Opinion
No. 111629.
04-03-2015
Larry JENSEN, Appellee, v. Raymon SCOTT, Appellant.
Raymon Scott, appellant pro se. Philip J. Bernhart, of Coffeyville, for appellee.
Raymon Scott, appellant pro se.
Philip J. Bernhart, of Coffeyville, for appellee.
Before MCANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Plaintiff Larry Jensen and Defendant Raymon Scott joined forces in 2008 in a business venture to acquire and rehabilitate real estate and then sell it for a profit. Jensen financed the venture by turning over $192,750 to Scott who was to provide the expertise in purchasing and fixing up the properties. Two years later, Jensen wanted out. Scott turned over a number of properties to Jensen but couldn't account for much of Jensen's financial contribution. Jensen sued Scott in the Montgomery County District Court and following a bench trial received a judgment for $129,250. Scott has appealed. As we discuss, we have been presented with no legal bases to reverse the judgment and, therefore, affirm.
At the outset, we note that Scott has represented himself throughout this litigation. As we have pointed out before, a legal do-it-yourselfer faces tremendous obstacles in navigating successfully through the civil justice system. See In re Marriage of Arambula and Valenzuela, No. 110,669, 2014 WL 4435902, at *1 (Kan.App.2014) (unpublished opinion); University of Kansas Hosp. Authority v. Yang, No. 108,199, 2013 WL 518112, at *1 (Kan.App.2013) (unpublished opinion); Stormont–Vail Healthcare, Inc. v. Zoble, No. 103,353, 2010 WL 4157102, at *1 (Kan.App.2010) (unpublished opinion). An unrepresented party is expected to comply with the procedural rules and to present legal arguments in substantially the same way a lawyer would. Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, Syl. ¶¶ 1, 2, 730 P.2d 1109 (1986). In short, the courts are not permitted to shade the rules or the law in favor of parties representing themselves. Marriage of Arambula, 2014 WL 4435902, at *1.
In this case, Jensen sued Scott for conversion and fraud after Scott could not explain what happened to much of the money put into the business venture. The operation appears to have been loosely run. There was no written partnership agreement. And Scott maintained no formal accounting system or ledgers showing money coming in or going out. Jensen presented evidence as to what he contributed to the business, and the parties testified at the bench trial about the general scope of the enterprise. After the trial, the district court issued a written decision with findings of fact and conclusions of law. From that ruling, we gather that Scott turned over various properties to Jensen when they ended their business relationship. The district court credited the value of those properties against Jensen's financial contribution and found the unaccounted for balance to reflect damages due Jensen. Again we gather from the written decision Scott argued that as part of the agreement with Jensen he was permitted to charge his reasonable living expenses to the venture. Jensen, however, disputed that contention. The district court disallowed any such expenses on the grounds Scott could not provide any accounting of them and generally commingled business and personal assets.
On appeal, Scott tells us the district court didn't sufficiently value the properties turned over to Jensen, engaged in mysterious conferences with Jensen's lawyer during the trial, and refused to credit his version of the circumstances over Jensen's—he accuses Jensen of outright lying, something he faults the district court for not recognizing and acknowledging. In sum, Scott thinks he didn't get a fair hearing and essentially wants us to reevaluate the evidence and find for him. Scott, however, misunderstands what an appellate court does.
Our review is limited to considering legal errors. We cannot and do not make decisions about what testimony was more credible or which witnesses may have been untruthful. See K.S.A. 60–252 (In an action tried to the district court, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”); Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (“In evaluating the evidence to support the district court's factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact.”). A significant part of evaluating testimony lies in seeing the witnesses on the stand and how they respond to the questions. State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“[T]he ability to observe the declarant is an important factor in determining whether he or she is being truthful.”). Appellate courts don't have that critical opportunity, so we can't measure credibility or truth-telling.
Our function as appellate judges is to review the district court proceedings for legal mistakes that might have prevented one side or the other from getting a fair trial. We examine the legal principles the district court uses. When a party objects to evidence in the district court, we can determine if the district court should have considered the evidence or disregarded it. Likewise, in most cases, it would be a legal mistake for the district court to rely on the law of Nebraska rather than Kansas. And if the district court made a legal mistake, we then determine whether the mistake was serious enough to require a new trial.
Appellate courts evaluate those types of mistakes by reviewing the record from the district court. The record includes the papers the parties have filed in the district court, the district court's written rulings, and transcripts of testimony and other evidence presented to the district court during trial or other relevant hearings.
Some of Scott's complaints concern matters that are not legal mistakes we can review. To the extent Scott has suggested legal errors in the trial, he has not included a transcript of the trial showing what happened there. Without the transcript, we cannot tell whether or not his complaints might be valid. As the party appealing from the district court, Scott has an obligation to provide a record, including any necessary transcripts, to show where and how the district court made legal mistakes. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Scott says he could not afford a transcript of the trial. Scott also says the district court ordered Jensen to pay half the cost of the trial transcript and Jensen then refused to do so when asked. But Scott cannot point out to us where the district court made that order. The district court did not include such an order in its written decision issued after the bench trial, a logical place for that kind of directive. Moreover, ordering the parties to split the cost of a transcript to be used on appeal in a civil case would be very unusual. The party appealing the district court's judgment—here Scott—is supposed to pay for any necessary transcript. See Supreme Court Rule 3.03(a) (2014 Kan. Ct. R. Annot. 23) (appellant's duty to request any transcripts necessary for appeal); Rule 3.03(f) (court reporter may request advance payment for preparation of any transcripts requested for appeal); see also K .S.A. 60–2104 (content and preparation of record on appeal to be governed by Kansas Supreme Court rule).
Based on what Scott has argued to us in his brief and what is in the record we have in front of us, we find nothing establishing legal errors in the district court's written decision or the judgment entered in favor of Jensen that we could or should correct. We are, therefore, required to uphold the judgment.
Affirmed.