Opinion
No. 109,100.
2013-12-6
METLIFE HOME LOANS, a Division of Metlife Bank, N.A., Appellee, v. Clarence G. HANSEN, et al., Appellant.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Clarence G. Hansen, appellant pro se. Beverly M. Weber and M. Casey McGraw, of Martin, Leigh, Laws & Fritzlen, P.C., of Kansas City, Missouri, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Clarence G. Hansen, appellant pro se. Beverly M. Weber and M. Casey McGraw, of Martin, Leigh, Laws & Fritzlen, P.C., of Kansas City, Missouri, for appellee.
Before PIERRON, P.J., BUSER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Clarence G. Hansen and Kelly L. Hansen previously appealed the foreclosure of their home in MetLife Home Loans v. Hansen, 48 Kan.App.2d 213, 286 P.3d 1150 (2012). Our court affirmed, finding that MetLife was entitled to summary judgment on its mortgage foreclosure action as a matter of law. 48 Kan.App.2d at 226. Clarence now appeals the district court's order of November 14, 2012, confirming a sheriff's sale with no deficiency payments due. We affirm the district court's ruling.
As this court noted in the prior appeal, the Federal National Mortgage Association, or Fannie Mae, now holds the note and mortgage. On appeal, Fannie Mae contends that Clarence has failed to follow Supreme Court Rule 6.02 (2012 Kan. Ct. R. Annot. 38), which governs the content of an appellant's brief. Fannie Mae also argues that Clarence fails to provide “any factual or legal support demonstrating that [the district judge] abused his discretion” in entering the order confirming sheriff's sale.
We find that Fannie Mae's arguments are meritorious. Rule 6.02(a) (2012 Kan. Ct. R. Annot. 38) sets out the “Required Contents” of an appellant's brief, stating what such briefs “must contain.” As Fannie Mae points out, Clarence's brief does not conform to these rules in several ways—with regard to a table of contents, list of authorities, statement of facts, or citations to the record on appeal. For example, our appellate rules require that factual statements “must be keyed to the record on appeal by volume and page number.” Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 39). Clarence does not key any of his factual statements by volume and page number. As a result, we may presume these factual statements are without support in the record. See Rule 6.02(a)(4).
Even if we were to ignore these rules of appellate procedure in the present case, we would still not find adequate argument. Clarence's few citations of law consist of a few statutes which do not relate to orders confirming sheriff's sales and an apparent quote from a case which is not itself cited. Clarence does cite K.S .A. 60–2415(b) which applies to a sheriff's return of sales, but we do not see any argument based upon that statute. It is well settled that “[o]n appeal, error below is never presumed and the burden is on the appellant to make it affirmatively appear.” First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, Syl. ¶ 8, 647 P.2d 1268 (1982). “Therefore, an argument that is not supported with pertinent authority is deemed waived or abandoned.” Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).
Even if we were able to interpret Clarence's arguments, we would be prevented from properly analyzing this case due to the inadequate record on appeal. For example, the order Clarence appeals from is in the record, but the district court's appearance docket shows further filings by the parties regarding this order and another hearing scheduled for December 10, 2012. The record does not contain all of these filings or indicate what, if anything, happened at that setting. Given that Clarence complains of the procedure before entry of the order confirming sheriff's sale, it is important to know whether he raised these complaints in the district court. Because Clarence has not met his burden to designate a record affirmatively showing error, we may presume the district court did not err. See Friedman, 296 Kan. at 644;Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Finally, we acknowledge that Clarence is proceeding with this appeal pro se. His failure to obtain legal counsel and his apparent lack of knowledge regarding appellate procedure makes his task to properly prosecute this appeal a daunting endeavor, indeed. We have previously stated, however:
“ ‘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).
While we have, on occasion, ignored technical or minor deficiencies in a pro se litigant's brief, the number and significance of Clarence's failures to comply with our appellate procedural rules unfortunately preclude our ability to appropriately analyze his claims of error.
Affirmed.