1 

NOT DESIGNATED FOR PUBLICATION 

No. 126,163 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS 

JOHNSON COUNTY COMMUNITY COLLEGE, 

Appellant,

v. 

AARON PRATER, 

Appellee.

MEMORANDUM OPINION 

Appeal from Johnson County District Court; JAMES F. VANO, judge. Submitted without oral 

argument. Opinion filed November 17, 2023. Appeal dismissed. 

Derek T. Teeter and Michael T. Raupp, of Husch Blackwell LLP, of Kansas City, Missouri, for 

appellant.

Vincent M. Cox, of Cavanaugh, Biggs & Lemon, P.A., of Topeka, for appellee.

Before MALONE, P.J., CLINE and COBLE, JJ. 

PER CURIAM: This is an administrative appeal from a decision impacting the 

employment of culinary instructor Aaron Prater at Johnson County Community College 

(JCCC). The district court remanded the case to the administrative hearing officer for 

additional findings and JCCC appealed that order to this court. This court issued a showcause order directing the parties to show cause why the appeal should not be dismissed as 

interlocutory. For the reasons stated in this opinion, we find that JCCC's appeal to this 

court should be dismissed without prejudice. 
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FACTS

JCCC sent Prater a letter notifying him that JCCC intended to terminate his 

employment. The letter stated that Prater's "manner of dealing with issues of 

miscommunication [caused] hostility and discomfort for [his] coworkers." Several 

examples were provided in the letter. After JCCC provided Prater with notice and its 

reasons for termination, he timely invoked his right to a hearing under K.S.A. 72-2251, et 

seq.

The administrative hearing officer believed the question to be determined in the 

proceedings was whether substantial evidence supported the truth of the statements in the 

letter. The hearing officer defined "substantial evidence" as evidence that "possesses 

relevance and substance in such quality that a reasonable person would accept it as 

adequate to support the conclusion." After reviewing the evidence, the hearing officer 

found that Prater was "a skilled chef and a good teacher," but that he had "shortcomings 

in his anger control" and also "failed to engage in constructive conflict resolution." The 

hearing officer concluded that "[t]he stated reasons for termination [were] not supported 

by substantial evidence when considered in light of the record as a whole, with the 

exception of Mr. Prater's demeanor when presenting concerns or complaints." The 

hearing officer ordered that Prater be conditionally reinstated for a one-year probationary 

period during which Prater needed to engage in anger management and show 

improvement in his communications. JCCC appealed to the district court.

The district court vacated the hearing officer's decision and remanded the case to 

the administrative agency for further proceedings. The district court found that the 

hearing officer erred in two ways. First, the district court ruled that the law did not permit 

the hearing officer to change the terms of the contract between JCCC and Prater by 

establishing the one-year probationary period. Instead, the hearing officer had "only two 

options: affirm the termination or order reinstatement." Second, the district court held 
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that the hearing officer misapplied the standard of review and, by doing so, 

impermissibly increased JCCC's burden of proof. The hearing officer "defined 

'substantial evidence' as requiring [JCCC] to show that a reasonable person 'would accept' 

such evidence as adequate, whereas the controlling authority . . . indicates the standard is 

that a reasonable person 'might accept' the evidence as adequate." The district court found 

it "impossible to discern whether with a correct burden applied [the hearing officer] 

would have found more grounds sustained and more foundation for a good cause 

termination." The district court concluded that, since it was "unable to do its own 

factfinding, it [could] only question the bases for the hearing officer's decision." The

district court found that it had to "vacate the ruling and remand the matter to the hearing 

officer for further consideration under a correct standard of law."

Rather than allowing the case to be returned to the administrative agency, JCCC 

timely filed a notice of appeal. This court issued a show cause order to the parties asking 

them to brief whether this court has jurisdiction over the appeal.

ANALYSIS

JCCC claims that this court has jurisdiction over the appeal under K.S.A. 2022 

Supp. 60-2102(a)(4), which grants this court jurisdiction over "[a] final decision in any 

action." JCCC argues that Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 

967 P.2d 759 (1998), governs resolution of the question here. Alternatively, if this court 

finds Humphreys is not controlling, JCCC argues that exceptional circumstances permit 

consideration of this appeal. Prater contends that this appeal should be dismissed as 

interlocutory based on this court's decisions in Holton Transport, Inc. v. Kansas

Corporation Comm'n, 10 Kan. App. 2d 12, 690 P.2d 399 (1984), Nickels v. Board of 

Education of U.S.D. No. 453, 38 Kan. App. 2d 929, 173 P.3d 1176 (2008), and In re 

Licensure of Shelly Ann Vandevord Day Care Home, No. 123,827, 2022 WL 1701598 

(Kan. App. 2022) (unpublished opinion).
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The right to appeal is entirely statutory and is not contained in the United States or 

Kansas Constitutions. Wiechman v. Huddleston, 304 Kan. 80, 86, 370 P.3d 1194 (2016). 

Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken 

in the manner prescribed by statutes, with some exceptions. In re T.S., 308 Kan. 306, 309, 

419 P.3d 1159 (2018). The appellate court has a duty to question jurisdiction on its own 

initiative. When the record discloses a lack of jurisdiction, the appellate court must 

dismiss the appeal. Baker v. Hayden, 313 Kan. 667, 673, 490 P.3d 1164 (2021). Whether 

jurisdiction exists is a question of law, subject to unlimited appellate review. City of 

Wichita v. Trotter, 316 Kan. 310, 312, 514 P.3d 1050 (2022).

Discussion of applicable caselaw

JCCC contends that this case is like Humphreys, 266 Kan. 179. There, the Kansas 

Department of Transportation (KDOT) terminated the employment of Roberta 

Humphreys. Humphreys appealed to the Kansas Civil Service Board (Board). The Board 

found that the evidence supported KDOT's basis for terminating Humphreys but found 

that termination was an excessive punishment. The Board modified the punishment to 

suspension without pay for a specified time and a demotion. KDOT appealed the Board's 

decision to the district court, arguing that the Board lacked statutory authority to modify 

its punishment. The district court agreed with KDOT, finding that the Board's jurisdiction 

was limited to determining whether the termination was reasonable. 266 Kan. at 180. The 

district court remanded the case to the Board to either affirm or reverse Humphreys' 

dismissal. Humphreys filed a notice of appeal to the Court of Appeals on April 7, 1997, 

claiming that the Board had authority to modify the agency's disciplinary decision. 266 

Kan. at 181. The appeal was later transferred to the Kansas Supreme Court. Meanwhile, 

in light of the district court's remand order, the Board reconsidered its prior actions. In a 

May 1, 1997, final order, the Board determined that KDOT's dismissal of Humphreys 

was reasonable. 266 Kan. at 181.
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The only jurisdictional question the Supreme Court addressed was whether the 

Board's second order affirming Humphreys' dismissal impaired the Supreme Court's 

jurisdiction to hear Humphreys' appeal. 266 Kan. at 182. The Supreme Court found that 

the Board did not have jurisdiction to enter its second order after Humphreys had 

appealed the district court's remand order. 266 Kan. at 182. As for the district court's 

remand order, the Supreme Court stated, without elaboration, that it had jurisdiction to 

hear the appeal because "[t]he district court's decision was final." 266 Kan. at 181. 

Ultimately, the Supreme Court held that the district court erred when it found that the 

Board lacked authority to modify the agency's action. 266 Kan. at 184.

Humphreys can be contrasted with Holton Transport, 10 Kan. App. 2d 12. There, 

Holton Transport, Inc. appealed "from a district court order remanding the matter to the 

Kansas Corporation Commission for a more specific and concise statement of its 

findings." 10 Kan. App. 2d at 12. This court framed the question as "whether the court's 

order of remand for further findings of fact is an appealable order." 10 Kan. App. 2d at 

12. The court stated that "absent exceptional circumstances, a district court order 

remanding a proceeding to [an agency] for further findings is not a final decision 

appealable as of right under K.S.A. 60-2102(a)(4)." 10 Kan. App. 2d at 13.

Nickels, 38 Kan. App. 2d 929, followed Holton Transport. When Unified School 

District 453 notified Leslie Nickels that her teaching contract would not be renewed, she 

requested a hearing with the Board of Education (Board) under K.S.A. 72-5446. The 

Board denied Nickels' request for a hearing. Nickels appealed to the district court, and the 

district court ordered the Board to provide Nickels with a due process hearing. The Board 

appealed. This court issued a show cause order asking the parties why the appeal should 

not be dismissed as interlocutory. 38 Kan. App. 2d at 930. Nickels relied on Holton 

Transport, 10 Kan. App. 2d 12, and contended that the matter required further factual 

findings. The Board argued "that because no findings h[ad] been made and no hearing 

held in this case, the appeal must be retained." 38 Kan. App. 2d at 931. This court agreed 
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with Nickels, concluding "that because the due process hearing ordered by the district 

court has not yet been conducted, the Board's appeal to this court is not a final, 

appealable order." 38 Kan. App. 2d at 932.

In reaching its conclusion, the Nickels court found that the most analogous case 

was NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838, 925 P.2d 835 (1996). There, National 

Education Association-Topeka (NEA-Topeka), a union which represented employees of 

Unified School District 501 (U.S.D. 501) under a bargaining agreement, instituted a 

grievance on behalf of several individuals. U.S.D. 501 refused to recognize or process the 

grievance because it believed the individuals were not members of the bargaining unit 

covered by the agreement. U.S.D. 501 refused to arbitrate the issue on the same basis. 

NEA-Topeka filed suit seeking to force U.S.D. 501 to submit to arbitration. The district 

court found that the agreement provided matters affecting the application or interpretation 

of the agreement had to be submitted to arbitration. Because determining whether the 

individuals were members of the bargaining unit involved application or interpretation of 

the agreement, the district court ordered U.S.D. 501 to submit to arbitration.

U.S.D. 501 appealed and the case was transferred to the Kansas Supreme Court. 

The Supreme Court sua sponte raised the issue of whether the arbitration order was a 

final, appealable order. The Supreme Court concluded that the district court's arbitration 

order was not a final, appealable order. Although the Kansas Uniform Arbitration Act did 

not apply to the agreement at issue, the court looked to the Act for guidance. The court 

noted that under the Act, orders compelling arbitration were not appealable. 260 Kan. at 

841-42. The court next noted that such a rule adhered to other rules on final, appealable 

orders. 260 Kan. at 843. For example, an order granting a new trial is not a final, 

appealable order. Similarly, an order remanding an administrative proceeding to an 

administrative agency for additional fact-finding was not a final, appealable order. And 

an order denying a motion for summary judgment is not a final, appealable order unless 

the district court simultaneously grants an opposing motion for summary judgment. 260 
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Kan. at 843. The court concluded that "[t]he general rule is that to be final, an order must 

finally decide and dispose of the entire merits of the controversy, reserving no further 

questions or directions for the future or further action of the court." 260 Kan. at 843.

In re Licensure of Shelly Ann Vandevord Day Care Home, 2022 WL 1701598, is 

another case that followed Holton Transport. In that case, the Kansas Department of 

Health and Environment (KDHE) notified Shelly Ann Vandevord that it intended to 

suspend her license to operate a daycare based on inspections that had occurred between 

March 2018 and March 2019. Vandevord requested a hearing before an administrative 

law judge (ALJ). The KDHE conducted two additional inspections in April 2019. Noting 

that some of the earlier violations had not been corrected, KDHE moved to modify its 

intended order from suspension to revocation. The ALJ granted the motion and, 

following an administrative hearing in January 2020, affirmed the revocation order. The 

KDHE performed no other inspections after April 2019. Vandevord exhausted her 

administrative appeals and then appealed to the district court. 2022 WL 1701598, at *1.

The district court conducted a hearing in December 2020. The district court 

believed the record did not support revoking Vandevord's license at the December 2020 

hearing because there had been no agency follow-up after the April 2019 inspections.

Thus, the district court remanded the case to the KDHE to do additional fact-finding, 

specifically, to perform further inspection of Vandevord's day care. The KDHE appealed, 

and this court ordered the parties to show cause why the appeal should not be dismissed 

for lack of a final, appealable order. The KDHE argued that exceptional circumstances 

permitted the appeal based on the collateral order doctrine. This doctrine provides that an 

appellate court can consider an order to be a final decision under certain circumstances—

"the order must (1) conclusively determine the disputed question, (2) resolve an 

important issue completely separate from the merits of the action, and (3) be effectively 

unreviewable on appeal from a final judgment." Skahan v. Powell, 8 Kan. App. 2d 204, 

206, 653 P.2d 1192 (1982). But the Vandevord court rejected this argument because the 
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district court "left open the ultimate question of whether Vandevord's license would be 

revoked." 2022 WL 1701598, at *5. The court also found that any errors made by the 

district court could be "remedied in a subsequent appeal." 2022 WL 1701598, at *5.

Applying the law to our facts

We disagree with JCCC that Humphreys is controlling. The Humphreys court did 

not analyze whether the district court's remand order was a final appealable order. 

Instead, the only jurisdictional question the Humphreys court addressed is whether the 

Board's second order affirming Humphreys' dismissal after she had appealed the district 

court's decision impaired the Supreme Court's jurisdiction to hear Humphreys' appeal. 

266 Kan. at 182. In any event, in Humphreys, the Board made its factual findings under 

the correct legal standard—an important distinction that does not exist here that may have 

allowed for the district court's remand order to be a final appealable order.

JCCC argues that the cases relied on by Prater are distinguishable because in each 

of those cases the district court remanded the case to the agency for additional factfinding, but "[h]ere, the district court remanded for the hearing officer to apply the 

correct legal standard. It did not order a new hearing, more investigation, or more 

factfinding." But JCCC's argument misses the point. The district court ordered the 

hearing officer to apply a different legal standard in determining whether substantial 

competent evidence supports JCCC's decision to terminate Prater. To do this, the hearing 

officer will need to act in its role as fact-finder which entails weighing the evidence and 

assessing witness credibility. As the district court stated, it is "impossible to discern 

whether with a correct burden applied [the hearing officer] would have found more 

grounds sustained and more foundation for a good cause termination." The district court 

concluded that since it was "unable to do its own factfinding, it [could] only question the 

bases for the hearing officer's decision."
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Put another way, applying the correct standard of review may result in different 

factual findings by the hearing officer. The standard of review applied by the hearing 

officer led the hearing officer to conclude that substantial evidence supported only one of 

JCCC's reasons for terminating Prater, but this reason did not amount to good cause to 

terminate Prater. If the hearing officer applies a more liberal standard of review as 

ordered by the district court, the hearing officer may conclude that more of JCCC's 

reasons for terminating Prater were supported by substantial evidence and that they 

provided good cause for terminating Prater. To reach its conclusion on these subjects, the 

hearing officer will need to perform its function as fact-finder to weigh the evidence and 

assess witness credibility—functions that appellate courts cannot perform.

"The general rule is that to be final, an order must finally decide and dispose of the 

entire merits of the controversy, reserving no further questions or directions for the future 

or further action of the court." NEA-Topeka, 260 Kan. at 843. Under the circumstances

here, the district court's remand order was not "[a] final decision in any action" that is 

subject to a direct appeal under K.S.A. 2022 Supp. 60-2102(a)(4).

JCCC makes an alternative argument that exceptional circumstances permit

review of its appeal. JCCC asserts that it is "entitled to have its termination decision 

upheld now, on the case as it stands, and irrespective of anything that may happen on 

remand." JCCC reasons that the hearing officer found substantial evidence supporting 

one of the grounds JCCC listed for terminating Prater—specifically that Prater "was 

inappropriate and did not communicate well with staff and with other faculty." JCCC 

notes that both JCCC policy and Prater's employment agreement provided that JCCC 

could terminate Prater for failing to engage in constructive conflict resolution. JCCC 

argues that if this court dismisses the appeal and forces JCCC to continue litigating the 

case, "the injury of having to endure further proceedings on remand cannot be cured in a 

subsequent appeal because the injury will have already occurred."
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JCCC's argument is unpersuasive. The costs of continued litigation are not an 

exceptional circumstance. To the contrary, they would exist in any case where this court 

declines to hear a piecemeal appeal. For example, in NEA-Topeka v. U.S.D. No. 501, 260 

Kan. 838, the parties needed to submit to arbitration before appealing even though U.S.D.

501 argued that arbitration was inappropriate. Similarly, a party cannot appeal from an 

order granting a new trial even if that party argues that the order granting the new trial 

was erroneous. 260 Kan. at 843. The district court's order is also not a collateral order 

that would support a finding of exceptional circumstances. The question of whether 

JCCC's termination of Prater should be upheld is at the heart of this action, it is not 

"completely separate from the merits of the action." Skahan, 8 Kan. App. 2d at 206. 

Additionally, the issue can be reviewed on appeal after a final judgment is entered.

In sum, the district court remanded this case to the hearing officer for further 

consideration under the correct standard of review. Applying the correct standard of 

review may result in different factual findings by the hearing officer. For all we know, 

both parties may be satisfied with the hearing officer's resolution of the case, rendering 

any other appeals to the district court or to this court unnecessary. Allowing JCCC to 

bring its appeal to this court in the current posture of the case "is inconsistent with the 

clearly stated Kansas policy to avoid piecemeal appeals." Harsch v. Miller, 288 Kan. 280, 

288, 200 P.3d 467 (2009). Though we base our ruling primarily on lack of jurisdiction, 

we also find that JCCC's appeal to this court is contrary to Kansas policies against 

piecemeal appeals and against addressing issues that are not ripe for decision. For these 

reasons, we dismiss JCCC's appeal to this court without prejudice.

Appeal dismissed without prejudice.