                IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 110,656

                                      BYRON T. WIECHMAN,
                                           Appellee,

                                                   v.

                                       MARK HUDDLESTON,
                                          Appellant.


                                 SYLLABUS BY THE COURT


1.
        The right to appeal in a civil case is entirely statutory and not a right guaranteed by
the United States Constitution or the Kansas Constitution. Kansas appellate courts have
jurisdiction to entertain an appeal in a civil case only if that appeal is taken within the
time limitations and in the manner prescribed by the applicable statutes.


2.
        An appellate court has no authority to create an exception to statutory
jurisdictional requirements to allow an appeal from an order setting aside a final
judgment in a civil case. Brown v. Fitzpatrick, 224 Kan. 636, 585 P.2d 987 (1978), is
overruled to the extent it created a common-law "jurisdictional exception" permitting
appeals in civil cases not otherwise allowed by statute.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed October 3, 2014.
Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed April 15, 2016.
Judgment of the Court of Appeals dismissing the appeal is affirmed.




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        Stanford J. Smith, Jr., of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the
cause, and Teresa L. Adams, of the same firm, was with him on the briefs for appellant.


        Ron D. Beal, of Lenexa, argued the cause, and Robert D. Wiechman, Jr., of Wichita, was with
him on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: This is an interlocutory appeal challenging a district court's decision to
set aside a dismissal order in a personal injury lawsuit more than 4 years after that order
was entered and the case was closed. The threshold question is whether a common-law
exception to our statutory jurisdictional requirements remains valid, giving us the ability
to decide this question. See Brown v. Fitzpatrick, 224 Kan. 636, 585 P.2d 987 (1978).
The Court of Appeals dismissed the case for lack of jurisdiction, determining Brown was
no longer viable in light of more recent caselaw from this court. Wiechman v.
Huddleston, No. 110,656, 2014 WL 4996205, at *5 (Kan. App. 2014) (unpublished
opinion).


        We agree with the panel and overrule Brown to the extent it endorsed a judicially
created appeal right in a civil case outside of those created by statute. See Board of
Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011)
(holding in a civil case that appellate courts have no authority to fashion equitable
exceptions to statutory limitations on appellate jurisdiction). This appeal must be
dismissed because it was not brought in accordance with the statute governing
interlocutory appeals. See K.S.A. 2015 Supp. 60-2102(c); see also Supreme Court Rule
4.01 (2015 Kan. Ct. R. Annot. 29).




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                        FACTUAL AND PROCEDURAL BACKGROUND


       This litigation began in September 2007, when Byron Wiechman sued Mark
Huddleston for negligence after sustaining injuries in a September 2005 car accident.
Huddleston's insurer paid Wiechman's insurer $7,135.15 for reimbursement of Personal
Injury Protection (PIP) benefits. In March 2008, Huddleston's insurer, through its third
party administrator, Claims Professionals Inc., sent a letter stating "today wherein we
agreed to extend out insured's policy limit of $25,000 to you on behalf of your client."
The letter also indicated a release for all claims against Huddleston was enclosed, and
"[u]pon receipt of the properly executed release, we will issue payment in the amount of
$25,000 and consider this matter resolved."


       In August 2008, Wiechman's attorney accepted the $25,000 offer and returned the
completed release of claims form. In September, Wiechman's attorney notified the district
court the case had settled. Nothing additional occurred in the case file until the court
dismissed the litigation for lack of prosecution in December 2008.


       More than 4 years later, Wiechman filed a motion to set aside the dismissal order.
He alleged that although he had accepted the settlement offer, he never received payment.
He also filed a separate contract lawsuit alleging breach of the settlement agreement.
These disputes were not consolidated and have been on separate tracks through the
judicial system.


       On the motion to reinstate the original negligence action, the parties disputed
whether the district court had jurisdiction to set aside the 2008 dismissal order. K.S.A.
2015 Supp. 60-260(b), which is the applicable statute, gives district courts discretion to
relieve a party from a final judgment for the following reasons:


                                              3
               "(1) Mistake, inadvertence, surprise or excusable neglect;
               "(2) newly discovered evidence that, with reasonable diligence, could not have
       been discovered in time to move for a new trial under subsection (b) of K.S.A. 60-259,
       and amendments thereto;
               "(3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or
       misconduct by an opposing party;
               "(4) the judgment is void;
               "(5) the judgment has been satisfied, released or discharged; it is based on an
       earlier judgment that has been reversed or vacated; or applying it prospectively is no
       longer equitable; or
               "(6) any other reason that justifies relief." K.S.A. 2015 Supp. 60-260(b).


       Different time limitations apply depending on the reason invoked. A motion under
subsection (b) must be made within a reasonable time, but for reasons under paragraphs
(b)(1), (2), and (3) a movant must bring the motion no more than 1 year after the entry of
the judgment or order or the date of the proceeding. See K.S.A. 2015 Supp. 60-260(c).


       At the motion hearing, Huddleston argued Wiechman's claim fit within paragraph
(b)(1) or (3), so he asserted the motion was untimely because it was not filed within 1
year of dismissal. But Wiechman argued the motion was governed by paragraph (b)(6),
which was not subject to the 1-year limitations period. When asked by the court why the
effort to reopen the lawsuit was not filed sooner, counsel acknowledged: "I probably
should have filed it earlier but, you know, I thought we could get something worked out."


       At the conclusion of the hearing, the district court granted Wiechman's motion to
set aside the dismissal. But in doing so, it did not address K.S.A. 2015 Supp. 60-260 or
whether the 4-year delay in bringing the motion was reasonable. Instead, the court
focused on what it saw as the insurer's unfairness in not paying the settlement.



                                                    4
       Later, at a hearing on a motion to reconsider, the district court reaffirmed its
decision to set aside the 4-year-old dismissal order. Ruling from the bench, the district
court suggested it was unnecessary to analyze the motion under the requirements of
K.S.A. 2015 Supp. 60-260(b) because the dismissal order was administrative in nature,
apparently because it was based on a lack of prosecution. The district court held
Wiechman had established "good cause" for setting aside the dismissal because he
reasonably relied on the insurer's documents and phone conversations when his attorney
told the court the case had settled. The district court again did not discuss whether the 4-
year delay was reasonable.


       Huddleston filed this interlocutory appeal, arguing the district court lacked
jurisdiction to set aside the dismissal order because Wiechman's motion was untimely
under K.S.A. 2015 Supp. 60-260(c). Huddleston did not seek certification for his
interlocutory appeal under K.S.A. 2015 Supp. 60-2102(c) and Supreme Court Rule 4.01
(2015 Kan. Ct. R. Annot. 29). Instead, he argued a common-law jurisdictional exception
permitted an appeal from an order setting aside a final judgment, citing Brown.


       In dismissing the appeal for lack of jurisdiction, the Court of Appeals
acknowledged the jurisdictional exception recognized in Brown would arguably apply but
questioned whether Brown was still good law. Wiechman, 2014 WL 4996205, at *4.
Citing our reasoning in Park City, the panel held that judicially created exceptions
conferring appellate jurisdiction absent statutory authority were no longer valid.
Wiechman, 2014 WL 4996205, at *5.


       Huddleston petitioned for this court's review, which was granted. See K.S.A. 20-
3018(b). Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals
decisions).


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                                         MOOTNESS


       At the outset, we must consider a suggestion made for the first time during oral
argument by Wiechman's counsel that this appeal has become moot because he prevailed
in the separate breach of contract lawsuit after the district court reinstated the negligence
action. In essence, Wiechman's counsel represented that since his client's breach of
contract claim had been resolved, his client no longer had any interest in this appeal's
outcome, although it was additionally noted that issues remained outstanding over
prejudgment interest and whether a fraud claim could be asserted against Huddleston's
insurer. In rebuttal, Huddleston's attorney disagreed the appeal was moot and noted
Wiechman had not dismissed the underlying negligence action that launched this
interlocutory appeal. We agree with Huddleston.


       An appeal will not be dismissed for mootness unless it is clearly and convincingly
shown the actual controversy has ended, the only judgment that could be entered would
be ineffectual for any purpose, and it would not impact any of the parties' rights.
McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); State ex rel.
Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007). The record on
appeal in this case provides no such showing.


       In fact, just a week prior to oral arguments, Wiechman filed pleadings urging us to
affirm the Court of Appeals ruling. In addition, the representations made at oral
arguments by Wiechman's counsel are inconsistent with the showing required for us to
determine the case is moot. Accordingly, we hold the case is not moot.




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                          THE LACK OF APPELLATE JURISDICTION


       Huddleston argues the panel erred when it dismissed this appeal for lack of
jurisdiction. He admits K.S.A. 2015 Supp. 60-2012(a) generally governs appeals to the
Court of Appeals as a matter of right and further concedes his appeal is not authorized by
that statute because the order in controversy is not a final decision. See Kaelter v. Sokol,
301 Kan. 247, 249-50, 340 P.3d 1210 (2015) ("A 'final decision' generally disposes of the
entire merits of a case and leaves no further questions or possibilities for future directions
or actions by the lower court."). Instead, Huddleston argues this appeal is authorized by
the Brown jurisdictional exception, and the panel erred when it overruled Brown. In
contrast, Wiechman accepts the panel's view and argues Brown is no longer good law in
light of more recent caselaw.


Standard of Review


       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 court must dismiss the appeal. Kaelter, 301 Kan. 247, Syl. ¶ 1. But we
also must consider whether this court's 1978 Brown decision has lost its precedential
value, so we need to consider the doctrine of stare decisis because this court generally
follows an established point of law in subsequent cases "unless clearly convinced it was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent." Miller v. Johnson, 295 Kan.
636, 653, 289 P.3d 1098 (2012).




                                              7
The Brown exception is no longer valid.


       Huddleston agrees there is no appellate jurisdiction without application of Brown,
so it is necessary to consider that case's rationale and holding. The litigation began when
the plaintiff sued K.N. Fitzgerald for payment on a promissory note, and the claim was
dismissed for lack of prosecution. More than 2 years after the dismissal, the claim was
reinstated under a prior version of K.S.A. 60-260(b)(6).


       Fitzgerald filed an interlocutory appeal challenging the reinstatement, and Brown
opposed the appeal, arguing the appellate court lacked jurisdiction because the order
reinstating the case was not a final order under K.S.A. 60-2102(a)(4). The Brown court
held there was a "jurisdictional exception" applying to orders under K.S.A. 60-260(b)
when "an order granting relief under authority of K.S.A. 60-260 is challenged on
jurisdictional grounds." 224 Kan. at 639.


       The Brown court principally relied on federal caselaw adopting an identical
exception for orders entered under the analogous federal rule, Fed. R. Civ. Proc. 60(b).
The court reasoned that since K.S.A. 60-260(b) was fashioned after the federal rule: "in
the interest of consistency with the federal case law this court feels the 'jurisdictional
exception' should be extended in Kansas to orders under K.S.A. 60-260(b)." 224 Kan. at
639. The court noted Kansas recognized a similar exception for orders granting a new
trial under K.S.A. 60-259(a) based on federal caselaw interpreting Fed R. Civ. Proc.
59(d). The court then observed that the exception had been criticized as unwise because it
leads to many interlocutory appeals, citing 11 Wright & Miller, Federal Practice and
Procedure: Civil § 2871, p. 260 (1969). But in the end, the court concluded consistency
with the federal caselaw trumped those concerns. 224 Kan. at 638-39.




                                               8
       In Huddleston's appeal, the panel recognized Brown's application but held Brown
was no longer valid given our more recent Park City decision. Wiechman, 2014 WL
4996205, at *4-5. In Park City, the district court granted a municipality additional time to
file a motion seeking postjudgment relief from a summary judgment order—even though
the district court lacked statutory authority to grant that extension. The delay rendered
Park City's notice of appeal untimely under the applicable statute. Park City attempted to
avoid a jurisdictional bar by invoking the doctrine of unique circumstances, which was
another judicially created exception permitting an untimely appeal when the appellant
reasonably relied on some judicial action that purportedly extended the time period for
bringing the appeal. 293 Kan. at 108-09.


       The Park City court recognized that Kansas courts had been following the United
States Supreme Court's lead when it adopted the unique circumstances doctrine, but this
court further noted that the United States Supreme Court had overruled that doctrine after
concluding Congress had exercised its constitutional authority to limit the appellate
courts' jurisdiction and that appellate courts could not create equitable exceptions to those
legitimate statutory requirements. 293 Kan. at 117 (citing Bowles v. Russell, 551 U.S.
205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 [2007]).


       The Park City court followed suit and overruled the doctrine in Kansas based on
the same reasoning, stating:


               "Consequently, we reject Park City's argument that the unique circumstances
       doctrine saves its appeal. As stated in Bowles, 'Because this Court has no authority to
       create equitable exceptions to jurisdictional requirements, use of the "unique
       circumstances" doctrine is illegitimate.'" 293 Kan. at 120 (quoting Bowles, 551 U.S. at
       214).




                                                    9
       The rationale from Park City answers the jurisdictional question raised by
Huddleston. We have often reiterated as a "longstanding rule" that appellate jurisdiction
in civil cases is defined by statute, and the right to appeal is neither vested nor a
constitutional right. 293 Kan. at 111 (collecting cases); see also Kaelter, 301 Kan. at 249
("'Kansas appellate courts may exercise jurisdiction only under circumstances allowed by
statute.'"); Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009) (same). But the
Brown exception is inconsistent with that principle because the appeal statute, K.S.A.
2014 Supp. 60-2102, does not grant Huddleston a right to appeal the district court's order
reinstating Wiechman's claim. And this court's rationale in Park City is easily applied to
the Brown jurisdictional exception at issue here. As the panel held:


               "The jurisdiction exception for nonfinal orders found in Brown is directly
       analogous to the 'unique circumstances' exception reexamined in Park City. Both are
       court-made equitable exceptions to the jurisdictional requirements created by the
       legislature. Because the jurisdiction exception created in Brown circumvents the
       applicable statute—here, K.S.A. 2013 Supp. 60-2102—it is also illegitimate under the
       rationale of Park City." Wiechman, 2014 WL 4996205, at *5.


       In addition, we note that since its 1978 adoption, the Brown exception has been
rarely invoked. We are aware of only two subsequent cases applying the exception to
establish appellate jurisdiction. See Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, 626
P.2d 1240 (1981) (order to set aside dismissal for lack of prosecution appealable under
the "jurisdictional exception"); In re Marriage of Ariaz, No. 105,224, 2012 WL 98490
(Kan. App. 2012) (unpublished opinion) (applying "jurisdictional exception" to allow
appeal from K.S.A. 60-260 order challenging district court's jurisdiction to enter it).
Based on this, overruling Brown has limited impact on the court's caselaw.


       We note further that the exception's wisdom continues to be questioned by legal
commentators and some courts. See 11 Wright and Miller, Federal Practice and
                                                  10
Procedure: Civil 3d § 2871, p. 591 (2012) (characterizing it as an "unwise doctrine, since
it multiplies interlocutory appeals and requires the appellate courts to pass on the claim of
lack of power"). This criticism led the New Mexico Court of Appeals to decline adopting
the exception in Baca v. Atchison, Topeka & Santa Fe Ry., 121 N.M. 734, 918 P.2d 13
(1996) (adopting the exception would "create an anomaly under New Mexico law"). On
the other hand, the federal courts continue to apply this exception, which provides some
authority for maintaining it in Kansas. See Asset Acceptance, LLC v. Moberly, 241
S.W.3d 329 (Ky. 2007) (adopting the jurisdictional exception because the federal practice
"remains viable" after 120 years); Baca, 121 N.M. at 736 (noting most federal courts of
appeals have held there is a right to appeal from a trial court order setting aside a
judgment, usually pursuant to Fed. R. Civ. Proc. 59 or 60).


       In our view, Brown focuses the analysis on the wrong question by allowing
consistency with federal caselaw to trump a Kansas statute. If an appellate court lacks
authority to adopt a jurisdictional exception, the wisdom of that exception is
inconsequential. We conclude the best path is to abandon Brown and adhere to our
jurisprudence that limits appellate jurisdiction in civil cases to that provided by statute.


       Finally, one clarification to our holding in Park City is required because that case
dealt with a civil proceeding challenging a land annexation order. Its holding that the
right to appeal is entirely statutory was based exclusively on civil cases that had adopted
that same principle. See Park City, 293 Kan. at 111 (citing Flores Rentals v. Flores, 283
Kan. 476, 480-81, 153 P.3d 523 [2007]; Bruch v. Kansas Dept. of Revenue, 282 Kan.
764, 773-74, 148 P.3d 538 [2006]; Jones v. Continental Can Co., 260 Kan. 547, 550, 920
P.2d 939 [1996]; Little Balkans Foundation, Inc. v. Kansas Racing Comm’n, 247 Kan.
180, 188, 795 P.2d 368 [1990]; Tobin Constr. Co. v. Kemp, 239 Kan. 430, 437, 721 P.2d
278 [1986]). Accordingly, Park City's application should be viewed as limited to appeals
in civil cases.
                                              11
       We affirm the panel and dismiss Huddleston's appeal for lack of jurisdiction.


       STEGALL, J., not participating.
       AMY L. HARTH, District Judge, assigned.1




1
 REPORTER'S NOTE: District Judge Harth was appointed to hear case No. 110,656 vice
Justice Stegall under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution.


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