IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,132
RICHARD WILLIAMS,
Appellee/Cross-appellant,
v.
DR. STEVE LAWTON,
Appellant/Cross-appellee.
SYLLABUS BY THE COURT
1. 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.
2. The question of whether an appellate court has jurisdiction is a question of law over which the scope of review is unlimited.
3. K.S.A. 2008 Supp. 60-2102(c) requires an application for interlocutory appeal to be filed within 10 days of the entry of a district judge's order allowing an interlocutory appeal. However, because Supreme Court Rule 134 (2008 Kan. Ct. R. Annot. 217) requires a district judge to provide notice of written orders, the 3-day mailing rule of K.S.A. 2008 Supp. 60-206(d) applies and extends the 10-day filing period if a district judge serves an order by mail.
4. K.S.A. 2008 Supp. 60-2102(c) gives the Court of Appeals discretion to grant an interlocutory appeal but limits that discretion by stating criteria which must be met before an interlocutory appeal may be properly allowed by a district court and accepted by the Court of Appeals. The interlocutory appeal must: (1) involve a controlling question of law, (2) relate to an issue on which there is a substantial ground for difference of opinion, (3) materially advance the ultimate termination of the litigation, and (4) be timely filed.
5. In most circumstances, an appellate court's task in an interlocutory appeal is to answer certified questions rather than to rule on the propriety of all orders of a district court. An exception applies where a certified issue in an interlocutory appeal is inextricably intertwined with other issues that do not meet the criteria for an interlocutory appeal. Under the exception, the other issues may also be reviewed to allow meaningful review and promote judicial economy.
6. Recalling jurors to answer for misconduct is within the sound discretion of a district judge.
7. Jurors may be recalled for posttrial hearings only by order of a judge after a hearing on a request to recall jurors.
8. The burden is on the party seeking an order to recall jurors to show the necessity for the order.
9. Under Supreme Court Rule 169 (2008 Kan. Ct. R. Annot. 240), attorneys may discuss a trial with willing jurors after their discharge from jury duty and may do so without seeking permission from the district judge unless contrary orders have been given.
10. Under Supreme Court Rule 181 (2008 Kan. Ct. R. Annot. 247), jurors cannot be called for hearings on posttrial motions without an order of the court that is entered after a motion and hearing.
11. It is within a district judge's discretion to control the questioning and the format of an evidentiary hearing conducted after jurors are recalled.
12. A case must be decided solely on the evidence presented at trial and the instructions given to a fair and impartial jury. To this end, K.S.A. 60-444(a) provides that a juror is allowed to testify as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited in K.S.A. 60-441.
13. Public policy forbids the questioning of a juror on the mental processes used in reaching a verdict because there is no possible way to test the truth or veracity of the answers. This policy is codified in K.S.A. 60-441, which prevents a court from considering any evidence that attempts to show the effect of any statement, conduct, event, or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.
14. Normally a juror is not allowed to impeach a verdict, either through testimony or by affidavit, where it is not obvious from the verdict that a jury failed to follow the jury instructions. Exceptions are recognized if a jury intentionally disregards the court's instructions or violates one or more of the essential formalities of proper jury conduct, including a long-standing exception that applies where a juror alleges the jury entered into a conscious conspiracy to circumvent the deliberation process by engaging in conduct which produces a quotient verdict.
15. Jurors may average their individual, suggested verdicts so long as there is no prior agreement to be bound by the result of the mathematical computation. However, if there is an advance agreement to be bound by the average figure, the result is an impermissible quotient verdict because the advance agreement impeaches the verdict and subverts the deliberative process by which jurors must arrive at their verdict.
16. Juror misconduct will not justify the granting of a new trial unless the misconduct is shown to have substantially prejudiced a party's rights. A party claiming prejudice has the burden to prove prejudice. The determination of whether a new trial is warranted is reviewed for an abuse of discretion.
17. The determination of whether a verdict is a quotient verdict is a question of fact for a district judge to determine. Because this determination is a question of fact, an appellate court reviews the district judge's findings to determine if the findings are supported by substantial competent evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion.
18. The interpretation of a statute is a question of law over which an appellate court has unlimited review. The fundamental rule of statutory interpretation requires courts to give effect to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, a court must give effect to that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history.
19. There is no requirement in the plain language of K.S.A. 60-3412 that a proposed expert witness in a medical malpractice liability action devote any specific amount or percentage of his or her time to the professional practice of the healing art at issue.
20. Under K.S.A. 60-3412, the appropriate test to determine if a proposed medical malpractice liability expert is statutorily qualified to testify as to the applicable standard of care is to examine the 2 years preceding the incident giving rise to the suit to determine if during that time, when considered as a whole, the proposed expert devoted more than 50 percent of his or her professional time to actual clinical practice in the same profession the defendant is licensed.
Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 565, 170 P.3d 414 (2007). Appeal from Sedgwick district court; WILLIAM SIOUX WOOLLEY, judge. Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and reversed in part. The judgment of the district court is affirmed, and the case is remanded to the district court with directions. Opinion filed May 29, 2009.
James D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued the cause, and Amy S. Lemley and Brooke Bennett Aziere, of the same firm, of Wichita, were with him on the briefs for appellant/cross-appellee.
Lawrence W. Williamson, Jr., of Shores, Williamson, and Ohaebosim, LLC, of Wichita, argued the cause and was on the brief for appellee/cross-appellant.
G. Andrew Marino and Shannon L. Holmberg, of Gilliland & Hayes, P.A., of Wichita, and Peter S. Johnston and Dustin J. Denning, of Clark, Mize & Linville, Chartered, of Salina, were on separate briefs for amicus curiae Kansas Association of Defense Counsel.
The opinion of the court was delivered by
LUCKERT, J.: This interlocutory appeal follows a district judge's decision to grant a new medical malpractice trial because of jury misconduct. More specifically, the district judge found the defendant was prejudiced by the jury's agreement to average each juror's assessment of negligence and to accept the resulting quotient as the jury's verdict. Subsequently, the district judge certified three questions for interlocutory appeal: (1) Was it error to admit the testimony of the plaintiff's medical malpractice liability expert who had retired from clinical practice several months before the medical treatment that gave rise to this case? (2) Was it error to sua sponte recall the jury? and (3) Did the judge commit error by questioning the jurors without allowing the attorneys to directly participate in the questioning?
After accepting the interlocutory appeal, the Court of Appeals broadened the scope of the issues, finding defense counsel's conduct in interviewing the jurors to be inappropriate and determining that the issue of whether a new trial should be granted was inextricably intertwined with the interlocutory issues. Then, finding error in the procedure followed in recalling the jurors, in the district judge's questioning of the jurors, and in the district judge's decision that there had been a prejudicial quotient verdict, the Court of Appeals reversed the district court's grant of a new trial. Williams v. Lawton, 38 Kan. App. 2d 565, 170 P.3d 414 (2007).
Dr. Steve Lawton filed a petition for review, raising several issues relating to the Court of Appeals' jurisdiction and holdings. Upon our review, we conclude the Court of Appeals had jurisdiction over all the issues it considered, but we reverse the holding that the district judge erred in granting a new trial because the determination of whether there was a quotient verdict is inherently factual and substantial competent evidence supports the district judge's findings.
District Court Proceedings
This medical malpractice action was filed after Richard Williams suffered complications from an adult circumcision performed by Lawton. A jury found Lawton 54 percent at fault for Williams' injuries and awarded $200,000 for past and present pain and suffering and $1.775 million for future pain and suffering.
Lawton subsequently filed several motions, including a motion for a cap on damages to be applied to the verdict pursuant to K.S.A. 60-19a02 and a motion for judgment as a matter of law (notwithstanding the verdict) or, in the alternative, a motion for new trial. See K.S.A. 60-250(b). Lawton's motion for a new trial was based on several issues, including two that are pertinent to this appeal. First, Lawton renewed pretrial and trial objections to the qualifications of Williams' standard-of-care expert witness, Philip Diggdon, M.D. Lawton argued that K.S.A. 60-3412 required Diggdon's disqualification because Diggdon had retired approximately 3 months before Lawton treated Williams. Because Diggdon's professional time at the time of the incident was entirely devoted to legal consulting, Lawton argued the expert was disqualified.
Second, Lawton's motion for a new trial alleged juror misconduct, an argument he supported by the affidavit of a juror, Juror A.S., which defense counsel procured after conducting postverdict systematic telephone interviews of the jurors. The affidavit stated in part that "the verdict was reached by averaging all of the jurors' opinions."
After holding a hearing and considering the affidavit of Juror A.S. and the affidavits of two other jurors submitted by the plaintiff's counsel, the district judge issued an order requesting that all the jurors return for questioning. Eight of the 12 jurors appeared and separately testified in response to the judge's inquiries. The district judge conducted the questioning; the attorneys were not permitted to directly participate.
Based upon the jurors' responses, the district judge found, inter alia, there was juror misconduct by means of an improper quotient verdict and the misconduct "substantially prejudiced" Lawton's rights. Consequently, the district judge granted Lawton's motion for a new trial. Subsequently, the proceedings were stayed when the district judge granted the parties' request to seek an interlocutory appeal.
Court of Appeals' Decision
The Court of Appeals granted Lawton's request for an interlocutory appeal and, by subsequent separate order, granted Williams' interlocutory cross-appeal.
Scope of Interlocutory Appeal
From the start, the parties disagreed about the scope of issues in this appeal. In their appellate briefs, each party focused on the certified question or questions corresponding with their individual grievances. Lawton appealed the district judge's decision to admit Diggdon's expert testimony, and Williams questioned the procedures that led to the recall of the jury. Lawton argued, however, that Williams inappropriately attempted to broaden the Court of Appeals' scope of review by raising other issues related to the district judge's order granting a new trial and seeking a reinstatement of the jury's verdict. Lawton asserted that the Court of Appeals' jurisdiction was limited to consideration of the three issues certified for interlocutory appeal by the district judge and, therefore, the district judge's order granting a new trial was neither appealed nor appealable.
The Court of Appeals, in a split decision, disagreed with Lawton's contention that the scope of the interlocutory appeal should be so limited and stated two reasons for its decision. First, the majority stated that if it were to address the specific certified questions related to jury recall without considering whether a new trial was warranted, any decision issued would be merely advisory, which is prohibited. 38 Kan. App. 2d at 570. As support for this reasoning, the majority noted that the district judge expected the Court of Appeals "to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial." 38 Kan. App. 2d at 571. As the Court of Appeals majority observed, the district judge noted that only legal questions can be certified for interlocutory appeal and the question of whether there was a quotient verdict was factual but "that what goes up is the whole motion for new trial and not just whatever issue I say goes up." 38 Kan. App. 2d at 571.
Second, the Court of Appeals majority stated that each of the three certified questions "were derived from and were the lynchpins" for the district judge's order granting a new trial. 38 Kan. App. 2d at 572. The majority cited Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), where this court held that issues not meeting the criteria for an interlocutory appeal may be reviewed along with appealable issues where the issues are "'inextricably intertwined'" and must be reviewed "'to allow meaningful review and promote judicial economy.'" 38 Kan. App. 2d at 571.
Retired Justice, now Senior Judge Edward Larson, assigned to the Court of Appeals panel concurred in part with and dissented in part from the majority opinion. 38 Kan. App. 2d at 586-97. As to the question of scope, Senior Judge Larson would have held that the district judge improperly certified the questions for interlocutory appeal and that the Court of Appeals improvidently granted consideration of the same. 38 Kan. App. 2d at 586 (Larson, J., dissenting in part). Nevertheless, because the interlocutory appeal was accepted by the Court of Appeals, Senior Judge Larson concurred with the majority's view that the issues relating to jury recall and the granting of a new trial were inextricably intertwined and, thus, it was necessary to consider all issues pertaining to the district judge's order for a new trial. 38 Kan. App. 2d at 587-88 (Larson, J., concurring in part).
Qualification of Plaintiff's Expert Witness
Having determined there was no procedural bar to the consideration of the substantive issues, the Court of Appeals addressed the certified question which is the subject of Lawton's appeal: Did the district judge err in finding the plaintiff's sole expert witness, Diggdon, met the criteria set forth in K.S.A. 60-3412 and in rejecting the argument that the error was a basis for ordering a new trial? The majority, with Senior Judge Larson concurring, concluded that the record supported the district judge's finding that Diggdon spent at least 50 percent of his professional time during the 2 years preceding the incident in his actual clinical practice, regardless of the fact that he retired approximately 3 months before the incident and became a full-time consultant thereafter. 38 Kan. App. 2d at 574; 38 Kan. App. 2d at 588-89 (Larson, J., concurring in part). The Court of Appeals held that the district judge correctly interpreted and applied K.S.A. 60-3412, Diggdon properly testified on behalf of Williams, and the admission of Diggdon's expert testimony was not a basis for granting a new trial. 38 Kan. App. 2d at 575.
Jury Recall and Questioning of Jurors
Next, the Court of Appeals addressed Williams' interlocutory cross-appeal in which he challenged the district judge's decision to recall the jury, arguing that the recall did not follow a party's motion and was not timely. He also argued the trial judge erred in not allowing counsel to participate in the questioning of the recalled jurors and in asking jurors questions that invaded the mental processes of the jury. Finally, Williams argued Lawton had failed to show sufficient misconduct to warrant granting a new trial.
The Court of Appeals majority concluded that the district judge abused his discretion in granting a new trial and in implementing the procedures that led to the decision. 38 Kan. App. 2d at 581-84. As to defense counsel's postverdict systematic contact of the entire jury "with the clear intention of exploring grounds to impeach the verdict," the majority indicated it would be a "better practice" to undertake such action only with the knowledge and consent of the district judge. 38 Kan. App. 2d at 581.
Senior Judge Larson disagreed, finding nothing improper with the communications between counsel and the jurors. The dissent stated that requiring court approval would abandon long-time practice, severely limit attorneys in their "search for the truth and integrity of a jury's verdict, and make misconduct of a jury unduly difficult to be discovered and rectified." 38 Kan. App. 2d at 589 (Larson, J., dissenting in part).
The Court of Appeals majority further determined that the district judge violated Supreme Court Rule 181 (2008 Kan. Ct. R. Annot. 247), which prohibits jurors from being called for hearings on posttrial motions without a court order "after motion and hearing" to determine whether any jurors should be recalled. The majority held that Rule 181, if not expressly violated, was violated "in spirit." 38 Kan. App. 2d at 582. Senior Judge Larson, dissenting on this point, noted that the district judge stated he was addressing the matter sua sponte but defense counsel apparently viewed this as an invitation for a motion and promptly accommodated the judge with an oral motion. 38 Kan. App. 2d at 590 (Larson, J., dissenting in part).
On a related issue, the Court of Appeals majority concluded that although the district judge's personal questioning of jurors without the direct participation of counsel was not an abuse of discretion, the questions asked "may" have improperly invaded or probed the mental processes of the jurors. 38 Kan. App. 2d at 582. Again, Senior Judge Larson disagreed and would have found that the questions asked by the district judge related to the issues discussed and became specifically directed to whether the jurors had a prior agreement to be bound by the average which was taken by the jury and became its verdict on the liability issue. The questions, according to the dissent, did not violate the limitations of K.S.A. 60-441 because they generally related to the action taken by the jury, not the jury's mental processes. 38 Kan. App. 2d at 590-94 (Larson, J., dissenting in part).
Quotient Verdict
The Court of Appeals next considered whether the jurors' testimony evidenced a quotient verdict. The majority concluded that "the collective testimony of the jurors did not support jury misconduct" and did not support a quotient verdict. 38 Kan. App. 2d at 583. The Court of Appeals' majority held the circumstances were insufficient to set aside the jury's verdict and to order a new trial. Thus, the Court of Appeals reversed the order granting a new trial and remanded with directions to reinstate the jury's verdict. 38 Kan. App. 2d at 585-86.
Senior Judge Larson, in his dissent, would have affirmed the district judge because there was sufficient evidence to support the district judge's finding of jury misconduct. Specifically, Senior Judge Larson pointed out that at least four of the eight jurors who appeared before the court for questioning indicated there was an advance agreement to average each juror's suggested verdict and to use the resulting quotient as the jury's verdict. 38 Kan. App. 2d at 595-97 (Larson, J., dissenting in part).
Analysis
1. Jurisdiction
We will first discuss Lawton's argument that the Court of Appeals lacked jurisdiction over any issue other than the question of Diggdon's qualifications. Specifically, Lawton raises three issues relating to jurisdiction. First, Lawton asks us to agree with Senior Judge Larson's view that the Court of Appeals should not have granted Williams' request for interlocutory appeal. Second, Lawton contends the issues raised by Williams–i.e., those related to the granting of a new trial–were not timely brought before the Court of Appeals because Williams did not submit his application for interlocutory appeal within 10 days of the district judge's order as required by K.S.A. 2008 Supp. 60-2102(c). Third, even if Williams' assertions were not time-barred, Lawton presents an alternative argument that the Court of Appeals exceeded its authority by addressing issues regarding the order granting a new trial. Lawton asserts that appellate jurisdiction should have been limited to the three questions certified by the district judge.
Each of these issues is premised upon a question of whether the Court of Appeals and, in turn, this court have jurisdiction to review the issues. It is well established that appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference to appellate jurisdiction in the Kansas Constitution iterates this principle, stating the Kansas Supreme Court shall have "such appellate jurisdiction as may be provided by law." Kan. Const., art. 3, § 3; Flores Rentals v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 (2007). The constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited the court's jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, 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. Flores Rentals, 283 Kan. at 481; 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).
The question of whether an appellate court has jurisdiction is a question of law over which the scope of review is unlimited. Cypress Media, 268 Kan. at 414; Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). If an appellate court does not have jurisdiction, it has a duty to dismiss an appeal. Flores Rentals, 283 Kan. at 480; Max Rieke & Brothers, Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 342-43, 118 P.3d 704 (2005).
a. Timeliness
Lawton asserts Williams' initial application for an interlocutory appeal–raising, inter alia, the two certified questions regarding jury recall–was untimely under the 10-day filing requirement of K.S.A. 2008 Supp. 60-2102(c) and, therefore, the issues raised by Williams should not have been considered by the Court of Appeals. Although this issue was not discussed in the Court of Appeals' opinion, appellate jurisdiction is a question that may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. Vorhees, 283 Kan. at 397. Consequently, we consider the issue.
Williams concedes that his application was not filed within 10 days of the order that certified the questions for interlocutory appeal. Nevertheless, he argues the application was timely because it was filed within 10 business days plus 3 days for mailing.
In fact, Williams' application was filed 17 days after the August 5, 2006, order which allowed the interlocutory appeal. However, under K.S.A. 2008 Supp. 60-206(a), intermediate Saturdays, Sundays, and legal holidays are excluded in the computation of any time period less than 11 days. August 5, 2006, was a Friday. When intervening Saturdays and Sundays are excluded from the counting, the 10th day was Friday, August 18, 2006, but Williams did not file his application for interlocutory appeal with the Clerk of the Appellate Courts until August 21, 2006. Hence, if a 3-day mailing period is not applicable, Williams' application is untimely.
The 3-day mailing rule is stated in K.S.A. 2008 Supp. 60-206(d):
"Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period."
According to Lawton, this provision does not extend Williams' time to file his application for interlocutory appeal because the plain language of K.S.A. 2008 Supp. 60-2102(c) controls and it makes no mention of service. Rather, K.S.A. 2008 Supp. 60-2102(c) specifies the application for interlocutory appeal must be filed "within 10 days after the entry of the order" allowing an interlocutory for appeal. Supreme Court Rule 4.01 (2008 Kan. Ct. R. Annot. 30) also provides that when an appeal is sought under the provisions of K.S.A. 2008 Supp. 60-2102(c), an application for permission to take such an appeal shall be served within 10 days "after the filing of the order from which an appeal is sought to be taken."
Based solely upon the language of these provisions, Lawton's argument seems sound. Nevertheless, the persuasiveness is diluted by analogous authority in which this court has applied the 3-day mailing rule even though the triggering provision did not mention service. In such cases, this court has reasoned that other statutes and rules require judges to serve orders on the parties to the litigation. See Danes v. St. David's Episcopal Church, 242 Kan. 822, 824-27, 752 P.2d 653 (1988).
In Danes, the specific question was whether the appellant had timely filed postverdict motions; the triggering action was the entry–not service–of judgment. Nevertheless, the court noted that K.S.A. 60-258 requires the clerk of the court to "'serve a copy of the judgment form on all attorneys of record within three days.'" 242 Kan. at 824. Similarly, but with broader application, Supreme Court Rule 134 (2008 Kan. Ct. R. Annot. 217) provides:
"Whenever a judge shall make a ruling on a motion or application of any kind and there are parties affected who have appeared in the action but who are not then present, either in person or by their attorneys, the judge shall cause written notice of such ruling to be sent to the parties or attorneys forthwith."
In light of these provisions, the court held that "where notice of the entry of judgment is mailed in compliance with K.S.A. 60-258 and Rule 134, the time for filing postjudgment motions or taking an appeal starts to run when the notice is mailed, and the three-day extension as provided in K.S.A. 60-206(e) applies." 242 Kan. at 827.
This holding from Danes is not directly applicable, however, because the entry of an order certifying questions for interlocutory appeal–which is the order triggering the running of the 10 days in this case–is not a judgment and K.S.A. 60-258 does not apply. Nevertheless, Rule 134, which applies to all rulings made by a judge, does. A failure to apply that rule would result in traps for the unwary, having the 3-day rule apply in some cases and not in others.
Here, although the district judge orally advised the parties of his decision to allow the interlocutory appeal during the telephone conference, the ruling was documented several days later in an order which included specific findings. The entry of this order triggered the judge's duty to "cause written notice of such ruling to be sent" (Rule 134), and also triggered the time in which the parties had to file an application for interlocutory appeal. Hence, the effect of Rule 134 is that the 3-day mailing rule of K.S.A. 2008 Supp. 60-206(d) extends the 10-day period for filing an application for interlocutory appeal under K.S.A. 2008 Supp. 60-2102(c). Applying the 3-day mailing rule in this case, Williams' application for an interlocutory cross-appeal was timely.
b. Appropriateness of Interlocutory Appeal
Lawton also argues the Court of Appeals erred in granting an interlocutory appeal. In arguing the issue, Lawton relies primarily on points made by Senior Judge Larson in his dissent. He opined that the Court of Appeals should have held that the district judge improperly certified the questions for interlocutory appeal, should have denied permission for consideration of the interlocutory appeal and cross-appeal, and should have held that such permission was improvidently granted. Williams, 38 Kan. App. 2d at 586 (Larson, J., dissenting in part); see City of Manhattan v. Eriksen, 204 Kan. 150, 155, 460 P.2d 622 (1969) (finding permission to take an interlocutory appeal was improvidently granted).
K.S.A. 2008 Supp. 60-2102(c) defines when an interlocutory appeal may be taken and provides:
"When a district judge, in making in a civil action an order not otherwise appealable under this secti