STATE EX REL. STATE BOARD OF HEALING ARTS v. BeyrleSTATE EX REL. STATE BOARD OF HEALING ARTS v. Beyrle
LARSON, J.:
This is an attempted interlocutory appeal taken by Stanley W. Beyrle from the trial court‘s order of partiаl judgment finding
The State of Kansas, on relation of the State Board of Healing Arts, sued naturopath Beyrle, contending he violated the Healing Arts Act by using the designation N.M.D. in connection with his name, by issuing an order for a prescription-only drug, and by engaging in a system to diagnose, ascertain, cure, relieve, palliate, adjust, or correct any humаn disease, ailment, deformity, or injury. The Board requested that Beyrle be prohibited by injunction or quo warranto from engaging in acts in violation of the Healing Arts
In his answer, Beyrle contended he was permitted by
Thе Board then moved for partial judgment on the pleadings, contending
The trial court found Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980), controlling and declared the statute to be unconstitutional in violation of
Although the order stated “the Court grants Defendant‘s motion for permission to take an interlocutory appeal,” the trial court did not, as required by
Beyrle filed a timely notice of appeal. However, his docketing statement alleged the order appealed from was a final order. In answer to the question of whether the district court directed an entry of a judgment in accordance with
In response to our order to show сause as to why we should not dismiss the appeal as not being from a final judgment, Beyrle now suggests we have jurisdiction under
The journal entry of partial judgment on the pleadings is not a final order.
The apparent basis for jurisdiction for this appeal is
It is clear from the pleadings, the motion for partial judgment, and the journal еntry of judgment that the order appealed from was not a final judgment as required by
In Honeycutt v. City of Wichita, 251 Kan. 451, 457, 836 P.2d 1128 (1992), we quoted from Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975):
“`No definition of “finаl decision” is contained in the statute but this court has previously construed it to mean, “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” [Citations omitted.]‘”
Honeycutt cites 6 Vernon‘s Kansas C. Civ. Proc. § 60-2102, Author‘s Comments, § 2102.2 (1967) and 2 Gard‘s Kansas C. Civ. Proc.2d Annоt. § 60-2102, Comments (1979), and states: “In Gard, the author commented that a `‘final decision’ ... is really selfdefining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.‘” 251 Kan. at 457.
Rather than terminating a right or liability in the present case, the trial court‘s order established the possibility of а legal liability that still required further factual and legal adjudication. The journal entry of judgment dated August 1, 1996, is not a final judgment.
Because the order attempted to be appealed from is not a final judgment, this might bring into consideration the provisions of
As the order is not a final judgmеnt, it is not the proper subject of an appeal unless the requirements for requesting a discretionary appeal were followed. Because no attеmpt was made to follow
The order does not grant injunctive or quo warranto relief.
Beyrle now attempts to argue that we have jurisdiction of his appeal as a matter of right because it is from an order granting
“(a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
(2) An order that grants, continues, modifies, refuses or dissolves an injunction, or an ordеr that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus.”
First, we point out that this statute grants jurisdiction to the Court of Appeals, not the Supreme Court. Second, although the Board‘s original petition does seek injunctive or quo warranto relief, the journal entry of the partial judgment does not grant either tyрe of relief. The order was simply declaratory and does not enjoin Beyrle from practicing naturopathy. All the order does is put Beyrle on notice that “thе practice of naturopathy is no longer authorized by statute, and that all activity within the purview of the healing arts act must cease until such time as the legislature аppropriately grants the authority.”
We do not construe this wording as a grant of either quo warranto relief or an injunction. The court had not made any determination that Beyrle was engaging in the practice of naturopathy and specifically stated that it reserved judgment on whether he had exceeded his statutory authority. Rather than invoking any existing powers if Beyrle continued to engage in naturopathy, the court simply placed him on notice that future practice of naturopаthy would make him subject to charges of violating the Healing Arts Act.
The court did not declare that it was granting the Board‘s request in its original petition to enjoin Beyrle, nor did the Bоard‘s motion requesting partial judgment on the pleadings request such relief. Thus,
No other provision appears to confer jurisdiction on us, and none is cited by Beyrle. We do not have jurisdiction over the attempted appeal, which is therefore dismissed.