludes:

"The court affirms the actions of the University and denies petitioner's appeal. This memorandum decision constitutes a journal entry and judgment is entered in accordance with the findings hereinabove made".

This is the decision from which Goldman appeals.

On appeal, Goldman essentially argues that the district court erred because the investigative committee's finding of scholarly misconduct was unreasonable, arbitrary, or capricious; the sanction of dismissal from the School of Pharmacy was not supported by substantial evidence; KU was required to follow the Code of Federal Regulations but failed to do so; and the investigative committee was improperly constituted because one of its members had a conflict of interest.

Our show cause order

After receiving the parties' briefs on the merits of this case, we issued a show cause order informing the parties of our belief that we lack jurisdiction over this appeal because Goldman's tort, contract, and due process claims remain pending in the district court. That order stated in part:

"Under Kansas law, a judgment is final and appealable only if it finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for future or further action by the court. Flores Rentals, L.L.C. v. Flores, 283 Kan. 476, 481–82, 153 P.3d 523 (2007). In this case, the district court's Memorandum Decision did not address Appellant's claims of tortious interference (Count V), breach of contract (Count VI), or due process under 42 U.S.C. 1983 (Count VII).

"Moreover, the record on appeal does not reflect that Appellant ever sought or obtained a certification from the district court that this judgment was final under K.S.A. 60–254(b)."

Consent to jurisdiction is immaterial

Both parties responded that we have jurisdiction. Goldman argues that the KJRA provides its own independent grant of appellate jurisdiction and that judicial economy would be better served by retaining jurisdiction. KU argues only that the district court's decision constitutes a final decision on the "KJRA action," implying that we should consider Goldman's KJRA claims as separate or severed from his other claims.

The parties stated during oral argument that they agreed in district court to go forward only on Goldman's KJRA claims while leaving his other claims for future discovery, producing an informal stay of the unappealed claims. The unusual procedural posture of this appeal is thus a result of counsel's intentional trial strategy.

But the parties' agreement that we have subject matter jurisdiction does not invest us with jurisdiction.

"[P]arties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and a failure to object to the court's jurisdiction does not invest the court with the requisite subject matter jurisdiction. Padron v. Lopez, 289 Kan. 1089, 1106, 220 P.3d 345 (2009)." Bartlett Grain Co. v. Kansas Corporation, 292 Kan. 723, 726, 256 P.3d 867 (2011).

Accordingly, we examine whether some other basis for our jurisdiction exists.

A statutory basis for jurisdiction is necessary

Our court has a duty to determine its own jurisdiction over the appeal.

In re Estate of Butler, 301 Kan. 385, 390, 343 P.3d 85 (2015). If we lack jurisdiction, we have the duty to dismiss this appeal. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106, cert. denied – –– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013). The right to appeal is purely statutory and is not contained in the United States or Kansas Constitutions. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609–10, 244 P.3d 642 (2010).

"Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. See Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P.2d 476 (1976) ; Henderson v. Hassur, 1 Kan.App.2d 103, 105–06, 562 P.2d 108 (1977)." Flores Rentals, v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007).

Appeals from decisions on petitions for judicial review are not sui generis

We begin our analysis by examining the parties' claims that "KJRA actions" are independently appealable, even when the petition contains other claims. Goldman's KJRA claim arises under Chapter 77 and not under Chapter 60. Chapter 77 provides its own statute governing review by a higher court, stating: "Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases." K.S.A. 77–623. This is the sole statute cited by the parties as a basis for our jurisdiction. Goldman and KU essentially contend that a final decision on a petition for judicial review of an agency action is appealable as if it were a separate civil action, even when other claims joined in the same case remain pending in the district court. But neither party shows the court how such an interpretation is either reasonable or supported by caselaw.

We cannot read this statute to mean that appeals from decisions on petitions for judicial review are sui generis—unlike those in other civil cases—so that they can be appealed piecemeal. Instead, the plain language of K.S.A. 77–623 requires us to determine appellate jurisdiction over a decision on a KJRA petition in the same manner that we determine jurisdiction in appeals from civil cases under Chapter 60.

Further, the Kansas Supreme Court has interpreted the statute to mean that we look to Chapter 60 to determine our jurisdiction in KJRA cases. See U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 524, 802 P.2d 516 (1990) ("From the outset we recognize that appellate review of an agency action is ... as in other civil cases. K.S.A. 77–623."); U.S.D. No. 352 v. NEA–Goodland, 246 Kan. 137, 139–40, 785 P.2d 993 (1990) ( "Under K.S.A. 77–623, an appellate court is to review a district court's review of an agency action in the same manner it would review any other decision of a district court in a civil matter.").

This court has done the same. See Yeasin v. Univ. of Kansas, No. 113,098, 2015 WL 5617617, at *6 (Kan.App.2015) (unpublished opinion) ("Parties in an agency action before the district court under the KJRA may appeal the district court's decision to the appellate courts, just as parties do in other civil cases....