Opinion
112,568.
04-24-2015
Brian W. LININ and Janda K. Linin and Brent W. Linin and Ginny A. Linin, Appellees, v. Donald W. DAWES and Phyllis C. Dawes, Appellants, and Plainsman Property Company, et al., Defendants.
Appeal from Sherman District Court; Scott Showalter, Judge. Donald W. Dawes, and Phyllis C. Dawes, appellants pro se. Adam C. Dees, of Vignery & Mason L.L.C., of Goodland, for appellees.
Appeal from Sherman District Court; Scott Showalter, Judge.
Donald W. Dawes, and Phyllis C. Dawes, appellants pro se.
Adam C. Dees, of Vignery & Mason L.L.C., of Goodland, for appellees.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Donald and Phyllis Dawes, pro se, appeal from two separate judgments of the district court entered in favor of Brian and Janda Linin. In one district court case, 13 CV 29, the Daweses appealed out of time, and we confirm the dismissal of that appeal for lack of jurisdiction. In the other, 14 CV 22, the Daweses failed to provide a record on appeal. Thus, they have failed to support any claim they may have made under 14 CV 22 by citations to the record. Those failures and others described below preclude our review in 14 CV 22, and we affirm the district court's decision in that case.
Procedural and Factual Background
The Daweses have provided us a record on appeal in 13 CV 29. They have provided no record on appeal at all in 14 CV 22. The Linins have attached to their brief a purported copy of the final order in 14 CV 22 from which the Daweses apparently appeal, although such attachments cannot be deemed a part of the record. We will do what we can from what we have to provide a brief history of the cases at issue.
The Daweses previously owned a substantial amount of rural real property. However, they failed to pay income taxes for several years, amassing a federal tax debt in excess of $1.5 million. The Internal Revenue Service (IRS) assessed those taxes on May 3, 2004, and placed a lien on the Daweses' real property. When the IRS moved to foreclose its tax lien, the Daweses filed bankruptcy. With the bankruptcy court's permission, the IRS was allowed by the United States District Court to foreclose its tax lien in order to sell the Daweses' property at a tax sale. The Daweses appealed the district court's order foreclosing the lien to the Tenth Circuit Court of Appeals, which affirmed the foreclosure.
Brent Lenin bought the property at the June 20, 2007, tax sale for $185,000 and received a Sheriff's deed to the entirety of the subject property. He subsequently transferred title to Brian and Janda Linin, the plaintiffs in 13 CV 29. As things happen, the county authorities duly registered the transfer of title to the real property to the Linins, but the treasurer continued to bill the Daweses or one of their alter ego entities for separate taxes on mineral rights. Over the years after the tax sale, the Daweses or one of those alter ego entities paid $258.98 in those taxes.
Under case 13 CV 29, the Linins filed a quiet title action regarding those mineral rights, seeking to confirm their ownership of the entirety of the property. Among many others, the Linins served the Daweses. The Linins moved for summary judgment, but the Daweses opposed that. On June 10, 2014, the district court heard the Linins' motion for summary judgment. The Daweses appeared and resisted, claiming that they still owned the fee simple freehold in the land and that the IRS had no right to take the land because it was located more than 10 miles from the District of Columbia. They also claimed that, regardless of the decisions in the federal courts, all the Linins could own as a result of the tax sale was the IRS lien, not title to the real property. The district court orally granted summary judgment, confirming that the Linins owned all of the subject property including the mineral interests. The record from that hearing contains a discussion between the court and the Daweses regarding their right to appeal. The district court cautioned the Daweses that there was a timeframe in which to appeal in Kansas.
The Linins' attorney sent the Daweses a proposed journal entry under Supreme Court Rule 170 (2014 Kan. Ct. R. Annot. 278). The Daweses objected to it. Finally, on July 14, 2014, the district court determined the matter of the journal entry and entered its written summary judgment order quieting title to the Linins.
The Daweses did not timely appeal from that order. Rather they, apparently from attachments to the Linins' brief and the Daweses' brief, filed with the register of deeds documents they called caveats on July 28, 2014, and August 26, 2014. These caveats purported to claim for the Daweses all title and interest in the Linins' property. The Linins' brief advises that on September 4, 2014, the Linins filed a motion for judicial review of those caveats pursuant to K.S.A. 58–4301, asking that the caveats be ified. The motion was assigned case 14 CV 22. The Linins' brief further advises that on September 4, 2014, the court entered an order summarily ifying those caveats. Again, the Daweses did not see to the inclusion in the record on appeal of any part of the district court file in 14 CV 22.
On September 15, 2014, the Daweses filed a notice of appeal in 13 CV 29, noting both case numbers but specifically referring only to an appeal from the September 4, 2014, judgment in 14 CV 22. The Daweses' brief, though, mainly challenges the summary judgment in 13 CV 29. Regarding 14 CV 22, their brief includes only summary allegations that the caveats confirm that the Daweses own “Fee Simple Freehold Absolute title” to the Linins' property. The Daweses' brief does not mention that the district court ified their caveats. It makes no argument with citation to statutory or caselaw authority that the district court erred when it ified the caveats.
Before the parties filed their briefs the Linins moved to dismiss the appeal. The Daweses responded. Our motions panel entered an order on November 20, 2014, which stated:
“Appellants' response is noted. The Appellants' notice of appeal was timely from the district court's September 4, 2014, ruling. This court assumes jurisdiction over that ruling but does not have jurisdiction over the original July 14, 2014, ruling on summary judgment.
“The September 4, 2014, ruling was made in case number 14 CV 22. The notice of appeal references case number 14 CV 22. Given that fact, it appears that the notice of appeal was reasonably certain to have provided adequate notice to Appellees.”
As implicit as it might appear, the panel's order did not specifically dismiss the appeal from 13 CV 29.
Analysis
We have no jurisdiction over the Daweses appeal from 13 CV 29 and it is dismissed
Whether jurisdiction exists is a question of law over which we exercise unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. If the record shows that the appellate court does not have jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
Unless an exception applies, and none applies here, Kansas appellate courts have jurisdiction to consider an appeal only if a party files an appeal within the time limitations and in the manner prescribed by the applicable statutes. Wilkinson v. Shoney's, Inc ., 265 Kan. 141, 143, 958 P.2d 1157 (1998). By statute, then, this appeal had to be filed within 30 days from “entry of the judgment.” K.S.A.2014 Supp. 60–2103(a). Judgment is entered when a journal entry or judgment form is filed. K.S.A.2014 Supp. 60–258. A judgment is effective only when a journal entry or judgment form is signed by the judge and filed with the clerk of the district court. Valadez v. Emmis Communications, 290 Kan. 472, 482, 229 P.3d 389 (2010).
On July 14, 2014, the district court settled the journal entry on its June 4, 2014, oral entry of summary judgment. That journal entry granted the Linins summary judgment quieting title in the Linins to mineral rights attached to the Linins' property. That journal entry was filed the same date, July 14, 2014. The Daweses did not file a notice of appeal referring to 13 CV 29 until September 15, 2014, well beyond 30 days from the entry of judgment. The Daweses notice of appeal was out of time. Just as our motions panel previously indicated, we have no jurisdiction over the appeal from the summary judgment entered in 13 CV 29, and we expressly, now, dismiss that portion of the appeal.
The Daweses' Failure to Properly Provide a Record on Appeal and Their Attendant Failure to Properly Brief Their Appeal in 14 CV 22 Precludes Our Review
As noted above, on September 15, 2014, the Daweses filed a notice of appeal in case 13 CV 29. It was captioned with that case number and stated that it was “Combined with Misc. Docket No. 14–CV–22.” The text of the notice states the Daweses were appealing “from the JUDGMENT entered herein on September 4, 2014, by the Honorable Judge Scott Showalter who signed the above-captioned action.” September 4, 2014, is, according to the order attached to the Limns' brief, the day the district court ified the Daweses' caveats. We can infer, then, that the Daweses must have intended to appeal from the caveat ification decision. But all we can really do is infer.
First of all, the Daweses have not caused us to be provided, other than their notice of appeal filed in 13 CV 29, any record on appeal in 14 CV 22. We officially have nothing from the district court's file to review, whether it is the Linins' original request to ify the caveats or any order ifying the caveats. We do have those documents the Linins attached to their brief, and one caveat the Daweses attached to their brief. However, including documents in an appendix to a brief does not make those documents part of the record that we can consider on appeal. Romkes v. University of Kansas, 49 Kan.App.2d 871, 886, 317 P.3d 124 (2014).
Moreover, the Daweses have failed in crucial respects to comply with Supreme Court Rule 6.02(a) (2014 Kan. Ct. R. Annot. 40) regarding the contents of their brief on the caveat issue in 14 CV 22. They do not include a “brief statement, without elaboration” that the caveat ification is an issue to be decided on appeal. Rule 6.02(a)(3) (2014 Kan. Ct. R. Annot. 41). They do not include a “concise but complete statement, without argument, of the facts that are material to determining the issues to be decided on appeal” regarding the caveat ification. Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 41). They do not provide arguments and authorities they rely on for any challenge to the propriety of the caveat ification, nor did they, or could they, include “a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on.” Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41). Their entire argument in the brief concerning the caveat ification is as follows: “The Legislative Court failed to find the correct legal terms and meaning for the Caveat.... The Dawes” [sic ] filed a Caveat which does attach to the original Warranty Deed granting the Dawes' their Fee Simple Freehold Absolute title.” Then they quote the definition of caveat from Black's Law Dictionary.
An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). A point raised incidentally in a brief and not argued therein is also deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Failure to support a point with pertinent authority or 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). 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, 296 Kan. at 644–45.
We recognize that the Daweses are representing themselves in this appeal, not an easy task for those untrained in law. Nevertheless, as has been stated before:
“ ‘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).” In re Estate of Broderick, 34 Kan.App.2d 695, 701, 125 P.3d 564 (2005).
We also recognize that, while we adhere to these rules, we may be flexible when enforcing them on a self-represented party if the party has demonstrated some semblance of compliance with the rules. However, the Daweses' failures to provide us a record on appeal to review, and a brief that complies with Rule 6.02 sufficient to assist us in that review, do not justify any flexibility here. Assuming that the Daweses are appealing from the caveat ification, we simply do not know what it is about the caveat ification proceedings that they challenge in their appeal. The Daweses multiple failures to comply with our appellate procedural rules, their failure to identify what issue they actually want us to review, and their failure to adequately brief such an issue all preclude us from analyzing any claim of error regarding the ification of the caveats. We must, then, affirm the district court's decision in 14 CV 22.
The Linins' motion for attorney fees on appeal
The Linins have moved for an assessment of their attorney fees on appeal against the Daweses pursuant to Supreme Court Rule 7.07(c) (2014 Kan. Ct. Annot. 70). In two separate motions, one seeking attorney fees of $1500 and one seeking an additional $300, the Linins succinctly state the reason for their requests: “Appellee asks for attorney fees and costs because this appeal was frivolous.” Regarding frivolous appeals, Rule 7.07(c) (2014 Kan. Ct. R. Annot. 71–72) provides:
“If an appellate court finds that an appeal has been taken frivolously, or only for the purpose of harassment or delay, it may assess against the appellant or appellant's counsel, or both, the cost of reproduction of the appellee's brief and a reasonable attorney fee for the appellee's counsel. A motion for attorney fees under this subsection must comply with subsection (b)(2). If the motion is granted, the mandate must include a statement of the assessment, and execution may issue on the assessment as for any other judgment, or in an original case the clerk of the appellate courts may issue an execution.”
A frivolous appeal is an appeal that presents no justiciable question, is readily recognized as devoid of merit, or presents little prospect of success. Peoples Nat'l Bank of Liberal v. Molz, 239 Kan. 255, 257, 718 P.2d 306 (1986). Factually, as the Linins detail and support in their motions, each of the Daweses' appeals meets all of these standards for a frivolous appeal. In 13 CV 29, the Daweses filed their notice of appeal out of time even though, at the hearing of June 4, 2014, the district court responded to their questions about appealing with a caution that Kansas had time limits in which to appeal. Then they proceeded to brief their ongoing contention in 13 CV 29 that they had some ownership interest in the Linins' property, this after being assured by judgments of the United States District Court and, then, the Tenth Circuit, that any interest they previously had in the property was foreclosed for their tax debt. In 14 CV 22, the Daweses did not bother to provide a record on appeal, and their brief does not even state the actual judgment from which they appealed, let alone why the court erred when it entered it.
The Daweses filed an objection to the Linins' fee motion, arguing “[t]he Appeal is correctly written and should go forth pursuant to Appellant rules for Appellants, Donald and Phyllis Dawes.” They also contended that the Linins' attorney, Adam Dees, should be sanctioned for filing a frivolous lawsuit because he “knew or should have known that the Fee Simple, Freehold was a Constitutional Issue, protected by the 2nd Amendment to the Constitution of the [U]nited States of America, and not subject to Legislative jurisdiction.” The Daweses also asked this court to sanction Dees for harassment, vindictiveness, stress, wasting their time, and filing “voluminous amounts of paperwork” into the courts. The Daweses' objections to the fee requests maintain their frivolous claim that they retain an interest in the property. Their objections and requests for sanctions are without merit.
The Daweses' appeals were frivolous. The Linins' motions for attorney fees were timely filed and properly supported by affidavits and time records. Supreme Court Rule 7.07(b) (2014 Kan. Ct. R. Annot. 70). As the motions contend, the fees requested appear to be consistent with the reasonableness factors they detail from KRPC 1.5(a) (2014 Kan. Ct. R. Annot. 515). Moreover, even though the Daweses' claims on appeal were frivolous, the Linins needed to protect themselves by responding.
We determine that the Linins' fee requests are reasonable, equitable, and properly justified. We sustain the Linins' motions for attorney fees in these appeals and grant the Linins a judgment against Donald W. Dawes and Phyllis C. Dawes jointly and severally in the total amount of $1,800.
Affirmed in part, dismissed in part, and attorney fees are granted.