Opinion
111,505.
05-29-2015
Stuart N. AULD, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, American Family Insurance Group of Madison, WI, Appellee.
Stuart N. Auld, appellant pro se. Michael P. Waddell, of Kansas City, Missouri, for appellee.
Stuart N. Auld, appellant pro se.
Michael P. Waddell, of Kansas City, Missouri, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is a breach of contract case that Stuart Auld brought against American Family Mutual Insurance Company, his deceased father's homeowner's insurance company. Auld claimed that American Family breached its contract by refusing to pay him on two separate claims: (1) a June 13, 2010, claim for water damage; and (2) a November 15, 2011, claim for theft. Stuart appeals from the jury verdict finding in favor of American Family.
Several significant violations of the Supreme Court Rules hinder us from reaching the merits of Stuart's appeal. First, Stuart asserts various points of error, but it is very difficult to ascertain his issues. His brief fails to comply with Supreme Court Rule 6.02(a)(3) (2014 Kan. Ct. R. Annot. 41), which requires “[a] brief statement, without elaboration, of the issues to be decided in the appeal.” The brief contains 48 pages of argument in numbered paragraphs without a clear outline or table of contents identifying the issues presented. Additionally, the facts in Stuart's brief are not keyed to the record as required by Rule 6.02(a)(4). Stuart failed to identify the issues raised and provide factual citations and caselaw support for each of those issues.
Second, the errors asserted are trial errors, but a complete trial transcript is not included in the record on appeal. The record on appeal is very scarce. Although there was a 3–day trial, the partial trial transcript included in the record on appeal consists of only one witness and Stuart's rebuttal testimony to that witness. The record is insufficient to review Stuart's claims. It is the appellant's burden to designate a record sufficient to support his claim of errors. See Supreme Court Rule 3.03 (2014 Kan. Ct. R. Annot. 23).
Finally, Stuart attaches documents to his brief that are not included in the record on appeal, which we will not consider. See Supreme Court Rule 6.02(b) ; Romkes v. University of Kansas, 49 Kan.App.2d 871, 886, 317 P.3d 124 (2014) (inclusion of additional information in appendix to appellate brief insufficient to make it part of record for review).
Facts
American Family insured the residence of Stuart's father, John Auld, Sr., at the address of 9135 Manor Road, in Leawood, under policy number 15–DS4327–01. Stuart lived in the basement of the residence. John Auld, Sr., died on October 16, 2011, and Stuart continued to live at the residence after his father's death.
John Auld, Sr., made a claim for water damages in the basement after an incident on June 13, 2010. On June 23, 2010, American Family paid in full the policy limit of coverage under the “Sewer and Sump Pump Overflow Coverage Endorsement” in addition to the coverage for debris removal for a total payment of $10,500.
Stuart made two separate claims under the policy for two unrelated incidents: (1) Stuart filed a claim seeking supplemental reimbursement for the water damage in the basement caused by the incident in June 2010; and (2) Stuart made a theft claim for personal property that was discovered missing in November 2011 after the death of his father.
On May 23, 2012, American Family sent a letter to Stuart informing him that payment for the water damages had been made directly to John Auld, Sr., and that “[a]ny further issues regarding this claim should be directed to the Catastrophe Department.” As to the theft claim, American Family noted that it had been in contact with the trustee for John Auld, Sr.'s estate, and the estate was not making any claim for the theft of personal property. American Family noted that the insurance policy had a written clause prohibiting assignment of the policy unless the insurer gave written consent. Finally, American Family noted that the claim was closed because “there is no evidence that a theft has occurred and that the Estate of John W. Auld Sr. does not want to pursue a claim under the policy in question.”
Stuart filed suit against American Family based on its decision not to pay his claims, asserting breach of contract and vexatious refusal to pay. In October 2012, Stuart hired counsel to represent him on his claims.
Discovery was conducted, and a pretrial order was entered on May 24, 2013. Stuart claimed that he was an insured under the terms of the insurance policy because he was a relative living in the household. Stuart alleged breach of contract and the implied covenant of good faith and fair dealing for American Family's refusal to pay or settle his claims. In addition, Stuart claimed defamation based on an allegation of elder abuse.
In defense of the lawsuit, American Family denied that Stuart qualified as an insured under the policy. But even if he was an insured, American Family denied liability for the claims made. American Family noted that the claim for water damages had been settled and paid under the terms of the policy when John Auld, Sr., accepted and reconciled payment in the amount of $10,500. American Family contended that Stuart's claim for defamation was barred because Stuart had failed to establish that any person insured under the policy committed any conduct which could be interpreted as giving rise to a defamation claim. Finally, American Family claimed that Stuart's theft claim was barred because: (1) Stuart was not residing in the household after John Auld, Sr.'s death, noting that Stuart was the subject of an eviction/forcible detainer action entitled John Auld, Sr. v. Stuart Auld to remove Stuart from the property; (2) Stuart failed to show that a theft occurred; and (3) Stuart's conduct in regard to the John W. Auld, Sr., Living Trust Agreement and the Last Will and Testament of John W. Auld, Sr., disqualified Stuart's claim to the items that he alleges were stolen.
A jury trial was held on July 15–18, 2013. A complete transcript of the jury trial has not been included in the record on appeal. The partial record includes only the testimony of one witness, John Hammond, and rebuttal testimony from Stuart regarding Hammond's testimony.
At trial, Stuart was represented by counsel. The jury rendered a verdict finding that Stuart was an insured under his father's insurance policy, but the jury found no breach of the policy and found that Stuart was not entitled to judgment under either his claim for water damages or theft loss. After the verdict, Stuart's counsel was granted leave to withdraw.
Once again acting pro se, Stuart timely filed posttrial motions entitled “Motion for Summary Judgment Notwithstanding the Verdict and/or Judgment as a Matter of Law and/or Motion to Alter or Amend the Judgment or Alternatively, Motion for New Trial Due to Fraudulent Concealment/Withholding of Evidence and Fraud Upon the Court” and “Supplemental Motion to Compel and Motion to Reopen Discovery of Evidence Withheld from Jury and The Court or Alternatively Include All Issues in New and/or Additional Proceedings” under K.S.A.2014 Supp. 60–250, K.S.A.2014 Supp. 60–259, and K.S.A.2014 Supp. 60–260. Stuart's claims for posttrial relief appeared to be based on three main issues: (1) the jury's verdict was not supported by the evidence; (2) there was evidence that Stuart believed should have been presented to the jury, apparently by American Family; and (3) there was error in the jury instructions that were submitted or should have been submitted.
The district court held a hearing on the posttrial motions on January 28, 2014. The district court noted a delay in ruling on the motions which the court attributed to Stuart's failure to seeking a hearing on his motion. After hearing and considering arguments of the parties, the court denied the posttrial motions.
The district court addressed each of Stuart's complaints as argued in his posttrial motions for relief. First, the district court noted that Stuart asserted fraud on the court because certain evidence was not presented as evidence at trial. He complained that the insurance agent was not called as a witness and the claims adjustor's report was not introduced into evidence, but neither party attempted to call the witness or proffer the evidence. Stuart argues that if such evidence had been presented the result of the trial would have been different. The district court concluded:
“The Court cannot consider evidence that was not ‘withheld’ from the plaintiff. Both parties had the opportunity to conduct discovery, offer evidence and call witnesses. The failure of the plaintiff to offer the evidence he now says was critical to a different result provides no basis for post trial relief and fails to come remotely close to presenting clear and convincing evidence of fraud upon the court.”
Next, the district court found that the jury's verdict finding that Stuart was not entitled to damages for water damage was supported by the evidence presented at trial. The court noted that the jury was presented with several arguments as to how the water damage occurred, including a backed-up sewer drain and a broken washing machine hose. The evidence showed that John Auld, Sr., accepted payment from American Family for the damage stemming from this incident. The sewer drain theory involved a limited recovery claim because of a policy endorsement. A representative of American Family offered evidence that it paid out its maximum coverage under the sewer and sump pump overflow coverage endorsement based on the observations of an independent adjuster who handled the claims from the heavy rain that occurred on June 13, 2010. The district court noted that Stuart was not present when the damage occurred, and he had no firsthand evidence supporting his theory of recovery that the damage resulted from a broken washing machine hose. In addition, the district court pointed out that Stuart was cross-examined about an affidavit he executed in a foreclosure action that he had filed against his father in which he claimed that the water damage resulted from a failure to clean gutters and maintain the downspouts, allowing a drain outside the basement door to become clogged and flood. The court concluded that Stuart's allegation that no evidence supported the jury's verdict was “frivolous.” The court ruled that the jury's determination was consistent with the disputed evidence submitted.
As to Stuart's claim for damages resulting from theft, the district court noted that the jury was faced with conflicting evidence on this theory. Stuart testified that certain items had been given to him by his mother before the items became part of a trust estate. Alternatively, Charles Hammond, the estate's attorney, testified that Stuart had no interest in the personal property that he claimed was missing because: (1) the property was part of the trust assets; and (2) the trust owed attorney and trustee fees in excess of any property value remaining because of legal disputes generated by Stuart. The trustee reported that Stuart's claims were fraudulent and there was nothing missing from the estate. The insurance adjustor testified that it was unlikely that any theft had occurred because there was no forced entry and none of his siblings had reported that anything was missing from the house. The district court concluded that there was more than sufficient evidence for the jury to determine that Stuart failed to demonstrate a theft claim and, therefore, he was not damaged by any breach of the insurance policy provisions.
Finally, the district court reviewed Stuart's claims that it erred in instructing the jury. The district court noted that Stuart's counsel attended the jury instruction conference and “put forth no other instructions and agreed to the instruction package submitted.” The court noted that Instruction No. 11, which outlined Stuart's theory of recovery, “followed exactly those claims which plaintiff was making.” The district court found no error in the jury instructions.
On February 3, 2014, the district court entered its order denying Stuart's posttrial motions. Stuart appeals.
Stuart has provided the court with a large, 48–page brief in support of his claims of error. However, as noted above, Stuart violated many aspects of Rule 6.02. The record is not properly formatted and does not include citations to the record. In addition, it is nearly impossible for us to determine the issues raised on appeal because the brief does not contain a brief statement of the issues to be decided in the appeal as required by Rule 6.02(a)(3).
Additionally, although Stuart's issues appear to be focused solely on trial errors, Stuart did not include the entire trial transcript in the record. A jury trial was held from July 15, 2013, to July 18, 2013, but the record contains the testimony of only one witness and one rebuttal witness. We are unable to review posttrial motions asserting trial errors without a transcript of the trial. The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644–45, 294 P.3d 287 (2013).
Even though Stuart has represented himself throughout portions of these proceedings, including on appeal, he must follow the established legal rules and provide a sufficient record for this court's review.
“ ‘A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.’ Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595–96, 730 P.2d 1109 (1986).” O'Neill v. Herrington, 49 Kan.App.2d 896, 906, 317 P.3d 139 (2014), rev. denied 301 Kan. –––– (January 15, 2015).
On May 22, 2014, this court filed the following order notifying Stuart of his burden to designate the record:
“On April 21, 2014, this court ordered Appellant to pay the outstanding cost of the transcript or his transcript request would be deemed withdrawn. As of this date, Appellant has failed to remit payment for any transcript. Accordingly, the transcript request to Kelly M. Pfannenstiel, CSR, RPR, is deemed withdrawn. Appellant is reminded that it is his burden to designate a record sufficient to support a claim of error. Without such a record, the claim of error fails. Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993). Appellant's Brief is now due on June 26, 2014. If appellant wishes to dismiss this appeal, he should file a motion for voluntary dismissal with this court as quickly as possible.”
As best as we can ascertain, the issues on appeal include: (1) the trial verdict was not supported by the evidence; (2) the defense committed fraud upon the court; and (3) the jury instructions were clearly erroneous. Each of these issues involves trial errors, and a review of the trial transcript is essential for a determination of the merits of the issues. It is impossible for us to review the merits of these issues without a complete trial transcript. Thus, we dismiss the appeal based on Stuart's failure to designate a record on appeal and his failure to comply with Rule 6.02.
Appeal dismissed.