Opinion
111,252.
10-10-2014
BOARD OF COUNTY COMMISSIONERS OF BUTLER COUNTY, KANSAS, Appellee, v. Ronald E. ALVAREZ, et al., Defendants, and Steven Ty Souter and Amber Marie Souter, Appellants.
Steven Ty Souter and Amber Marie Souter, appellants pro se. Keyta D. Kelly, of Kelly Law Office, L.L.P., of Tonganoxie, for appellee.
Steven Ty Souter and Amber Marie Souter, appellants pro se.
Keyta D. Kelly, of Kelly Law Office, L.L.P., of Tonganoxie, for appellee.
Before SARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven Ty Souter and Amber Marie Souter (Souters) appeal the district court's tax foreclosure judgments against them. The record on appeal presented by the Souters is insufficient to support their claimed errors. We affirm.
Facts
The Souters owned property (the Property) in Leon (the City). The Board of County Commissioners of Butler County (the County) filed a tax foreclosure action against the Souters for failing to pay taxes on the Property.
The Souters each filed an answer in which they generally denied the County's claim, asserting the house on the Property had burned down in 2008 and informing the district court, “I do not know how the amount of taxes owed are as high as they are, for a vacant lot.”
The County then moved for judgment on the pleadings, asserting the Souters' answers did “not deny that the taxes are due and owing or that the subject real estate is not subject to foreclosure and sale for delinquent taxes.”
Amber did not appear at the foreclosure hearing, and the district court granted default judgment against her. Steven appeared at the hearing. No transcript of the hearing was provided to this court as part of the record on appeal.
The district court granted the County's motion, finding that “taxes, interest, penalties and charges” in the amount $4,794.87 had been assessed against the Property and that the County had a first and prior lien upon the parcel. Judgment “in rem” was granted to the County for the foreclosure of its tax liens against the Property. The Souters were given 14 days to satisfy the lien before the court clerk issued an order of sale against the Property to satisfy the judgment.
The Souters timely appealed.
Analysis
The Souters raise four issues on appeal;
• The City and/or the County exceeded the scope of their authority by entering onto the Property without either adequate cause or without providing sufficient notice.
• The Souters challenge the City's promulgation of “Self–Help and Abatement Remedy Provisions” and allege those resolutions are contrary to K.S.A. 19–101. Specifically, the Souters allege they had less than 6 months to clean the Property.
• The Souters allege they were denied due process when the remaining structure on the Property was demolished and the remaining personal property removed without warning or notice.
• The Souters criticize the district court's grant of judgment on the pleadings where “no itemized property tax statement or property tax bill reflecting the charges” was included in the petition.
In each of these arguments, the Souters have failed to provide our court with a record to verify these issues were raised before the district court. Issues not raised before the trial court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Additionally, we note the burden is on the party making a claim to designate facts in the record to support each claim; without such a record, the claim of error fails. See Supreme Court Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39); Freidman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644–45, 294 P.3d 287 (2013). Given the lack of a sufficient record before us, each of the Souters' claims fails.
We are mindful of the fact the Souters presented their case pro se and we need to liberally construe their pleadings. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2011) (“Pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments.”). Pro se appellants are bound by the same requirements that apply to those represented by counsel. See Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007). We cannot review what we have not been provided.
Simply put, this was an action to foreclose the unpaid tax liens imposed on the Property owned by the Souters.
Without the record of the hearing before the district court on August 16, 2013, we cannot tell what was presented to the district court by the County to support its request for the tax foreclosure or by Steven in opposition to the request. As previously stated, the failure of the Souters to cite to the record or legal authority leaves this court without the ability to review the Souters' claims of error, and those claims of error fail.
Conclusion
We find the Souters have not demonstrated the district court erred in granting judgment to the County foreclosing the unpaid tax lien on the Souters' Property. We affirm.
* * *
STANDRIDGE, J., dissenting.
I respectfully dissent from the majority's decision to affirm the district court's decision to enter judgment on the pleadings in favor of the Board of County Commissioners of Butler County (County) on its petition to foreclose the unpaid tax lien on the property owned (Property) by Steven Ty Souter and Amber Marie Souter (Souters).
A motion for judgment on the pleadings is grounded in the notion that a moving party is entitled to judgment on the face of the pleadings themselves without developing any evidence. K.S.A.2013 Supp. 60–212(c) ; Rector v. Tatham, 287 Kan. 230, Syl. ¶ 1, 196 P.3d 364 (2008). In deciding a K.S.A.2013 Supp. 60–212(c) motion, a district court applies the same standard as under K.S.A.2013 Supp. 60–212(b)(6) to the extent that the court must read the petition in a light most favorable to the nonmoving party and accept as true the facts set forth in the pleading filed by the nonmoving party. On appeal, we apply the same rules; thus, dismissal is not justified when the pleadings, taken as a whole, reveal any potential dispute about one or more material facts.
In a foreclosure action under K.S.A. 79–2803, the district court must make specified factual findings. Those findings include the amount of taxes owed and that those taxes were legally assessed. The County bears the burden of proving the lawful assessment of the taxes.
The petition filed by the County in this matter named 58 defendants and asserted 64 individually numbered causes of action. As to all of these defendants and pertaining to all 64 causes of action, the County generically alleged in its petition that
“All requirements of law pertaining to assessment, levy, taxation, publication and proof thereof, sale and purchase in the name of Butler County, Kansas, as prescribed by K.S A. 79–2301 et seq. , and every other legal condition precedent to judicial foreclosure of said tax liens, have been performed and satisfied. The taxes have not been paid as required by law, and all the within described real estate is subject to foreclosure and sale for delinquent taxes.”
Although Steven and Amber filed separate pleadings in response to the allegations set forth by the County in its petition, the responsive pleadings were filed pro se and are identical:
“[We] deny the claim of the plaintiff for the following reasons, and [we] assert the following reasons:
“In 2008 there was a natural disaster that destroyed the house at 322 W. North St. in Leon, KS 67074. (A severe thunderstorm struck the property with lightning and burned the structure down.) [We] do not know how the amount of taxes owed are as high as they are, for a vacant lot at 322 W. North St. in Leon, Kansas.”
Although affirming the district court's decision to grant judgment on the pleadings in favor of the County, the majority does so based not on the pleadings but instead on the Souters' failure to include in the record on appeal a transcript of the August 16, 2013, hearing before the district court: “[W]e cannot tell what was presented to the district court by the County to support its request for the tax foreclosure or by Steven in opposition to the request” for judgment on the pleadings. But evidence or argument presented by the parties at the August 16, 2013, hearing is immaterial to resolving the motion filed by the County. By its very title, a K.S.A.2013 Supp. 60–212(c) motion for judgment on the pleadings limits the court's consideration to only the pleadings. If matters outside the pleadings are presented to and not excluded by the court in conjunction with a motion for judgment on the pleadings, “the motion must be treated as one for summary judgment under K.S.A. 60–256, and amendments thereto.” K.S.A.2013 Supp. 60–212(d). Because there is nothing in the record to suggest that the district court treated the County's motion as one for summary judgment, we are limited to resolving the legal issue presented on appeal based solely on the pleadings. And, again, dismissal is not justified when the pleadings, taken as a whole, reveal any potential dispute about one or more material facts.
When viewed in a light most favorable to the Souters, I would conclude from the pleadings that there exists a potential dispute about whether the taxes at issue here were legally assessed. Most telling is the fact that the County readily concedes in its brief that the issue presented by its motion for judgment on the pleadings necessarily involves resolution by the court of a dispute in material fact: “This appeal involves a question of fact—‘were real property taxes, interest, penalties and charges on the Souter real property legally assessed and charged and were said taxes unpaid?’ “ I would agree with the County that the issue presented here requires this court to resolve a disputed issue of fact, which the court is precluded from doing on a motion for judgment on the pleadings.
In further support of the conclusion that the issue presented here requires this court to resolve a factual dispute is that the County's petition does not allege any facts, let alone facts specific to the cause of action against the Souters that would support a finding that the unpaid taxes upon which the County based this foreclosure proceeding were legally assessed. Based on the facts set forth in the docketing statement showing that the Souters' claims are material to the issues presented on appeal, as well as the facts discussed by both parties' in their briefs, the unpaid taxes apparently were assessed for costs associated with cleaning up the Property after it was struck by lightning and the structure burned down. But a reasonable inference could be made from the allegation in the responsive pleadings that the Souters were never put on notice that taxes had been assessed for cleaning up the Property. Of course, without the required notice, it would have been impossible to challenge the tax assessment and to clearly state the reasons for that challenge, as is required by K.S.A.2013 Supp. 79–2005. To conclude otherwise would permit counties across the state to guarantee success in a foreclosure action based on unlawful assessments by simply failing to send out the notice of assessment. Viewing the pleadings as a whole and in a light most favorable to the Souters, a potential dispute in material fact exists as to whether the real property taxes, interest, penalties, and levied charges on the Property were legally assessed and charged.
Moreover, the allegation in the County's petition stating that the County had complied with all of the legal requirements pertaining to the underlying tax assessment necessarily gives rise to a reasonable inference that it was the County (and not the City of Leon) that cleaned up the Property and then levied a tax lien to recover the costs. This distinction is critical to the issue before the court: whether the unpaid taxes upon which the County based these foreclosure proceedings were legally assessed.
Notably, a city may remove or abate a nuisance and bill the property owner for the cost of doing so if it provides the proper notice and the property owner fails to take the action required to eliminate the nuisance. K.S.A.2013 Supp. 12–1617e. If the bill for the cost of removal or abatement is not paid in a timely manner, the city may levy a special assessment for the cost against the lot or piece of land. K.S.A.2013 Supp. 12–1617e(d). The city clerk then may certify the special assessment for the cost of removal or abatement at the same time other city taxes are certified to the county clerk. If the city does so, “the county clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the county treasurer and paid to the city as other city taxes are collected and paid.” K.S.A.2013 Supp. 12–1617e(d).
Unlike the power of a city to levy an assessment against the property for the cost of removing or abating a nuisance, however, the county does not have the power to pursue such a remedy. See Barnes v. Board of Cowley County Comm'rs, 47 Kan.App.2d 353, 364–65, 274 P.3d 697 (2012), rev. denied 297 Kan. 1243 (2013). Counties are granted broad authority under their home rule powers to transact county business and govern their local affairs by resolution of the board of county commissioners. K.S.A.2013 Supp. 19–101a. But K.S.A.2013 Supp. 19–101d provides the exclusive method of enforcing county resolutions and the remedies available to the county. Under this statute, the remedies available to the county are restricted to injunction, fine, confinement in jail, or both fine and confinement.
Construing the pleadings in a light most favorable to the Souters, the allegations set forth by the County in its petition give rise to a reasonable inference that it was the County—and not the City of Leon—that cleaned up the Property and then levied a tax lien to recover the costs. But as noted above, K.S.A.2013 Supp. 19–101d precludes the County from levying a special assessment against the property for the County's cost of cleaning. Thus, contrary to the County's assertion and the district court's finding, the pleadings—taken as a whole and viewed in a light most favorable to the Souters—reveal a potential dispute of material fact as to whether the real property taxes, interest, penalties, and charges on the Property were legally assessed and charged.
For all of the reasons set forth above, I would find that the district court erred in granting the County's motion for judgment on the pleadings.