J.P. v. G.S. ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,893
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
J.P. III,
Appellant,
v.
G.S.,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ELIZABETH HENRY, judge pro tem. Submitted without oral
argument. Opinion filed October 25, 2024. Affirmed in part and dismissed in part.
J.P. III, appellant pro se.
Anita Settle Kemp, of Wichita, for appellee.
Before GARDNER, P.J., GREEN and HILL, JJ.
PER CURIAM: J.P. appeals the district court's denial of his petition for a protection
from stalking (PFS) order against a nearby property owner, G.S. J.P. broadly claims that
the district court violated his right to a fair trial, wrongly denied his PFS order, and
erroneously imposed sanctions against him. Having reviewed the record, we reach the
merits of the ruling on J.P.'s petition for a PFS order but dismiss all other arguments as
unpreserved or for lack for jurisdiction.
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Factual and Procedural Background
G.S. and J.P. own neighboring properties in Wichita. G.S. owns and manages
rental properties in their neighborhood, and J.P. owns property and resides there. Given
this proximity and other factors, J.P. and G.S. have had many encounters over the last
several years and have reported several of them to the police. These interactions and
reporting eventually spurred litigation as both men petitioned the district court for PFS
orders against each other in separate cases.
G.S. filed first and got PFS orders against J.P. in 2020. Both parties' briefs rely on
the facts surrounding G.S.'s initial PFS filings. This court reviewed one of G.S.'s previous
PFS cases in G.S. v. J.P., No. 124,545, 2023 WL 2194550 (Kan. App. 2023)
(unpublished opinion). We refer the reader to that opinion for a summary of the early
litigation between J.P. and G.S.
During ongoing litigation in that case, J.P filed a PFS petition against G.S.,
requesting ex parte temporary and final orders in September 2020 to restrain G.S. from:
• " abusing, molesting or interfering with [J.P.'s] privacy or rights";
• "following, harassing, telephoning, contacting or otherwise communicating with
[J.P.]";
• "committing or attempting to commit a sexual assault upon [J.P.]";
• "following, harassing, telephoning, contacting, recruiting, harboring, transporting,
or committing or attempting to commit human trafficking upon [J.P.]";
• "entering or coming around [J.P.'s] residence or area"; and
• committing "other" acts.
On October 17, 2022, J.P. moved to modify his initial petition and for relief from
an order in a separate case which extended G.S.'s PFS order to preclude J.P from taking
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pictures or videos of G.S. The district court denied the requests related to G.S.'s PFS
order against J.P. but allowed J.P. to "present whatever evidence" he wanted to support
his claim. In support of his petition, J.P. later described three incidents, occurring on
September 9, 2021, and April 9 and 10, 2022. The district court granted J.P. a temporary
PFS order in September 2022 and set the matter for a later hearing. The district court
added that J.P. had a history of raising irrelevant claims regarding previous PFS orders
obtained by G.S. in separate cases, and it ordered J.P. not to relitigate those rulings.
J.P. testified at the October 18, 2022 hearing and presented testimony from seven
other witnesses. These witnesses included:
• G.S.;
• Officers Charles R. Kimple, Daniel Harty, and Brent Johnson who had responded
to or investigated reports from G.S. and J.P,;
• Detective Jordan Siemiller, assigned to investigate a report of forgery from J.P.,
alleging that G.S. forged a statement and signature by a third-party victim,
Beauregard Daniel, to support his PFS claims;
• Brian Cavin, an ex-neighbor to J.P., who J.P. accused of being a part of a
conspiracy with G.S. to wrongly obtain a PFS order against J.P. to harass him; and
• Roberta Hein, one of G.S.'s past tenants.
J.P. also admitted several exhibits: a picture that he took of G.S. showing G.S.
using his phone to take a picture of J.P.; and two recordings of emergency calls G.S. had
made to police on April 9 and 10, 2022. J.P. also unsuccessfully tried to admit comments
that the district court had allegedly made during ex parte communications in a separate
case in 2020.
G.S. testified in his defense and called three witnesses, Kimple, Kyle Gallegos,
and Rick Iowa. G.S. also admitted and published two videos related to the April 10
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incident, which he also described in his testimony. J.P.'s cross-examination of G.S.
suggested that G.S. prolonged that interaction by failing to drive away from the incident
as quickly and efficiently as possible.
The district court ultimately found that J.P. presented no credible evidence to
support his petition for a PFS order. It explained that in some cases, it grants protection
orders to both parties to help ensure that the parties might obey the orders. But the district
court found this type of ruling inappropriate under the circumstances. It found that J.P.
simply "confabulated [a] huge conspiracy" that G.S. controlled other people and their
conduct toward him. And J.P. provided no basis for his allegation that G.S. was a threat
to him; he had denied on "numerous occasions" that he ever feared G.S.
J.P. timely appeals the district court's order denying his petition for PFS.
Analysis
J.P. raises several claims on appeal. Liberally construing and highly summarizing
those claims, J.P. asserts that the district court: (1) violated his right to a fair trial; (2)
abused its discretion or simply erred in denying his petition; and (3) erred in granting
G.S.'s motion for sanctions. We address this latter claim first.
Did the District Court Err in Granting G.S.'s Motions?
J.P. argues that the district court erred by granting G.S.'s motion for sanctions or
attorney fees. G.S.'s sanctions motion argued that J.P. had filed his petition to harass him
and cause unnecessary delays. He attached an affidavit from Kemp and a description of
her work in defending this case. Based on Kemp's accounting, G.S. requested an attorney
fees award of $5,000. After a hearing, the district court awarded G.S. attorney fees of
$3,000.
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But before we can reach the merits of this claim, we must first ask whether we
have jurisdiction to do so. The right to appeal is statutory, and appellate jurisdiction exists
only if a party files an appeal in the manner prescribed by Kansas statutes. Wiechman v.
Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). This court has a duty to question
the existence of jurisdiction on its own initiative. If the record shows that jurisdiction
does not exist, we must dismiss the appeal. 304 Kan. at 84-85.
In civil cases, our statute requires a notice of appeal to designate the judgment or
part of it appealed from: "The notice of appeal shall specify the parties taking the appeal;
shall designate the judgment or part thereof appealed from, and shall name the appellate
court to which the appeal is taken." K.S.A. 2023 Supp. 60-2103(b). See Associated
Wholesale Grocers, Inc. v. Americold Corp., 293 Kan. 633, 637-38, 270 P.3d 1074(2011).
J.P. filed his notice of appeal on October 28, 2022. It references only the district
court's order denying J.P's petition for a PFS order against G.S. It does not refer to the
district court's order imposing sanctions in favor of G.S. Because our jurisdiction is
limited to issues arising from the ruling identified in the notice of appeal, and the notice
of appeal does not include the sanctions order, we must dismiss J.P.'s claim challenging
the sanctions order. See State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004).
That same rationale means we cannot address any other orders not stated in the
notice of appeal. So we lack jurisdiction to address J.P.'s arguments that the district court
erred by previously granting G.S. a PFS order against J.P.
An independent reason compels that same conclusion as to the sanctions order.
This court has jurisdiction to consider only rulings from which we have a timely notice of
appeal. Our appellate courts thus cannot consider judgments made after the notice of
appeal is filed. See Ponds v. State, 56 Kan. App. 2d 743, 752-54, 437 P.3d 85 (2019). J.P.
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filed his notice of appeal on October 28, 2022, but the district court did not enter its
decision on G.S.'s motion for sanctions until November 21, 2022. Yet J.P. did not file a
new or amended notice of appeal after the sanctions ruling, so we lack jurisdiction over
his arguments challenging the district court's sanctions order.
We thus do not reach J.P.'s arguments that the district court erred by granting
G.S.'s motion for sanctions. See In re Estate of Lentz, 312 Kan. 490, 504, 476 P.3d 1151(2020) (court that dismisses for lack of jurisdiction should not opine on merits). Nor do
we reach any other arguments not included in the notice of appeal, including J.P's
argument that the district court erred by granting G.S. a PFS order against J.P.
Did the District Court Violate J.P.'s Right to a Fair Trial?
We next address J.P.'s various claims that he did not receive a fair trial because
errors precluded him from presenting his case at the hearing on his petition. But J.P.
raises this claim for the first time on appeal. Issues not raised before the district court
cannot be raised on appeal. In re Adoption of Baby Girl G., 311 Kan. 798, 801, 466 P.3d
1207 (2020). The district court was in the best position to rectify such errors, had J.P.
brought them to its attention.
There are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal. In re Estate of Broderick, 286 Kan. 1071, 1082, 191
P.3d 284 (2008). But J.P. does not argue that any of these exceptions apply or explain
why he did not make this argument in the district court, as required under Supreme Court
Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36). In State v. Godfrey, 301 Kan. 1041, 1044,
350 P.3d 1068 (2015), and State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014),
our Supreme Court warned that Rule 6.02(a)(5) would be strictly enforced, that litigants
who disregard this rule would risk a ruling that the issue is improperly briefed, and that
the issue would be deemed waived or abandoned. See State v. Daniel, 307 Kan. 428, 430,
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410 P.3d 877 (2018). We note that even if J.P. had argued for our review under an
exception, we are under no obligation to review an unpreserved claim. State v. Rhoiney,
314 Kan. 497, 500, 501 P.3d 368 (2021). We thus find J.P has abandoned or waived his
claims of an unfair trial.
Did the District Court Abuse Its Discretion in Denying J.P.'s Petition?
We next address the merits of J.P.'s claim that the district court erred by denying
his petition for a PFS order against G.S. The Protection from Stalking Act, K.S.A. 2023
Supp. 60-31a01 et seq., requires a plaintiff to prove his or her allegation of stalking by a
preponderance of the evidence. K.S.A. 2023 Supp. 60-31a05(a). "Stalking" and the
related terms "harassment" and "course of conduct" are defined in K.S.A. 2023 Supp. 60-
31a02(d). When considered together, these definitions provide that a valid stalking claim
requires proof of:
• at least two separate acts;
• directed at a specific person;
• intentionally done;
• showing a continuity of purpose that would cause a reasonable person to suffer
substantial emotional distress;
• placing the person in reasonable fear for his or her safety;
• through conduct that seriously alarmed, annoyed, tormented, or terrorized the
person; and
• that served no legitimate purpose and was not constitutionally protected. C.M. v.
McKee, 54 Kan. App. 2d 318, 322, 398 P.3d 228 (2017).
Our courts construe the Act liberally to protect victims of stalking and to facilitate
access to judicial protection for those victims, whether they are represented by counsel or
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are pro se, as is J.P. K.S.A. 2023 Supp. 60-31a01(b); see also Wentland v. Uhlarik, 37
Kan. App. 2d 734, 736, 159 P.3d 1035 (2007) (stalking act construed liberally to protect
victims).
J.P. argues that this court's review of the district court's decision is unlimited. But
by finding that J.P. failed to sustain his burden of proof, the district court made a negative
finding. We thus use the following standard:
"'The effect of a negative finding by a trial court is that the party upon whom the burden
of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of
undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice,
the finding of the trial judge cannot be disturbed.' Cresto v. Cresto, 302 Kan. 820, Syl.
¶ 7, 358 P.3d 831 (2015).
"We do not reweigh the evidence or make our own credibility determinations,
and we generally view the evidence in the light most favorable to the party who prevailed
in the district court.' Kerry G. v. Stacy C., 53 Kan. App. 2d 218, 221-22, 386 P.3d 921(2016)." R.W. v. C.M., No. 123,469, 2022 WL 2904029, at *12 (Kan. App. 2022)
(unpublished opinion).
See M.G. v. C.H., No. 124,450, 2023 WL 5668659, at *4 (Kan. App. 2023) (unpublished
opinion).
Most of J.P.'s claims attack the district court's allegedly erroneous issuance of
G.S.'s PFS orders. But because those claims are not included in the notice of appeal, we
have no jurisdiction to address them, as we found above.
But J.P.'s brief, read liberally, also argues that the district court ignored undisputed
evidence and was biased when deciding his petition against G.S. J.P. argues that the
evidence undisputedly shows: (1) G.S. falsely reported that he had a PFS order against
J.P. because that order expired after G.S. failed to appear at a hearing; (2) G.S. falsely
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reported that J.P. once tried to hit G.S; (3) G.S. once approached J.P. aggressively and got
uncomfortably close to him; and (4) the previous PFS orders and related factual findings
favoring G.S. biased the district court.
Yet contrary to J.P.'s argument, little, if any, undisputed evidence was admitted at
trial. The parties generally agreed that they had had several negative interactions with
each other and had taken pictures and videos of these interactions. But they disputed
almost every other detail about the incidents. Each disputed details and broadly accused
the other of having initiated and accelerated the interactions, rather than ending them and
avoiding new disputes. Many facts were controverted.
The district court, as the sole arbitrator of the witnesses' credibility, properly
considered those controverted facts when making its decision. See Trolinger v. Trolinger,
30 Kan. App. 2d 192, 197, 42 P.3d 157 (2001). And this court "cannot nullify a trial
judge's disbelief of evidence nor can it determine the persuasiveness of evidence which
the trial judge may have believed." Cresto v. Cresto, 302 Kan. 820, Syl. ¶ 7, 358 P.3d 831(2015). The district court is also "presumed on appeal to have found all facts necessary to
support its judgment." Wentland, 37 Kan. App. 2d at 741.
We have reviewed the evidence from the hearing but need not repeat it here. One
failing stands out. J.P. never claimed in the district court that G.S. placed him in
reasonable fear of his safety, as is statutorily required to prove his claim. See K.S.A. 2023
Supp. 60-31a02(d). The closest testimony was from G.S.'s past tenant, Hein, who
testified that on April 16, 2022, she saw G.S. approach J.P. on the street and force J.P. to
back up a few steps. But Officer Johnson testified that when he suggested to J.P. that he
seek a PFS order against G.S. for his own protection, J.P. responded that he "didn't
believe that he needed a protection . . . from stalking order or protection from abuse order
. . . [because] he was only being attacked mentally and professionally." Although J.P.
challenged that testimony, Johnson explained that J.P. can be heard making nearly
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identical statements on a video of the exchange. And before J.P. ended his testimony, the
district court asked him to state "anything that [G.S.] has done that [made] you feel
threatened." J.P. responded: "The things that he has done is infiltrating the neighborhood,
lying to police officers, telling them I'm a threat."
J.P. now suggests that G.S. "put [him] in harm's way" by making false reports to
the police because he could have been "arrested or worse." He also states that G.S.
"harassed" him by "[p]ointing something" at him. But that "something" could have been a
cell phone, a camera, or another innocuous item. None of this creates a reasonable
inference that G.S. placed J.P. in "reasonable fear for his . . . safety" as required under the
Act. See K.S.A. 2023 Supp. 60-31a02(d). Nor does J.P. argue that any evidence at the
district court hearing shows that he had the necessary reasonable fear. The district court
also found that J.P. repeatedly denied being afraid of G.S. The district court thus correctly
concluded that J.P. failed to prove the elements of stalking under K.S.A. 2023 Supp. 60-
31a02. As a result, the district court had to deny J.P's petition for a PFS.
J.P. does not show an arbitrary disregard of undisputed evidence or show that the
district court relied on some extrinsic consideration such as bias, passion, or prejudice to
reach its decision. So under our standard of review, we cannot disturb the district court's
finding. We thus affirm the order denying J.P.'s petition for a PFS.
Should We Award G.S. Attorney Fees Because of a Frivolous Appeal?
Lastly, we address G.S.'s motion for attorney fees on appeal. After briefs were
submitted, G.S. moved for appellate attorney fees together with the required affidavit of
his appellate counsel and an itemization of her fees under Supreme Court Rule 7.07(b)(2)
(2024 Kan. S. Ct. R. at 52). J.P. did not respond to that motion.
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Generally, a Kansas court cannot "award attorney fees unless a statute authorizes
the award or there is an agreement between the parties allowing attorney fees." Snider v.
American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013). Rule 7.07(c)
allows us to assess fees against an appellant when an appeal is frivolous or motivated by
the desire to harass or delay. But it does not require us to do so.
G.S. contends that J.P.'s appeal is "without question frivolous and filed only to
harass [G.S.] and delay resolution." But we are not persuaded. An appeal is frivolous if it
fails to present any "justiciable question" and is "readily recognized as devoid of merit."
Blank v. Chawla, 234 Kan. 975, Syl. ¶ 5, 678 P.2d 162 (1984). Because Rule 7.07(c)
requires a finding that "an appeal" is frivolous, the presence of even a single nonfrivolous
issue places the entire appeal outside the definition of frivolity. See Porter v. Stormont-
Vail Hospital, 228 Kan. 641, 647-48, 621 P.2d 411 (1980) (denying attorney fees for
appeal that was not totally devoid of merit). That is the case here.
As shown by our analysis of the merits on the PFS order, we do not share G.S.'s
perception that all issues J.P. raised in this appeal are frivolous, although the district court
correctly ruled that J.P. failed to meet his burden of proof. Nor has G.S. shown that the
appeal was motivated by the desire to harass or delay, rather than to obtain redress for a
perceived error. Accordingly, G.S.'s counsel is not entitled to attorney fees under the sole
legal theory she argues.
We thus affirm the district court's decision on J.P.'s petition for a PFS order
against G.S., dismiss all J.P.'s other claims, and deny G.S.'s motion for attorney fees.
Affirmed in part and dismissed in part. Motion for attorney fees denied.
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