Opinion
No. 109,576.
2013-11-8
ANIMAL CARE, INC., by and through Debra K. ANDERSON, D.V.M., d/b/a Westport Animal Clinic, Appellants, v. Roger SHUMAKER and Shumaker Development Company, LLC, Appellees.
Appeal from Shawnee District Court; Franklin R. Theis, Judge. William L. Anderson, of Topeka, for appellants. Robert S. Redler, of Law Office of Robert S. Redler, of St. Marys, for appellees.
Appeal from Shawnee District Court; Franklin R. Theis, Judge.
William L. Anderson, of Topeka, for appellants. Robert S. Redler, of Law Office of Robert S. Redler, of St. Marys, for appellees.
Before MALONE, CJ., PIERRON and Hill, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Animal Care, Inc., doing business as Westport Animal Clinic, seeks our reversal of the district court's denial of its adverse possession claim to an 8–foot strip of land adjacent to its business in Topeka. The law states that a party can acquire ownership of real estate if that party has been in open, exclusive, and continuous possession of that real estate for 15 years under either a claim that is knowingly adverse or under a belief of ownership. Because the Clinic has no proof that the strip of ground was exclusively in its possession for 15 years, as the law requires, we hold the district court correctly denied the Clinic's claim to the contrary. We affirm the district court.
The Clinic bought its real estate in 1988.
In December 1988, Dr. Debra Anderson, along with her husband, William L. Anderson, purchased two commercial condominium units at 2800 SW Wanamaker Rd., Topeka, from Westport Plaza Partnership. Dr. Anderson is also the sole owner of the corporation Animal Care, Inc. Both the corporation and Dr. Anderson do business as Westport Animal Clinic and have operated the clinic at the Wanamaker Road location since it opened in February 1989.
Then, in December 2006, Roger Shumaker and Shumaker Development Company, LLC bought a building next to the Westport Animal Clinic. This adjacent building had previously housed a child day care center called KinderCare. In this opinion we will call Westport Animal Clinic “the Clinic” and refer to Shumaker and Shumaker Development as “Shumaker Development.”
It is important to note that under the “Declaration of Condominium” agreement, the boundaries of the condominium units purchased by the Clinic were limited to the interior spaces. Except for those areas designated as “limited common areas and facilities” (a unit's entrance, air conditioning unit and pad, and sign structure), the grounds outside the Clinic were designated in the declaration as common areas. Title to the common areas remained with the Westport Plaza Partnership. That partnership is responsible for the management and care of the common areas. The Clinic acquired with its purchase an interest described as an “undivided interest in common areas” in proportion to its share of the maintenance expenses as a member of the owners' association. This proportion is based on the square footage of its particular unit or units compared to the total square footage of the remaining units. For the Clinic this equaled 21.2 percent.
Even before the Clinic opened, there has been a 16–foot utility easement—8 feet on either side of the property line—that separates the veterinary clinic and the property now owned by Shumaker Development. When the Clinic began operating in 1989, a chain-link fence running from north to south had been installed on the property now owned by Shumaker Development. The fence was not on the property line itself but approximately 8 feet east of the property line. The dispute here concerns this grassy strip of land between the actual property line and the location where the chain-link fence used to stand.
According to Dr. Anderson, she deliberately chose the particular condominium units for the Clinic in order to take advantage of the “green space” or grassy strip for the animals' needs. In fact, since the Clinic opened in 1989, employees of the Clinic exercised the animals in the Clinic's care on that 8–foot strip several times a day, every day of the year, including after business hours. Also, animal owners bringing their pets to the Clinic used the strip during business hours and walked their animals there before taking them into the Clinic.
At all times, Dr. Anderson and everyone involved with the Clinic believed that all of the land west of the chain-link fence was either part of the Clinic's property or part of the common area of the condominium development. At no point did either Westport Plaza Partnership or the prior occupant, KinderCare, ever complain about the Clinic's use of the strip. Westport Plaza Partnership, the managers of the common areas, planted grass, mowed, trimmed, and otherwise kept up the disputed property as part of its maintenance responsibilities for the common areas of the condominium development.
The disagreement over who actually owned the disputed property never arose until Shumaker Development purchased the property. In the summer of 2008, in order to improve the drainage, Shumaker Development removed the chain-link fence to do some grading on its property and the utility easement.
The business neighbors began to quarrel about the strip. In 2010, Shumaker Development sent a letter to Westport Plaza Partnership complaining about the Clinic, “asserting false claims about odor and threatening legal action.” Dr. Anderson contended that immediately after this,
“Roger Shumaker began intimidating my clients, making rude remarks when they walked [a] dog outside, and began taking pictures of clients and my female employees who were of high school age. He and his wife installed a video camera or other type of camera and kept it trained on my business, employees and clients whenever they were outside.”
In May 2010, an attorney representing Shumaker Development sent a letter to the Clinic demanding that it no longer use the disputed property.
The Clinic takes legal action.
On June 11, 2010, the Clinic filed a petition claiming ownership of the disputed property under the theory of adverse possession by “open, exclusive and continuous possession ... either under a claim knowingly adverse or under a belief of ownership” since the Clinic opened over 15 years earlier (Count I). The Clinic named Westport Plaza Partnership as a necessary party. The Clinic subsequently amended its petition, arguing in the alternative that its use of the disputed property amounted to a prescriptive easement (Count II). The Clinic also included an allegation that Shumaker Development's conduct amounted to tortious interference with a business relationship (Count III).
In August 2010, the district court granted Westport Plaza Partnership's motion to drop it as a third-party plaintiff under K.S .A. 60–221. Eventually Shumaker Development answered and raised a counterclaim, claiming ownership of the strip. Shumaker Development sought dismissal of all counts against it and also sought damages for trespass.
The relationship between the Clinic and Shumaker Development continued to deteriorate. In August 2010, Shumaker Development complained to the City of Topeka that the Clinic had violated municipal zoning codes. The City of Topeka zoning administrator sent the Clinic a letter informing it would be in violation of Topeka Municipal Code 18.225 as a business zoned C–4 if any of its animals were defecating outside of the Clinic. In her affidavit, Dr. Anderson maintains that “[t]he situation was only resolved when Braxton Copley, attorney for the city of Topeka, intervened and made the zoning office back off, because my business and actions were all legal under our current zoning.”
Then, in October 2010, Shumaker Development called the police on three separate occasions and complained about the noise of the dogs barking coming from inside the Clinic. No citations were issued.
In March 2011, Shumaker Development tried to place fence posts along what it believed to be the property line, but a temporary restraining order prevented the completion of a new fence. Both parties dispute whether the court's order permitted all of the fence posts to remain pending the outcome of the litigation or whether all of the line posts, except the end posts, were to be removed. The Clinic removed the line posts anyway, and Shumaker Development complained to the police against the Clinic for criminal vandalism. No citations were issued.
By April 2011, the dispute reached the point where the Clinic sought to amend its petition to add a claim of harassment, alleging that during the course of litigation Shumaker Development had intentionally terrorized its clients and filed various fraudulent complaints that harmed its business relationships.
That same month, Shumaker Development commissioned a survey. Neither party disputes the survey's findings. The survey fixed the legal boundary between the two properties at the center of the 16–foot utility easement, about where Shumaker Development had placed the new fence posts.
The Clinic asked for summary judgment on its claims of adverse possession and harassment. In its opinion, the district court first ruled that the Clinic had standing on its adverse possession claim and it would construe Shumaker Development's motion to dismiss as a motion for summary judgment.
The district court then granted summary judgment to Shumaker Development on the Clinic's claims of adverse possession and prescriptive easement. The district court found that the Clinic did not a have a satisfactory belief of ownership because it could not establish an exclusive belief of ownership in a common area it shared with other owners in the development or with the Westport Plaza Partnership. The district court also found that the Clinic failed to meet its burden to produce evidence that its use of the disputed property was knowingly adverse.
Lastly, the district court granted the Clinic's proposed amendment to add a claim for harassment, Count IV, and gave the Clinic the opportunity to supplement its pleadings.
At a hearing on May 11, 2012, the district court denied the Clinic's motion to alter or amend the judgment, affirming its prior ruling on Counts I and II. The district court did grant the Clinic's motion to amend its petition for Counts III and IV. The district court, however, informed the parties that the record for Counts III and IV “is ... really not in a form the Court can really get a grip on” given the effect of its prior ruling on Counts I and II and ordered the Clinic to file an amended petition and new summary judgment motion restating Counts III and IV assuming its prior ruling was correct. The Clinic, in a subsequent letter to the district court, declined to submit a new petition with an amended summary judgment motion and asked the district court to rule on Counts III and IV based on the existing pleadings.
The district court granted summary judgment to Shumaker Development on Count III, finding that none of the conduct alleged by the Clinic amounted to tortious interference. The district court found Shumaker Development had acted reasonably because the Clinic had no legal interest in the disputed property and its use of the disputed property violated zoning codes. The district court then dismissed Count IV, or “any undesignated ‘harassment’ claims,” for failure to state a claim, opining that the Clinic had declined the court's offer to recharacterize its harassment claim in Count IV, thus “leaving only the Amended Petition's Count III—tortious interference claim—pending.” The district court also noted that it found none of the alleged conduct would support a claim of harassment.
In this appeal, the Clinic claims the district court made two errors. First, it claims the district court erroneously applied the standard of review for a motion for summary judgment. Second, in the Clinic's view, the court misinterpreted the law of adverse possession. Because the Clinic makes no argument in its brief about its prescriptive easement claim found in Count II of its petition, we hold it has waived this issue. An appellate court deems an issue not briefed by the appellant waived or abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
We review some fundamental points of law.
In Kansas, statutory law sets out the requirements for adverse possession. Under K.S.A. 60–503, “[n]o action shall be maintained against any person for the recovery of real property who has been in open, exclusive, and continuous possession of such real property, either under a claim knowingly adverse or under belief of ownership, for a period of fifteen (15) years.”
This statute eliminated the common-law concept of hostility as a required element of adverse possession. See Stark v. Stanhope, 206 Kan. 428, 432, 480 P.2d 72 (1971.) Consequently, if the possession is open, exclusive, and continuous for the 15–year statutory period, adverse possession can be acquired by either (1) a claim knowingly adverse or (2) through occupancy under a belief of ownership. Further, the party's belief of ownership must be both in good faith and reasonable. Wright v. Sourk, 45 Kan.App.2d 860, 865–66, 258 P.3d 981 (2011), rev. denied 293 Kan.––– (January 20, 2012).
When a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Kansas law does not permit the property of a person to be taken by another upon slight presumptions or possibilities. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980).Thus, to succeed on a claim of quiet title by adverse possession, the Clinic has the burden to establish its claim of ownership by presenting clear and convincing evidence of the requisite statutory elements. See Crone v. Nuss, 46 Kan.App.2d 436, 442, 263 P.3d 809 (2011), rev. denied 294 Kan.––– (June 13, 2012). Generally, this presents a question of fact for the trier of fact to determine, and this court on appeal would have to determine whether the findings of fact were supported by substantial evidence. Wright, 45 Kan.App.2d at 866. But this case concerns an appeal from summary judgment.
The standard of review courts use when dealing with summary judgment is well settled. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute concerning a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply to the appellate court and summary judgment must be denied if reasonable minds could differ on the conclusions drawn from the evidence. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013).
In this case, the material facts were not in dispute. Thus, the issue for the district court became the legal significance of those undisputed facts, i.e., whether the underlying facts had the legal effect either of adverse possession through a claim knowingly adverse or under a good-faith belief of ownership. See Wright, 45 Kan.App.2d at 865. When entry of summary judgment is a question of law or involves the application of legal principles to uncontroverted facts, an appellate court owes no deference to the district court's decision, and our review is unlimited. See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009). Moreover, to the extent our review concerns statutory interpretation, which is a question of law, appellate courts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
We will now return to our analysis of the district court's ruling on the question of adverse possession.
The Clinic did not acquire this tract through adverse possession .
The Clinic contends that its continuous use of the 8–foot strip of ground to walk its dogs every day of the year from 1989 until 2010 put the prior owner of the disputed property, KinderCare, on notice of its open possession and continuous use. Shumaker Development does not dispute this contention. But more than use of the property must be proved to support a claim such as this.
In Kansas, “[i]t has been held many times that adverse possession is largely a matter of intent—coupled of course—with overt acts on the part of claimant.” Rieke v. Olander, 207 Kan. 510, 511, 485 P.2d 1335 (1971). To establish adverse possession,
“the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken.” Trager v. Elliot, 106 Kan. 228, Syl. ¶ 3, 187 P. 875 (1920).
Moreover, actions necessary to establish the elements of adverse possession depend upon the nature and type of property at issue and the surrounding circumstances. Buchanan v. Rediger, 26 Kan.App.2d 59, 63, 975 P.2d 1235,rev. denied 269 Kan. 888 (1999).
In fact, the district court accurately acknowledged that the Clinic used the strip, without objection by the legal owner of the property for more than the statutory minimum of 15 years. But more must be proved. A party acquires ownership only if all of the statutory elements of adverse possession under K.S.A. 60–503 are met .” See Wright, 45 Kan.App.2d 860, Syl. ¶ ¶ 1–4.
Citing Trager, 106 Kan. at 231, the district court ruled that the Clinic's use of the disputed property “was not so inconsistent with a right of use and ownership of the land sought, that the true owner [KinderCare] would ‘unequivocally’ recognize the peril of losing title over the fifteen year period of continued use which is required to sustain a claim of adverse possession.” We agree.
The circumstances of each case provide a context for the judicial determination of the legal significance of a party's actions. In Trager, 106 Kan. 228, Syl. ¶ 2, our Supreme Court held that the grazing of cattle on unoccupied prairie land or the occasional entries onto unenclosed land to cut grass for hay were insufficient to give unequivocal notice of a hostile claim of adverse possession. This was particularly true at a time when cattle and horses were ordinarily pastured over unfenced and uncultivated land and it was customary among settlers in the area to cut hay on unoccupied lands. 106 Kan. 228, Syl. 12. Even though the law no longer requires proof of hostility, some notice of the adverse claim to the owner is still required. See K.S.A. 60–503; Trager, 106 Kan. 228, Syl. ¶ 3;Wright, 45 Kan.App.2d 860, Syl. ¶ ¶ 1–4.
In Thompson v. Hilltop Lodge, Inc., 34 Kan.App.2d 908, 910–11, 126 P.3d 441 (2006), this court held that the plaintiff's failure to have exclusively provided maintenance along an open boundary “did not give unequivocal notice to the defendant of the plaintiff's claim of title to the tract.” Kansas law does not allow mere possession, even to a fence beyond the true property line, to be converted into possession in a hostile manner, knowingly adversely to the true owner. See Martin v. Hinnen, 3 Kan.App.2d 106, 108, 590 P.2d 589 (1979).
Actions speak more plainly than words at times. Some sort of action that demonstrates “this property is now mine” is required to prove adverse possession. In Chesbro v. Board of Douglas County Comm'rs, 39 Kan.App.2d 954, 962, 186 P.3d 829,rev. denied 286 Kan. 1176 (2008), it was undisputed that for more than 15 years the parties believed a fence between two properties was the boundary line and that both parties exclusively maintained each side of the fence. This court noted that both Trager and Thompson were distinguishable because there was uncontroverted evidence of the county's exclusive maintenance of the disputed tract. Chesbro held that this uncontroverted evidence, along with the placement of the fence as a boundary, were sufficient actions to constitute adverse possession under a good-faith belief of ownership. 39 Kan.App.2d at 963–64. In doing so, this court cited to the district court's conclusion that
“ ‘the county's exclusive mowing of and killing of weeds on the strip of land demonstrates its belief of ownership on the strip of land, as well as announcement of this belief of ownership to the entire world. The county is not likely to maintain land it does not believe it owns.’ “ (Emphasis added.) 39 Kan.App.2d at 968.
Turning to the facts here, we see that the Clinic believed the chain-link fence that existed when it purchased its property would be the boundary line between the two properties. The record clearly establishes that during the 15–year statutory period, the Clinic continuously used the disputed property to the fence for the exercise and defecation needs of the animals under its care in a manner consistent with that of a veterinary clinic. These facts show a belief that the Clinic could use the 8–foot strip.
The Clinic provided uncontroverted evidence that Westport Plaza Partnership exclusively maintained the disputed property on its side of the fence consistent with the character of the property for more than 15 years as part of the common-area maintenance. In other words, there was no pretense of possession of the disputed property by anyone other than the Clinic and Westport Plaza Partnership.
The trouble with the Clinic's claim is that it cannot show exclusive use. It is uncontroverted that the Clinic holds its undivided interest in the common areas as a cotenant with the other members of the owners' association holding similar undivided interests. But the Clinic is not attempting to claim title and the right to exclusive possession of the common areas to the exclusion of its cotenants through partition, division, or ouster. See K.S.A. 58–3106(c).
Ancient precedent offers guidance at this point. In Schoonover v. Tyner, 72 Kan. 475, Syl. ¶ 3, 84 P. 124 (1905), the Supreme Court ruled: “Before a tenant in common can rely on an ouster of his co-tenants, he must claim the entire title to the land in himself, and must hold the exclusive and adverse possession against every other person.”
Here, the record indicates that all members of the owners' association paid a common expense for the common-area maintenance managed by Westport Plaza Partnership, which included the cutting of the grass, seeding, and weeding. See K.S.A. 58–3102(i). The Clinic paid 21.2 percent of the common-area maintenance costs to Westport Plaza Partnership and the other members of the owners' association paid the remaining 78.8 percent. Neither the Clinic nor any other member of the owners' association can selectively isolate its particular common-expense payment as being the exclusive source of funds responsible for the maintenance and upkeep of any particular part of the common-area maintenance, including the expenses incurred maintaining this 8–foot strip of property. The lawn care invoices submitted by the Clinic only indicate as much. In other words, the other members of the owners' association with similar undivided interests and a similar belief of ownership in the common areas were also paying Westport Plaza Partnership to perform maintenance on the strip in question. In fact, the other tenants paid 78.8 percent of the expenses.
The district court was correct when it ruled that the Clinic's belief of ownership was not exclusive “but a shared one” based on a belief that the disputed property “was part of the common areas of Westport Plaza business development.” The Clinic could only hold “a right of use of enjoyment and for which use and enjoyment it paid a ratable share of the costs of its maintenance.”
Language used by the United States District Court for the District of Kansas in Oyler v. United States, No. 92–2104–JWL, 1993 WL 105119 (D.Kan.1993) (unpublished opinion), is useful in understanding the significance of this lack of exclusivity on the part of the Clinic. The court stated:
“ ‘Whether or not a possessor acquires title by adverse possession is a question of fact. [Citation omitted.]’ It is uncontroverted that the plaintiff holds his interest as a cotenant with those owning unrestricted interests in the land. When a cotenant, i.e. a tenant in common, takes possession of property ‘his possession is presumed to be in common with other cotenants and for their use and benefit as well as his own. [Citation omitted.]’ Thus, resolution of the question of fact presented here must be guided by the special rules established in light of that presumption, many of which are of hoary vintage.
“These are two requirements for adverse possession from a cotenant: ouster and notice. The possession of land by a cotenant only becomes adverse to his or her cotenants when ‘the tenant in possession is claiming title and the right to possession to the exclusion of his cotenants.’ The cases often refer to this requirement of exclusive possession as ‘ouster. [Citation omitted.]’ An ouster is a denial and repudiation of another cotenants' rights. [Citation omitted.]
“ ‘A cotenant who has actual knowledge of the existence of other cotenants cannot hold title adversely to the other cotenants until the other cotenants have knowledge or notice of the fact of the adverse holding. [Citations omitted.]’ The following are the requirements for knowledge or notice:
“ ‘The notice or knowledge required may be actual, as in the case of a disavowal or disclaimer of any right in his cotenants, or it may be inferred from acts or circumstances attending such adverse possession, which are overt, notorious and unequivocal in their character and import. From such acts it is the duty of the other cotenants to be informed thereof and to draw such reasonable inferences therefrom as prudent persons possessed of and interested in like information would naturally do, and such cotenants out of possession cannot prevent the operation of the statute of limitation by proving that they did not know of the facts affecting their interest, or, knowing of them, did not draw correct conclusions therefrom.’ [Citation omitted.]” 1993 WL 105119, at *4.
The record in this case is devoid of any evidence that the Clinic, in any fashion, attempted to oust any of the cotenants or put them on notice that it claimed ownership of this strip of ground. Thus, the Clinic has no proof of any exclusive use of the 8–foot strip. The district court correctly denied the Clinic's motion for summary judgment on this point and correctly granted summary judgment to Shumaker Development.
We will not deal with Shumaker Development's issue about the identity of the parties.
Shumaker Development asserts that the district court erroneously merged Dr. Anderson, Animal Care, Inc., and the Clinic as parties by treating them “as one and the same.” Shumaker Development is arguing that the district court, in conducting its adverse possession analysis, failed to isolate the Clinic as a tenant of the true title owner of the property, Westport Animal Clinic, Inc. The Clinic is, in its view, a distinct entity with no ownership interest in the real estate and thus could never acquire ownership through adverse possession of Shumaker Development's real estate.
Shumaker Development is raising this argument for the first time on appeal. Despite that, it contends that its argument can be raised under the known exceptions to the ordinary rule against raising arguments for the first time on appeal. The three exceptions to that general rule are:
• the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case;
• consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
• the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assigned a wrong reason for its decision.
See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied555 U.S. 1178 (2009). We do not think this case falls into one of those exceptions.
But other than an unsubstantiated allegation that Dr. Anderson was deceptive in her affidavit regarding the Clinic's status as a party, Shumaker Development offers no authority in its brief to support its conclusory statement that its argument falls under all of the exceptions to the general rule. The argument by Shumaker Development construing the Clinic as a tenant of Westport Animal Clinic is not properly before this court, and we will not consider it.
In a related argument, Shumaker Development also asserts Animal Care, Inc.'s possession of the disputed property was not under a claim “knowingly adverse” because its use of the disputed property was “by a grant of permission” from KinderCare. We recognize that the law does not allow a party to acquire title to a property under a theory of adverse possession if that party has been granted permission to occupy the property. See McCoy v. Cover, 159 Kan. 711, 715, 158 P.2d 380 (1945).
Shumaker Development relies on two documents for support. First, a letter sent to Roger Shumaker from William Anderson acting as Animal Care's attorney, in which William purportedly admitted to having obtained prior consent to use the disputed property. Second, an affidavit from Roger concerning a purported conversation between him and Dr. Anderson in which she admitted to consensual use of the disputed property by asking permission to continue mowing the disputed property. In her counter-affidavit, Dr. Anderson disputes the claim that any conversation with Shumaker Development regarding the location of the property line or the cutting of the grass occurred. She maintains that there was never an agreement with KinderCare to use the disputed property.
The district court made no findings of fact or conclusions of law regarding this argument. We will not weigh disputed evidence such as this or judge credibility when deciding an appeal of an order granting summary judgment.
We turn now to the harassment issue.
The Clinic drops its claim for tortious interference.
For its next argument, the Clinic contends the district court erroneously interpreted city ordinances and ignored evidence in ruling on its harassment claim found in Count IV.
We must point out that the Clinic fails to brief how this alleged erroneous ruling affects its tortious interference with a business claim. It makes no effort to show that there is no genuine issue regarding any material fact about the five required elements of proof to establish such a claim. In our view, the Clinic has thus waived any consideration on appeal of Count III, its tortious interference with a business claim. See Superior Boiler Works, Inc., 292 Kan. at 889;Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
The Clinic has no cause of action based on a criminal statute.
Basically, the Clinic attacks the district court's conclusion that “it appears that the use of Defendants' property by Plaintiff for its animal patients was inconsistent with existing zoning laws, such that such practices which Plaintiff sought protection for actually represented prohibited conduct.” The Clinic contends this error ignored the fact that Shumaker Development made a false complaint against the Clinic.
According to the Clinic, the district court should have found Shumaker Development's complaints to the city zoning office and police were violations of K.S.A. 21–3818 (falsely reporting a crime). But we must point out that this is a civil case. Kansas courts will not find or infer a private cause of action where a statute provides criminal penalties but does not mention a civil liability. See Pullen v. West, 278 Kan. 183, 199–200, 92 P.3d 584 (2004). In this case, there is no basis in this criminal statute for an appeal of a private right of action. There is simply no mention of a private cause of action in K.S.A. 21–3818.
While the Clinic uses a definition of harassment found in K.S.A. 60–31a02(b), the protection from stalking act, again there is no showing of a private cause of action permitted by this law. Essentially, the Clinic has not argued any cause of action other than one based on the criminal statute set out above. An issue not briefed by an appellant is deemed waived or abandoned. Superior Boiler Works, Inc. 292 Kan. at 889. We deem this issue abandoned by the Clinic.
Affirmed.