Opinion
110,168.
04-10-2015
James L. BROOKS, Appellant, v. Ryan DIXON, Travis Johnson, Brian Payne, Shannon L. Armstrong, Eric Blevins, and the City of Overland Park, Kansas, Appellees.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in Brooks v. Dixon, No. 110,168, 2014 WL 8049312 (Kan.App.2014) (unpublished opinion), filed February 14, 2014 (Brooks II ), James L. Brooks filed a petition for review. Our Supreme Court granted the petition, vacated our opinion, and remanded this case for our reconsideration in light of Whaley v. Sharp, 301 Kan. 192, Syl. ¶ 3, 343 P.3d 63 (2014), which held that the notice provisions of K.S.A.2013 Supp. 12–105b did not apply to claims against municipal employees. Having done so, and for the reasons more fully set forth below, we once again affirm the district court.
Factual and Procedural History
The facts and procedural history in Brooks' underlying municipal court convictions have been well documented by this court. Accordingly, the following facts are taken from the Court of Appeals opinion issued in Brook's direct appeal of his municipal court convictions, City of Overland Park v. Brooks, No. 108,961, 2013 WL 3970206, at *1–2 (Kan.App.2013) (unpublished opinion) (Brooks I ), rev. denied 299 Kan. –––– (February 12, 2014):
“On September 29, 2011, the City of Overland Park (City) issued Brooks a citation for violating Overland Park Municipal Code 07.26.075 (failure to maintain exterior trim in good repair) and 07.26.170 (unlawful outdoor storage at one or two family dwelling). The citation set the first appearance date/arraignment for November 8, 2011. Brooks failed to appear at arraignment, and the court issued an arrest warrant.
“Upon his arrest on January 30, 2012, Brooks executed an appearance bond in the sum of $500, secured by law upon the following condition:
“ ‘That said accused shall personally appear before the Municipal Court of Overland Park, Kansas on the 14 day of February, 2012, at 10 o'clock am; and from time to time as required by the Court to answer to the complaint against him, according to this promise to do so, which he hereby makes.’
“Brooks was able to obtain approval of the bond without surety. He appeared for his arraignment on February 14, 2012, and pled not guilty to both charges. Brooks has appeared pro se throughout the entirety of these proceedings.
“At Brooks' municipal court trial, both sides presented witnesses and arguments. On March 13, 2012, the municipal court found Brooks guilty on both counts and entered a $500 fine for each conviction. The court's journal entry also set forth the following: ‘Appearance bond on appeal is set at one thousand ninety eight dollars and fifty cents ($1098.50) [$500 for each fine and $98.50 district court docket fee].’ The court provided Brooks with a document entitled ‘Right to Appeal and Expungement.’ ...
....
“On March 19, 2012, Brooks filed a notice of appeal in Johnson County District Court appealing the judgment of the municipal court. However, Brooks did not file any type of bond. As a result, on April 13, 2012, the City filed a motion to dismiss Brooks' appeal based on jurisdictional defect. The City argued that Brooks failed to pay his appearance bond and such failure deprived the district court of jurisdiction under K.S.A. 22–3609.”
The district court dismissed the appeal, finding it lacked jurisdiction because Brooks failed to pay the appearance bond as set forth by the municipal court and as outlined in K.S.A. 22–3609. Brooks appealed, whereupon this court issued its unpublished opinion reversing and remanding Brooks' case to the district court. This court concluded the bond set by the municipal court was an appeal bond instead of an appearance bond because Brooks was not in custody and that an appeal bond was not jurisdictional. Brooks I, 2013 WL 3970206, at *7–8.
On January 17, 2013, Brooks filed a petition in the Johnson County District Court against the following defendants: (1) Judge Ryan Dixon, the municipal court judge for the City who heard Brooks' case; (2) Travis Johnson, the code inspector for the City who served the complaint upon Brooks; (3) Brian Payne and Shannon Armstrong, police officers for the City who arrested and transported Brooks to City hall; (4) Eric Blevins, the assistant city prosecutor for the City who prosecuted Brooks; and (5) the City itself (collectively the defendants). Brooks claimed jurisdiction pursuant to § 3 of the Kansas Constitution Bill of Rights, K.S.A. Chapter 60, and the Kansas Tort Claims Act (KTCA), K.S.A. 75–6101 et seq.
Highly summarized, Brooks accused some or all of the defendants of violating his constitutional rights, violating K.S.A. 12–4113 and K.S.A. 12–4602, false arrest or kidnapping, fraud, extortion, racketeering, threats and intimidation, and violating other laws. Brooks sought declaratory and injunctive relief, damages and punitive damages, and sanctions on some or all of the defendants. Brooks also asked the district court to certify a class action lawsuit.
The defendants filed a motion to dismiss and a memorandum of law in support thereof alleging, inter alia: (1) The district court lacked subject matter jurisdiction because Brooks failed to comply with conditions precedent as required by K.S.A.2013 Supp. 12–105b, (2) the petition failed to state any claim upon which relief could be granted, (3) Dixon and Blevins enjoyed absolute immunity, and (4) Payne and Armstrong enjoyed qualified immunity.
At the hearing on April 23, 2013, on the defendants' motion to dismiss, Brooks admitted he did not send notice of his claim as required by K.S.A.2013 Supp. 12–105b before filing suit. After hearing the parties' arguments, the district court dismissed all claims that could have been brought under the KTCA because Brooks failed to comply with K.S.A.2013 Supp. 12–105b ; the court took the other claims under advisement. The district court later filed a lengthy journal entry containing exhaustive findings of facts and conclusions of law dismissing Brooks' petition in its entirety. Thereafter, Brooks filed a motion to alter the judgment, which the district court denied, finding Brooks failed to show any error had occurred.
Brooks, who has appeared pro se in all proceedings, then appealed the dismissal of his petition to this court, claiming the district court erred in finding it lacked jurisdiction over any claims brought under the KTCA and in dismissing his petition in its entirety. Brooks also asserted numerous other claims on appeal, which included: (1) the unconstitutionality of K.S.A.2013 Supp. 12–105a and K.S.A.2013 Supp. 12–105b ; (2) his entitlement to declaratory judgment; (3) improper service; and (4) various other issues claimed for the first time on appeal. We summarily affirmed the district court's well-reasoned opinion on the grounds that the district court lacked jurisdiction
“to entertain any claims against a municipality or its employees without Brooks having complied with the notice requirements of K.S.A.2013 Supp. 12–105b, and the district court properly dismissed Brooks' remaining claims as they failed to state a claim upon which relief could be granted. Moreover, we [found] Brooks' other allegations of error ... to be without merit as well.” Brooks II, 2014 WL 8049312, at *1.
The Kansas Supreme Court granted Brooks' petition for review, vacated our opinion, and directed us on remand to reconsider the matter in light of the Supreme Court's recent opinion in Whaley.
Did the District Court Err in Finding it Lacked Jurisdiction Over any Claim that Could Have Been Brought Under the Kansas Tort Claims Act?
Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
Brooks alleged jurisdiction before the district court pursuant to the KTCA but, on appeal, has abandoned any attempt to invoke the KTCA and, instead, argues the KTCA does not apply because the defendants are government employees acting under the color of law—holding trials, issuing arrest warrants, imposing appeal bonds, and enforcing health codes. He argues that because private citizens cannot do these things, the KTCA does not apply.
Generally, governmental entities have immunities not available to private entities. See U.S. Const. Amend. XI. However, by passing the KTCA, the Kansas Legislature waived its sovereign immunity from suit in state court. K.S.A.2014 Supp. 75–6103(a). The KTCA is applicable to any claim against a government entity to the extent it could be “liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A.2014 Supp. 75–6103(a). Thus, liability is now the rule, and immunity is the exception. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 233, 262 P.3d 336 (2011).
Prior to filing suit, a claimant must provide written notice to the government entity pursuant to K.S.A.2014 Supp. 12–105b(d) (same as 2013 Supp.), which provides in relevant part: “Any person having a claim against a municipality which could give rise to an action brought under the [KTCA] shall file a written notice ... before commencing such action.” The written notice requirement of K.S.A.2014 Supp. 12–105b(d) is a mandatory prerequisite to bringing a tort claim against a municipality in district court. “If the statutory notice requirement is not met, the court cannot obtain jurisdiction over the municipality.” Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009).
Brooks admitted he did not provide written notice as required by K.S.A.2014 Supp. 12–105b(d). Accordingly, the district court correctly concluded it lacked subject matter jurisdiction over any claim that could have been brought under the KTCA and noted that Brooks understood the need to provide notice because previous cases filed by Brooks had been dismissed for the same reason. See Brooks v. 10th Circuit Court of Appeals, No. 10–2452–MLB, 2010 WL 3878658, at *4–5 (D.Kan.2010). The Kansas Supreme Court's recent opinion in Whaley, 301 Kan. 192, Syl. ¶ 3, holding that the “notice requirement in K.S.A.2013 Supp. 12–105b... does not apply to claims against a municipal employee,” does not affect our holding in this regard as Brooks' KTCA claims primarily assert that the City is vicariously liable for the alleged misdeeds of its employees.
“Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. [Citation omitted.] An appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiff's theory or any other possible theory. [Citations omitted.]” Campbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011).
When reviewing a motion to dismiss, we are not required to accept conclusory allegations as to the legal effects of the events if the allegations are not supported or are contradicted by the description of events. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001) (quoting Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 [1988] ).
Brooks makes the following allegations against the defendants:
(a) Judge Dixon for “violations of the Kansas Constitution Bill of Rights # 1, 9, 10, 15, 16, 18 and Kansas Statutes 12–4113 and 12–4602, for ordering a false arrest or kidnapping, routinely setting appeal bonds for infractions (which is excessive bail), creating an imprisonable debt, lieing [sic ] to defeat a challenge to a defective complaint, and other actions in and out of trial including threat and intimidation conducted for purposes of extortion and fraud and racketeering.” In support of these claims, Brooks' petition alleges Judge Dixon “had no authority whatsoever to preside over the subject matter contained in the defective complaints, and knew or should have known they were defective before he acted upon them and signed the bench warrant.” He also claims Judge Dixon committed fraud in the factum and fraud in the inducement by “using a demand for an appeal bond to deny an appeal from the municipal court.”
(b) Travis Johnson for “violation of Kansas Constitution Bill of Rights # 1 and 18 (due course of law), for routinely filing false and frivolous complaints, and for failure to exhaust his administrative remedies as enacted by the defendant City of Overland Park.” In support of these claims, Brooks' petition alleges he was not served with the complaints, summons, or notice to appear prior to his arrest, although the record revealed the notice to appear was served upon Brooks via mail as permitted by K.S.A. 12–4207. He alleged the complaints, filed by Johnson, were defective because they lacked allegations and details—such as “Who, What, Where, etc.”—and that Johnson failed to serve the complaints as required by the Code Compliance Process and, thus, failed to exhaust administrative remedies.
(c) Brian Payne and Shannon Armstrong for “violation[s] of Kansas Constitution Bill of Rights # 1 & 15 & 18, violation of due course of law, and [collusion in a] false arrest or kidnapping.” In support of these claims, Brooks' petition alleges Payne arrested him on January 30, 2012, while Brooks was on his front porch. He alleges Armstrong transported “a visibly frightened” Brooks to the City's municipal court to appear before Judge Dixon. He also alleged Payne and Armstrong should have known they were making a false arrest or kidnapping because they were working under a felony warrant, which a municipal court cannot issue.
(d) Eric Blevins for “violations of Kansas Constitution Bill of Rights # 1, 9, 10, 16, 18 and K.S.A. 12–4113 and 12–4602, failure to do any prosecutorial function except that of direct examination at trial, committing his own version of frauds to cover up defendant Ryan Dixon's fraud with a motion to dismiss on appeal with the intent to obstruct the administration of justice, and colluding with Ryan Dixon to perpetrate an imprisonable debt and judicial fraud and extortion and racketeering.” In support of these claims, Brooks' petition alleges Blevins committed fraud in the factum and fraud in the inducement by “using a demand for an appeal bond to deny an appeal from the municipal court.” Brooks also alleged Blevins abdicated his responsibility as a prosecutor by letting someone else file a complaint and contended Blevins did this to “propagate[ ] a false and frivolous prosecution ... because of his track record of failed prosecutions against Mr. Brooks in the municipal court.”
(e) City of Overland Park for “violation Kansas Constitution Bill of Rights # 1 and # 17 (citizen's enjoyment of property), their creation of a violation of the limits inherent in Kansas Constitution Article 12 § 5, and reaching to denial of due course of law (Bill of Right # 18.)” In support of these claims, Brooks' petition alleges the City created a foreign jurisdiction that was part of the executive branch and not subject to judicial review and that the warrant, upon which he was arrested, was a foreign judgment.
a. Did the petition allege any claim under the Kansas Constitution Bill of Rights?
Section 1 of the Kansas Constitution Bill of Rights pertains to equal protection. Brooks does not allege that he was treated differently than any other citizen. In fact, Brooks implies the opposite because he sought class certification. Therefore, Brooks fails to state a claim under this section. See Brooks v. Sauceda, 85 F.Supp.2d 1115, 1128–29 (D.Kan.) (dismissed by federal district court for no allegation of differential treatment), aff'd No. 00–3025, 2000 WL 1730892 (10th Cir.2000) (unpublished opinion).
Section 9 prevents excessive bail or fines and unusual punishment. Judge Dixon imposed a $500 bond and released Brooks on his own recognizance. Brooks fails to support this conclusory allegation with any facts that would support a claim under this section.
Section 10 provides a criminal defendant with the right to appear, defend, and cross-examine witnesses at trial. Brooks makes no allegation that any of these rights were violated by any of the defendants. In fact, he appeared at the municipal court trial. Brooks fails to support this conclusory allegation with any facts that would support a claim under this section.
Section 15 protects individuals from unreasonable searches and seizures. This section provides the same protection as the Fourth Amendment to the United States Constitution. Brooks complains about the validity of the arrest warrant issued by Judge Dixon and executed by Officers Payne and Armstrong.
“If a defendant fails to appear in response to a notice to appear, a warrant shall be issued.” K.S.A.2014 Supp. 12–4209(c). “[A] law enforcement officer may arrest a person under any of the following circumstances: (1) The officer has a warrant commanding that the person be arrested. (2) A warrant for the person's arrest has been issued by a municipal court in this state.” K.S.A. 12–4212(a)(1) and (2).
When an affidavit for an arrest warrant is challenged, “ ‘the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. The standard is inherently deferential.’ “ State v. Adams, 294 Kan. 171, 180, 273 P.3d 718 (2012) (quoting State v. Hicks, 282 Kan. 599, Syl. ¶ 2, 147 P.3d 1076 [2006] ).
Johnson, the code inspector for the City, served Brooks a notice to appear, via mail, for violating Overland Park Municipal Code 07.26.075 (failure to maintain exterior trim) and 07.26.170 (unlawful outdoor storage). The notice ordered Brooks to appear at the Overland Park Municipal Court on November 8, 2011. When Brooks failed to appear, Judge Dixon executed an arrest warrant. The arrest warrant was facially valid and contained a substantial basis that probable cause existed. Therefore, Brooks fails to state a claim under this section.
Section 16 states: “No person shall be imprisoned for debt, except in cases of fraud.” Brooks does not allege he was imprisoned for debt. Accordingly, he fails to state a claim under this section.
Section 17 prevents discrimination against citizens of this state and citizens of other states with regard to purchase, enjoyment, and descent of property. Brooks did not allege that he was a citizen of another state or that there had been any distinction between citizens of this state and citizens of other states. Brooks fails to state a claim under this section.
Section 18 preserves the right to civil actions recognized at common law and requires justice be administered without delay. This section does not create any right of action, Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 128, 753 P.2d 1274 (1988), and has been confined to requiring open courts and affording remedies for wrongs that are recognized by law. Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982). Brooks fails to state a claim under this section.
Finally, Brooks challenges the City's ability to adopt and enforce a municipal code. This argument is without merit. Article 12, § 5 of the Kansas Constitution and K.S.A. 17–4759 allow municipalities to adopt ordinances relating to repair, closing, demolition, or removal of structures that are unsafe, unsanitary, dangerous, or inimical to welfare of residents. Municipalities are permitted to enact ordinances so long as the subject is not preempted by the Kansas Legislature or in conflict with a state statute. McCarthy v. City of Leawood, 257 Kan. 566, 570, 894 P.2d 836 (1995) (quoting Claflin v. Walsh, 212 Kan. 1, 6–8, 509 P.2d 1130 [1973] ); accord Brooks, 85 F.Supp.2d at 1129–30.
There is nothing alleged in Brooks' petition that supports any claim for relief under the Kansas Constitution. Accordingly, the district court did not err in dismissing these claims. As noted by the district court, petitions that contain “conclusory, rambling, and incoherent allegations defying reason or logic” are subject to dismissal. See Gatlin v. Hartley, Nicholson, Hartley & Arnett, P.A., 29 Kan.App.2d 318, 321, 26 P.3d 1284 (2001).
b. Brooks' allegations of false arrest, kidnapping, lying to cover up fraud, and threat and intimidation for the purposes of extortion, fraud, and racketeering have previously been rejected by this court.
On Brooks' direct appeal of his municipal court convictions, this court rejected Brooks' allegations of false arrest, kidnapping, lying to cover up fraud, and threat and intimidation for the purposes of extortion, fraud, and racketeering. The panel held:
“[T]he municipal court complaint/notice to appear sufficiently gave Brooks notice of the violations charged and provided the municipal court with jurisdiction. The details on the citation include the time and location of the offense, the reporting officer, and an allegation that Brooks failed to maintain exterior trim in good repair violating Overland Park Municipal Code 07.26.075 and unlawful outdoor storage at a one or two family dwelling violating 07.26.170. [Brooks] was adequately informed of the essential facts constituting the crime of which he was charged. The citation was not defective.
....
“... The citation against Brooks was not defective and renders this issue moot. See State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012) (appellate courts generally do not decide moot questions). In any event, Brooks cites no authority to support his claim, and we find that Brooks was properly arrested for his failure to appear. See K.S.A.2012 Supp. 12–4209(c) (if a defendant fails to appear in response to a notice to appear, a warrant shall be issued).
....
“As for Brooks' remaining arguments, we find no merit in unsupported allegations of racketeering, fraud, and prejudice by the municipal or district court's actions in this case.” Brooks I, 2013 WL 3970206, at *3, 7.
Does Brooks Assert any Other Meritorious Issues on Appeal?
Constitutionality of K.S.A.2014 Supp. 12–105a and K.S.A.2014 Supp. 12–105b
Brooks also argues the notice requirements of K.S.A.2014 Supp. 12–105a and K.S.A.2014 Supp. 12–105b are unconstitutional because they are vague and ambiguous. Brooks failed to raise this issue below, which generally precludes our review of such claims. See State v. Reyna, 290 Kan. 666, 689, 234 P.3d 761, cert. denied 131 S.Ct. 532 (2010). However, even if he had timely raised his constitutional challenge, we are unpersuaded by Brooks' argument.
First, Brooks raises no specific complaint as to why he thinks K.S.A.2014 Supp. 12–105a is vague and unambiguous other than a statement that “[t]he definitions and procedures just don't work together.” We disagree. K.S.A.2014 Supp. 12–105a simply provides definitions to various terms such as “municipality” and “governing body” which we find helpful when such terms are used in K.S.A.2014 Supp. 12–105b.
Second, K.S.A.2014 Supp. 12–105b(d) states in part: “Any person having a claim against a municipality which could give rise to an action brought under the [KTCA] shall file a written notice as provided in this subsection before commencing such action.” (Emphasis added.) Brooks contends the Kansas Bar mistakenly interprets “any” in K.S.A.2014 Supp. 12–105b(d) to mean “all.” He argues: “ ‘[A]ll’ doesn't include all. And ‘any’ is a defective legal term because it doesn't include the quantity of Zero (0).” Unfortunately, Brooks cites no authority to support his interpretation of K.S.A.2014 Supp. 12–105b(d), and we are unpersuaded by his argument that K.S.A.2014 Supp. 12–105a and K.S.A.2014 Supp. 12–105b are unconstitutional.
Declaratory relief
A district court can issue a declaratory judgment declaring “the rights, status, and other legal relations” of parties. K.S.A. 60–1701.
Brooks requested the district court to declare Judge Dixon had no immunity against damage claims in either his official or individual capacity. The district court declined to address whether Judge Dixon had immunity because it dismissed Brooks' petition for failure to state a claim upon which relief could be granted. Because Brooks failed to request the district court's ruling on this point in his motion to reconsider, this issue is not properly before this court. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P .3d 516 (2011).
Brooks requested the district court to issue a declaratory judgment against Payne and Armstrong “for committing a false arrest or kidnapping knowing or they should have known the warrant was invalid on its face (every police officer is expected to know some law).” As we have already explained, the complaints served on Brooks via mail were valid. Accordingly, Brooks' argument is without merit.
Brooks requested declaratory relief against Johnson because “the ordinances that he has been enforcing are of foreign jurisdiction and are in violation of the constitutional checks and balances and lack notices of rights to appeal and lack a process of appeal and are unconstitutional as enacted by the city council and mayor.” Brooks challenges the City's ability to adopt and enforce a municipal code. Article 12, § 5 of the Kansas Constitution and K.S.A. 17–4759 allow municipalities to adopt ordinances relating to repair, closing, demolition, or removal of structures that are unsafe, insanitary, dangerous, or inimical to the welfare of residents. Municipalities are permitted to enact ordinances so long as the subject is not preempted by the Kansas Legislature or in conflict with a state statute. McCarthy, 257 Kan. at 570 (quoting Claflin, 212 Kan. at 6–8 ); accord Brooks, 85 F.Supp.2d at 1129–30. The City did not violate the Kansas Constitution by enacting its housing code ordinances, and the district court was correct in not enjoining Johnson from enforcing them.
Brooks requested declaratory judgment to direct Blevins to train Johnson “how to write a true criminal complaint subject to district court oversight.” As indicated above, the complaints served on Brooks via mail were valid. Accordingly, we see no reason to grant Brooks request.
Last, Brooks requested declaratory judgment against the City because “the present community code ordinances are outside the scope of the police powers of Kansas Constitution Article 12 § 5 for having no checks and balances, no rights of appeal, and no notices of rights to appeal, and are struck down [sic ]” and various building codes were an excuse to violate citizens' property rights. Like his earlier constitutional arguments against these ordinances, Brooks fails to develop these claims in his petition or cite pertinent authority. Accordingly, this claim is similarly without merit.
Injunctive relief
Brooks requested injunctive relief against Judge Dixon for allowing “foreign judgments to be routinely filed in his court.” A party seeking injunctive relief must show:
“ ‘ ‘ “(1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest.’ “ [Citations omitted.]' “ Steffes v. City of Lawrence, 284 Kan. 380, 395, 160 P.3d 843 (2007).
As Brooks failed to establish the above elements, the district court correctly dismissed Brooks claim for injunctive relief.
Moreover, as the defendants point out, to the extent Brooks sought injunctive relief from the enforcement of the municipal code violations, those ordinances were already enforced against him and there was no longer a case or controversy when Brooks filed his civil case. “Kansas courts are constitutionally without authority to render advisory opinions, and a court's jurisdiction to issue an injunction is dependent upon the existence of an actual case or controversy.”Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009).
Last known address
Brooks argues Johnson failed to serve him at his last known address, claiming he had never lived at 7310 West 64th Street, the address where Johnson allegedly served him. As we have already discussed, the complaints were facially valid. If Brooks wanted to challenge the address listed on the complaint, he should have done so in the underlying municipal court case. See Wolfe Electric, Inc., 293 Kan. at 403.
Simulating legal process
Brooks argues that Judge Dixon, Blevins, and Johnson are guilty of simulating legal process. Specifically, Brooks alleges Judge Dixon set a fraudulent appeal bond, Johnson filed a defective complaint, and Blevins fraudulently filed a motion to dismiss. Brooks further comments: “[T]hese defendants associated with the municipal trial are criminals, and they are civilly liable.”
The elements of simulating legal process are: distributing to another any document which simulates or purports to be, or is designed to cause others to believe it to be, a summons, petition, complaint, or other legal process, with the intent to mislead and cause the recipient to take action in reliance thereon. K.S.A.2014 Supp. 21–5907(a). Again, because we have already held that the complaints served upon Brooks via mail were valid, none of the defendants engaged in simulating legal process.
Other allegations raised on appeal
On appeal, Brooks asserts the district court abused its discretion by denying his motion to alter or amend the judgment. He accuses the district judge of: (1) lying about negligence claims being found in K.S.A.2014 Supp. 12–105a or K.S.A.2014 Supp. 12–105b ; (2) being incompetent because the judge allegedly made his decision before hearing the parties' argument; (3) angrily canceling a case management conference; (4) taking 5 weeks to issue an order on the motion to dismiss, wherein the judge directly attacked the plaintiff; (5) being a rogue judge because he requested the parties to send electronic copies of the parties' motions and memorandums of law; and (6) being incompetent, ignorant of the law, and prejudicial against pro se litigants. Brooks also alleges that Kansas Constitution Bill of Rights § 1 should be amended to add, “Constitutional rights violations, often labeled as constitutional torts, are not controlled by either FTCA or the KTCA.”
As Brooks failed to assert these conclusory allegations before the district court, they are not properly before us for review. See Wolfe Electric, Inc., 293 Kan. at 403. Moreover, Brooks fails to cite to the record or to applicable caselaw to support his broad attack upon the district judge hearing his case. Failure to support a point with pertinent authority or to show why it is sound “despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue.” State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
Moot questions raised on appeal
Brooks also argues: “[A]n angry judge's attempt to smear the plaintiff in this case actually vindicate[s] the plaintiff in a previous case.” It appears Brooks now questions the validity of federal court opinions where he was a party in light of the allegations and decision in this case. If Brooks is asking us to overrule prior federal court decisions, such relief is beyond our power to grant.
Brooks also raises the issue of whether the findings of fact and conclusions of law in this case are helpful to his underlying municipal court convictions. Brooks argues the defendants now admit that Johnson filed defective complaints. Our review of the record does not substantiate Brooks' claim that the defendants have admitted the complaints were defective, and we have already determined the complaints were valid. Brooks I, 2013 WL 3970206, at *3. As to the validity of Brooks' municipal court convictions, they cannot be invalidated in the present action while they are pending before the district court. See City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, Syl. ¶ 5, 264 P. 68 (1928).
Affirmed.