Petition for Writ of Certiorari — Sellens v. American States Insurance

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041595 MAY 26 2005

OFFICE OF THE CLIAX

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES J. SELLENS,

Petitioner,

AMERICAN STATES INSURANCE COMPANY;

THE AGENCY; DOUG GEUBELLE; RICHARD

MARQUEZ; JAMES BAMBICK, CARLOS

CAULDRON, JR.; CLAIRE McCLELLAN;

PATRICIA SMITH; JACK ECREMENT;

and CARL EISELE,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF KANSAS

PETITION FOR A WRIT OF CERTIORARI

CHARLES J. SELLENS

Petitioner, Pro se

Uwabu Sakae-machi 10-7

Komagane, Nagano 399-4115

Japan

Ph & Fax 81-265-82-4417

Washington, 0.C. * THIEL PRESS © (202) 328-3286

(1)

QUESTIONS PRESENTED

1. Whether it was error for the Kansas Supreme Court

to hold that the petitioner’s petition was untimely and/or

that he had no cause of action against respondents in

conflict with obvious contrary language in Kansas stat-

utes, its own previous. decisions, and further in conflict

with decisions of this court, other federal courts of

appeals, and other state supreme courts?

2. Whether this Court, in the exercise of its supervis-

ory authority over the state courts, should establish some

limit on the extent to which appeals may be disposed of

in Kansas courts by means of unpublished opinions that

are in conflict with decisions of this court, other federal

courts of appeals, other state supreme courts and its own

previous decisions?

3. Whether it was error for the Kansas Judicial System

to fail to provide the petitioner with a trial by jury des-

pite US and Kansas Constitutions holding that the right

to trial by jury is guaranteed?

PARTIES TO THE PROCEEDING

The parties to this case are:

Plaintiff/Petitioner:

Defendants/Respondent:

Doug Geubelle &

The Agency

P.O. Box 27

Lakin, Kansas 67860

Carl (Bud) Eisele

Route 3

Fort Scott, Kansas 66701

Claire McClellan

716 North 119th Street

P.O. Box 75008

Wichita, Kansas 67275

Jack Ecrement

Route 5

Fort Scott, Kansas 66701

Charles J. Sellens

Uwabu Sakae-machi 10-7

Komagane, Nagano 399-4115

Japan

* American States Insurance Co.

500 N. Meridian St.

Indianapolis, IN 46204

Richard C, Marquez

Lindner & Marquez,

Attorneys

505 North 6th Street

Garden City, Kansas 67860

Carlos Calderon

6612 Old Trail Road

Fort Wayne, Indiana 46809

Patricia I. Smith

1710S. Eddy

Fort Scott, Kansas 66701

James P. Bambick

Route 4

Fort Scott, Kansas 66701

*During the course of this litigation, American States Insur-

ance, Company was acquired by: Safety Corporation, Safeco Plaza,

Seattle, WA 97185.

(its)

TABLE OF CONTENTS Page

, ee i

Parties To The Proceeding........................ li

PENIS oboe ccccccccdowictccéccacces iii

NINN 5s oc cccccccccccccececece, iv

Petition For A Writ Of Certiorari .................. l

IG £0) .06 s'shb.0-0 060 000ncacecd cons l

CRASS iia bib one 046 iekdcdscdcce.. 1

Constitutional Provisions Involved ................. 2

eae Gain ck veo i'eb ose eed de cc egn 2

hy osc s cee ee 3

Reasons For Granting The Writ.................... 5

I. Because The Kansas Courts’ Violations Of

The Crutkshank Guaranties Prohibiting

Exertion Of Arbitrary And Tyrannical

Power Will Never Be More Easily Recog-

mated Tham In This Case ... o.oo. ccc cc ccccne.. 5

Il. Because The Findings Are In Conflict With

Instructive Language In Kansas Statutes,

Previous Kansas Decisions, And Are Further

In Conflict With Decisions Of This Court,

Other Federal Courts Of Appeals, And

Other State Supreme Courts................. 17

III. Because Kansas Courts Will Continue To Ig-

nore State Statutes, Case Law, And Their

Own Rules Until The Issue Is Resolved

se ieee te 20

IV. This Case Should Be Neither Close Nor Dif.

ficult To Decide. No Facts Are In Dispute.

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Granting The Writ Is Necessary To Begin SE

The Process Of Reinstating The Rule Of

SPER OME, oc cdc ccccecccdsesccssedaae’ 27

CRI 6 5 wkeasseccnasheddndsesweedasaaeeel 29

APPENDICES:

Appendix A — Order of the Kansas Supreme Court’s

denying Petition For Review (March 1, 2005). ..... la

Appendix B — Memorandum Opinion of the Court

Of Appeals Of The State Of Kansas (December

yp PED cv cdsvccasckdenodwaekadeuet ch sae na 2a

Appendix C — Order of the Kansas Supreme Court

denying Motion To Publish Opinion (Oct. 26,

SOOO vccccecsecccdscrvetbsspasesesiacesen 17a

TABLE OF AUTHORITIES

Federal Cases:

U.S. v. Crutkshank, 1 Woods, 316.............. 5,19

Wright v. Wright, 904 Pacific Reporter, Second

Series 403 (1995) defining “rule of law”.......... 6

Rumsfeld v. Padilla et. al., Docket No. 03-1027, 4

GUNS dank os nnbk acemite taken bbe as eee 16

United States v. Morrison et al., No. 99-5

| ere eee pare oe rename shan 17

Vinguusa v. Répes, 160 UG. S13... ce ccccncs veces 19, 20

Lugar v. Edmondson Oil Co., 457 U.S. 922,

OO 6 vkckn dss ahs enaadscehineee eee 19, 20

Connecticut Board of Pardons v. Dumschat, 452

U.S. 458, 472 (1981) (Steven, J., dissent-

WD 6 vies onesceunh nuda baeeeaensseeesun 27

(v)

Page

State Cases:

Robertson, (p. 700, 472 P.2d p. 219)........ , 5, 15, 23

Wetl & Assoc. v. Urban Renewal Agency, Kan.

i REPO i Re, Seng ete Rm ae 5, 13, 28

Bergstrom v. Noah, 266 Kan. 847, 872,974

Oe ree rn ee naee 8, 10, 11

Bailey v. Talbert, 294 P.2d 220, 179 Kan. 169

SA Sedkbecevdeebie ee 8, 22, 23

Meyer v. Deisel Equipment Co., Inc., 570 P.2d

1374, 1 Kan. App. 2d 574 3g: ORR ee ee 8, 22, 23

re Dill, 253, Kan. 195, 8535 P.2d 696

PO + dibnkweceud Lueeeace ties 9, 24, 25

re Jackson, 255 Kan. 542, 874 P.2d 643

ee + 0 oNUAK Sab heeS esa ke EG 9, 24, 25

Anderson v. Bill Morris Constr. Co., Inc., 25

K.A.2d 603, 606, 966 P.2d 96 TOY Sak eh cae 12

Bryson v. Wichita State University, 19 K.A.2d

1104, 1106, 880 P.2d 800 (1994)............ 14, 25

Mellon v. Cessna Aircraft Co., 28 F .Supp.2d

Pe CE an 65ND 2S od Fk hh 14

Hanks v. Riffe Constr. Co., 232 Kan. 800, 802,

iattuaadinsecbecs. 1 IPOS OR hee eae ieee Danae 14

Marshel Investments, Inc. v. Cohen, Kan. App.,

Ope Fe Be vine oes icks Wiha be kekeedeee awe 17

Marker v. Preferred Fire Ins. Co., 211 Kan. 427,

Pew Woe ROMO LINN 64 Kk ka osha kh hos Sha 17

Atlantic International Insurance Co. v. Bell,

OFS Tie Be CREE ois 5 6 oe hi eee oe 17

Tank v. State Farm Fire & Casuclay Co., 105

Wash.2d 381, 715 P.2d 1133 ERE abba kia os 17

(vt)

State Cases, continued: Page

Pacific Mutual Life Insurance Co. v. Haslip et.

al., (89-1279), 499 U.S. 1 (1991) ........... 17, 18

Tatwo v. Vu, 822 P.2d 1028 (Kan. 1991).......... 20

Stanton v. KCC, 2 K.A.2d 228, 229, 577 P.2d

EOE 00 060d0060n0ces opneeednndeceeseseste 20

Jenkins v. McCormick, 339 P.2d 8, 184 Kan.

DOR oc cdccncnscctedabeseceneaasbeseseeenun 23

Tetuan v. A.H. Robins Co., 738 P.2d 1210, 241

OM, GOR (NOOO Nc cnsneneadeans ns cbeacebaces 23

Friends University v. W.R. Grace & Co., 227 Kan.

559, 564, 608 P.2d 936 (1980). ............... 23

Gottstein National Ass'n. for Self-employed, 53

F.Supp. 21, 1212 Kan. (1999) ................ 24

Keith v. Schiefen-Stockham Insurance Agency,

PRG, GES FE SOD CUTE esd oceans edddesroces 24

West v. Prairie State Bank, 200 K. 263, 267, 436

TG GER bc ccctonanscesenensabbncsnaneannas 24

State v. Ford, 23 Kan. App. 2d 248, 241, 930 P.2d

RGSS (RSG 0 0 bn 0bce0kccsbneetenanenwasees 25

State v. Collins, 195 Kan. 659, 700, 408 P.2d

GED (CRUGED ccc vccccececeeebsteauseaceneuas 25

Federal Constitutional Provisions:

Section 1 of Amendment XIV of the Constitution

ot Gee Waies BRS kc cc ccanveconent 2, 15, 19, 20

Article VII of the Constitution of the United

PPT eer ee ees 2, 15

(vit)

State Constitutional Provisions: Page

Constitution of the State of Kansas, Section 1 ....... 2

Constitution of the State of Kansas, Section 2....... 2

Constitution of the State of Kansas, Section 5.... 2, 16

State Statutes:

K.S.A. 40-2, 118, Fraudulent Insurance Act..... Passim

ees SE ob't 600k dbs de de dean tba 10, 15

Ne wh warns 4ensdéncs cuawe dened 11

ees NOs bu dU dbebéec be Sodeeseckkaecis 13, 22

Se shone en cntuds non nadadk seek 14

PE bod de ancessbakesdecdesccuseu 21

Py NN Wid cadekavedacksscevci nsec 21

PGs oaacetedenseihbkdhsnces facies 22

Supreme Court Rules Of The State Of Kansas:

Se ON NEG odd eces eebdcskseevecels 14

Additional Authorities:

Anne Robert Jacques Turgot, Baron De L’Aulne

letter to Dr. Richard Price, March 22,1778 ....... 5

4A Wright and Miller, Federal Practice and Pro-

cedure: Civil 2d para. 1168 (1987).............. 12

Commission On Revision Of The Federal Court

Appellate System, Structures and Internal

Procedures. Recommendations For Change

PO TU a0 cananehbdaudan pewisece tie col 21

(vit)

Additional Authorities, continued:

Black’s Law Dictionary 1092 (6th ed. 1990)

gOS TT TT OTT TOT TTT TT

An Evaluation of Limited Publication in the

United States Court of Appeals: The Price

of Reform, Reynolds, William & William

Richman, 48 U. Chi. L. Rev. 573, 586

Sodan acess eccebuae wees eecot

Remarks at the Seventh Annual Judicial Con-

ference of the United States Court of Ap-

peals for the Federal Circuit, Markey,

Howard T., 128 F.R.D. 409, 413 (1989)......

The Press And The Law, Scalia, Antonin (March

SENG 6 ccscbsiccdeccsneccngdsesaanseevnc

PETITION FOR A WRIT OF CERTIORARI

Charles J. Sellens, hereto also (“the petitioner”) of

Komagane, Japan respectfully petitions this Court for

a writ of certiorari to review the judgment of the Kansas

Supreme Court in this case.

OPINIONS BELOW

The Kansas Court of Appeals’ memorandum opinion,

the Kansas Supreme Court’s denial of the petitioner’s

motion to publish, and the Kansas Supreme Court’s

denial of the petitioner’s petition for review were not

published. The Kansas Supreme Court’s denial of the

petitioner’s petition for review is reproduced in the

appendix, hereto (“App.”’), at la. The Kansas Appellate

Courts’ memorandum opinion is reproduced at App.

2a- 16a. The Kansas Supreme Court’s denial of the peti-

tioner’s motion for publication is reproduced at App.

17a.

JURISDICTION

On September 24, 2004, the Kansas Court of Appeals

issued an unpublished opinion in this instant case, adverse

to the petitioner, affirming the trial court’s rulings. The

petitioner filed a timely motion for publication and he

also filed a timely petition for review of the Kansas Court

of Appeals’ opinion as a matter of right. The Kansas

Supreme Court denied the motion for publication on

October 26, 2004. The Kansas Supreme Court denied

the petition for review on March 1, 2005 without addres-

sing the claim of review as a matter of right. The juris-

diction of this Court is invoked under 28 U.S.C. § 1257-

(a).

NR IT

aaa

CONSTITUTIONAL PROVISIONS INVOLVED

The rulings raise questions under the equal protec-

tion of the laws clause of the fourteenth amendment

to the U.S. Constitution which provides that no state

can: “. . . deny to any person within its jurisdiction the

equal protection of the laws.” The Constitution of the

State of Kansas, Bill of Rights, Sections 1 and 2, speaks

to the possession of equal and inalienable natural rights

and to equal proection and benefit.

The Court of Appeals’ rulings also raise questions

under Section 5, of the Constitution of the State of Kan-

sas (as amended to 1975) which states: “The right of

trial by jury shall be inviolate.” The Court of Appeals’

rulings further raise questions under Article VII, of the

Constitution of the United States which states: “In

suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury

shall be preserved. . . .””

INTRODUCTION

This petition raises the issue of whether Kansas courts

must adhere to the mandates of the U.S. and Kansas

constitutions whose provisions guarantee the petitioner

with a right to trial by jury. This petition also raises the

issue of whether Kansas state courts must adhere to the

tests and standards established by this Court under the

equal protection of the laws clause of the fourteenth

amendment to the U.S. Constitution.

This petition further raises issues of state judicial

authorities ignoring governing statutes and precedent set-

ting cases in issuing dispositive opinions then refusing to

publish the opinions despite mandates imposed by their

own rules.

If the decisions and their analysis stand, there will

continue to be a class of U.S. citizens in Kansas who

will never be able to avail themselves of their right to

equal protection of the laws and their right to trial by

jury guaranteed them by the U.S. and Kansas Constitu-

tions. Kansas courts will continue operating in a judicial

feudalism in which citizens without rights owe homage to

the system.

STATEMENT OF THE CASE

Sellens is a United States’ citizen but has resided and

worked in Japan since 1992. In 1993, he learned of a

Japanese initiative to import panelized housing and deter-

mined to develop a business. (R.O.A., Vol. = Pp. 211,

para. 3). Sellens and family members formed Interna-

tional Education Services, Inc. (IES) to deal with the

complexities of doing business internationally. (Vol. 7,

p. 140, para. 2). By 1996, the housing import/export

venture had progressed to the point it was desirable for

Sellens to build a model U.S. home for potential Japan-

ese buyers to tour. (R.O.A., Vol. 2, p. 212, para. 2)

Sellens contracted with IES to build the house and, to

meet the city of Lakin, Kansas’ requirements, IES made

an application for general liability coverage with Doug

Geubelle (Geubelle) at The Agency in Lakin on August

21, 1996. (R.O.A., Vol. 7, p. 92, para. 4) Geubelle

placed the insurance with American States Insurance

Co., Inc. (ASI) and gave IES a certificate of insurance to

use for proving liability insurance coverage. (R.O.A.,

Vol. 4, p. 95) Sellens’ lender required him to have per-

sonal builder’s. risk insurance and Geubelle placed the

eee nee ne a

insurance with EMC Insurance. (R.O.A., Vol. 2, p.

(112 [p. 27 In. 4 - p. 28 In. 25] >

The city of Lakin issued IES a building permit and a

general contractor’s license based on the insurance cover-

age provided by ASI. (R.O.A., Vol. 7, p. 93, para. 5)

At a later date, James P. Bambick (Bambick) and ASI

altered the IES policy, number 01-CE-093721-1, to

identify Sellens and his brother, John, as the insureds.

(R.O.A., Vol. 4, p. 24, para. 2) An unknown person

altered the original IES insurance application, still in

possession of The Agency, by drawing a line through

applicant “International Education Services, Inc.” and

writing “Charles J. Sellens”. (R.O.A., Vol. 2, p. 104)

On November 10, 1996, Brian E. Groth (Groth)

suffered an injury while working on the project. (R.O.A.,

Vol. 3, p. 60, no. 12 & 13) On November 25, 1997,

Groth commenced a lawsuit in the District Court of

Kearny County, Kansas against Sellens-et. al. (R.O.A.,

Vol. 2, p. 187-188)

ASI and its agents employed Attorney Richard Mar-

quez (Marguez) to enter the case as the attorney for

Sellens, but excluded IES. (R.O.A., Vol. 7, p. 79, para.

2) On December 24, 1997, Sellens learned of the ex ist-

ence of Marquez and phoned him. (R.O.A., Vol. By

p. 63, 64, no. 23) Sellens informed Marquez that he had

not been served but Marguez asserted that service was not

an issue because he had already filed an entry of appear-

ance. Marquez further asserted that Sellens couldn’t

refuse representation because the policy granted Mar-

quez authority. (R.O.A., Vol. 2, p. 120 [p. 93, In. 1-

7))

ASI et. al. intended to have Marquez file a motion to

dismiss the Groth suit based on a theory of Groth’s

remedy being within the jurisdiction of workers compen-

sation. (R.O.A., Vol. 7, p. 79, para. 4) This pleading

would have identified Sellens as the employer of Groth

‘and subjected Sellens to civil and criminal penalties for

not having workers compensation insurance. (R.O.A.,

Vol. 3, p. 34-35)

This statement of the case has been accurately repro-

duced from the petitioner’s petition (R.O.A., Vol. 1,

pgs. 3-7). Kansas’ precedent cases grant the petitioner’s

description of events, the status of those which occurred.

See Robertson (p. 700, 472 P.2d p. 219) (Cited in Weil

& Assoc. v. Urban Renewal Agency of Wichita, Kan. 479

P.2d 876)

REASONS FOR GRANTING THE WRIT

BECAUSE THE KANSAS COURTS’ VIOLATIONS OF THE

CRUIKSHANK GUARANTIES PROHIBITING EXERTION

OF ARBITRARY AND TYRANNICAL POWER WILL

NEVER BE MORE EASILY RECOGNIZED THAN IN THIS

CASE.

On March 22, 1778, Anne Robert Jacques Turgot,

Baron De L’Aulne wrote Dr. Richard Price sharing his

opinion on the founding of the United States including:

“They (the Americans) are the hope of this world. They

may become its model.” The United States has done far

more than become the world model envisioned by Turgot.

It has become the world power that has been obligated

to engage in numerous wars to ensure that the rule of law

governs in other countries lest the rule of law be com-

Promised in its own. The U.S. is currently making pro-

found efforts to ensure that democracy and the rule of

law become the systems of choice in Afghanistan and

Iraq. Many U.S. governmental agencies have stated poli-

leh hh, eRe waive See

cies aimed at promoting democracy and the rule of law

in former Soviet bloc countries. Wright v. Wright, 904

Pacific Reporter, Second Series 403 (1995) defines “rule

of law”’ as:

**. . . an authoritative legal doctrine, principle, or

precept applied to the facts of an appropriate case

adopting the rule of law that is most persuasive in

light of precedent, reason and policy.”

This petition focuses on the Kansas Judicial System’s

refusal to provide the petitioner with treatment and rul-

ings based on the same rule of law that the U.S. has made

its foreign policy foundation. The petitioner begins by

identifying the Kansas Judicial System’s refusal to pro-

vide him with a cause of action under K.S.A. 40-2.118(a)

which reads:

‘“‘For purposes of this act a ‘fraudulent insurance act’

means an act committed by any person who, know-

ingly and with intent to defraud, presents, causes to

be presented or prepares with knowledge or belief

that it will be presented to or by an insurer, pur-

ported insurer, broker or any agent thereof, any

written statement as part of, or in support of, an

application for the issuance of, or the rating of an

insurance policy for personal or commercial insur-

a es

The petitioner has consistently maintained that the

statutory language in K.S.A. 40-2, 118 instructs that an

insured may maintain an action against an insurer and/or

its agents for fraudulent acts.!

Ores

IThe issues were before this Court in Sellens v. American

States Insurance Co., Inc., Docket No. 04-227. In the companion

case, the Kansas Appellate Courts issued its first, and only, opinion

on the newly passed K.S.A. 40-2, 118, Fraudulent Insurance Act

[footnote continued]

The appellate court disposed of the issue in this instant

case by scribing that it didn’t: “. . . feel compelled to

reach the merits of the plaintiff's argument that the dis-

trict court erred by (1) failing to find the defendants in

violation of K.S.A, 40-2, 118;...” The trial court and

the appellate court’s silence on the issue has obliged the

petitioner to argue that he has causes of action in addi-

tion to those granted by the Fraudulent Insurance Act.

He sought recognition of his contractual, fiduciary status

with all respondents.

First, the petitioner has consistently and reasonably

argued that the fraudulent acts by ASI and its agents

must be judged by standards imposed by contractual,

fiduciary relationships. For prima facie evidence of a

written contract, this Court need only look at the insur-

ance policy that identifies the petitioner as a named

insured. (R.O.A., Vol. 3, p. 119-116)

The Appellate Courts’ opinion, without precedent cita-

tion, is that under the petitioner’s theory, “. . . the con-

tract was between American States and IES and any

cause of action for changing the named insured would lie

with the corporation.” However, the pleadings identify

the petitioner’s claims for damages caused by fraudulent

acts committed many months after he was fraudulently

identified as a named insured and that his causes of act-

ion was provided for in the Fraudulent Insurance Act.

Confusingly, the ruling seems to imply that IES would

have been permitted to maintain a cause of action for

and found it limited “. . . . to criminalize fraudulent acts commit-

ted against insurers and their agents.” The opinion was unpub-

lished assigning the petitioner with the burden of accepting the

ruling, applying only to him, without regard to the rule of law.

This Court denied the petitioner’s Petition for Writ of Certiorari

on November 1, 2004.

damages suffered by the petitioner. These are issues of

first impression therefore unsuitable for summary judg-

ment as a matter of law. See Bergstrom v. Noah, 266

Kan. 847, 872, 974 P.2d 531 (1999)

The petitioner’s theory, that ASI had no rights under

the policy but that ASI had: “. ... the most profound

obligations an insurance company ever imposed upon

itself.” (R.O.A., Vol. 6, p. 126, para. 3) finds support

in Batley v. Talbert which states: “Where one has agreed

and definitely bound himself to perform contract, he

cannot be heard to say that he cannot do so.” 294 P.2d

220, 179 Kan. 169 (1956) See also Meyer v. Diesel

Equipment Co., Inc., 570 P.2d 1374, 1 Kan. App. 2d

574 (1977)

Secondly, the petitioner has consistently argued that

Marquez’s fraudulent acts must be judged under stand-

ards imposed by a contractual, fiduciary relationship.

For prima facie evidence, this Court need only look at

Marquez’s entry of appearance as attorney for the peti-

tioner in the Groth suit. (R.O.A., Vol. 3, p. 183) |

The Kansas Court of Appeals’ identified the petition-

er’s claim against Marquez as: “. . . .(2) a conflict of

interest of the attorney hired by the insurance company

to defend Sellens.” The appellate court limited the issue

by finding that: .... “notwithstanding any contractual

relations, Sellens’ cause of action sounded in tort rather

than in contract.”’ This too is an issue of first impression

therefore unsuitable for summary judgment as a matter |

of law. Bergstrom (op. cit.)

The appellate court disposed of the issue with a ruling

of untimeliness when it opined: “The record establishes

that Sellens perceived, no later than December 1997, that

he had been injured by defendants’ actions and, thus, the |

clock began running; his February 2000 claim was

untimely.” Since there is no precedent, reason limits the

time from which to start the clock for Marquez to no

earlier than December 12, 1997, Marquez’s date of entry

of appearance. (R.O.A., Vol. 3, p. 183) Marquez’s with-

drawal date was July 27, 1998. (R.O.A., Vol. 3, p. 66,

no. 27) Marquez’s fraudulent acts were committed in

March through July of 1998. (R.O.A., Vol. 4, p. 78, 133

& 150) (R.O.A., Vol. 6, p. 117-200) (R.O.A., Vol. 7,

p. 99)

The appellate court’s opinion starts the clock for dis-

covering Marquez’s fraud three (3) to seven (7) months

before the fraud was committed. There was no prece-

dent cited for the ruling that effectively reduced the stat-

utes of limitations sounding in tort from two (2) years

to seventeen (17) months. Of importance, the record

actually establishes that it was IES and not the petitioner

that perceived no later than December that it had been

injured by defendants’ actions.

Another issue relating to the finding of untimeliness

pertaining to Marquez is that he created a client file dur-

ing the time he was the petitioner’s attorney of record in

the Groth suit. The petitioner demanded the file after

Marquez’s withdrawal as attorney of record. Marquez

refused to surrender the file claiming that it was his per-

sonal property. Re Dill, 253 Kan. 195, 8535 P.2d

696 (1993) and re Jackson, 255 Kan. 542, 874 P.2d

643 (1994) identifies sanctions imposed upon attorneys

who refused to provide their clients with their files upon

demand. (R.O.A., Vol. 6, p. 9-10)

The petitioner filed his petition in February 2000 and

was only permitted by the trial court to view the file

via a discovery request. The petitioner’s petition was

not untimely but even if it had been, Marquez’s fraudu-

lent concealment of the file’s contents tolled the running

of the statutes of limitations until July 3, 2000 when the

petitioner was permited to view the file. (R.O.A., Vol.

4, p. 4, para. 3)

And thirdly, the petitioner has consistently asserted

that the fraud committed by The Agency and Geubelle

must be judged by standards imposed by contractual,

fiduciary relationships. The appellate court found:

*““As was the case with American States, any breach

of contract claim seems to be with the corporation

rather than Sellens. IES employed Geubelle and

The Agency to procure the insurance policy. A

cause of action for breach of contract in procuring

the policy should rest with IES.”

The opinion ignores that the petitioner’s theory was the

respondents’ initial acts of altering an insurance policy,

their subsequent acts attempting to validate the policy,

and/or their attempts to conceal their fraudulent acts

were violations of K.S.A. 40-2, 118, the Fraudulent

Insurance Act.

Importantly, the record reveals that the petitioner had

a long term contractual relationship with The Agency and

had personal vehicles insured through The Agency when

ASI insured IES on August 21, 1996. -(R.O.A., Vol. 2,

p. 212, para. 5) The contractual relationship is under-

scored by the petitioner’s letter to Geubelle dated Dec.

9, 1998 concerning the issue of Geubelle not notifying

the petitioner’s lawful insurance company, EMC, of

Groth’s accident and lawsuit. (R.O.A., Vol. 2, p. 316)

The standard of Kansas appellate review of the trial

court’s rulings for respondents’ motions for summary

judgment is stated in Bergstrom:

“Summary judgment is appropriate under K.S.A.

60-256 if... the movant is entitled to judgment as

a matter of law.' The Court must resolve all facts

and inferences reasonably drawn in favor of the

non movant.” Bergstrom (op. cit.)

The appellate court rendered judgment, without regard

to Bergstrom’s instructions that the movant be entitled to

judgment as a matter of law, when it found, without pre-

cedent, that the petitioner did not have fiduciary rela-

tionships with any of three defendant entities.

The petitioner’s initial knowledge of the particulars

involved in the production of the fraudulent policy was

far too limited to allege fraud with the particularity

required by K.S.A. 60-207(b). In March 1998, the peti-

tioner filed a complaint with the insurance commissioner

against all those who he knew limited to: Geubelle, The

Agency, Cauldron and ASI. An investigator required

ASI et. al. to furnish copies of logs and other documents.

ASI et. al. altered the furnished copies of logs rendering

them unreasable until treatment by the petitioner in

March 1999. (R.O.A., Vol. 4, p. 109-119) This altera-

tion constitutes fraudulent concealment that bars the

application of statutes and limitations.

The petitioner’s cause of action against Ecrement,

et. al. raises the issue of the fraud discovery day in

March 1999.

. .. The Plaintiff (Sellens) claims in his response to

these motions that he discovered the fraud when he

reviewed certain logs in March of 1999 and that he

should be permitted additional discovery to attempt

to defeat the statute of limitations bar.” (R.O.A.,

Vol. 6, p. 429, no. 9)

The trial court’s finding recognized the fraud discovery

date in March 1999 for fraudulent acts committed by

McClellan, Ecrement, Eisele, Marquez, and Cauldron but

still assigned the date for starting the clock for fraud dis-

covery in December 1997. On another issue pertaining

to untimeliness, Chalmers, attorney for Ecrement, et.

al., stipulated that there would not be a challenge on the

basis of untimeliness if ASI's own litigation, 98 C 13,

were dismissed. (R.O.A., Vol. 3, p. 29, no. A) The

petitioner called this to the trial court’s attention several

times without disagreement from any party. (R.O.A.,

Vol. 3, p. 44, para. 2) (R.O.A., Vol. 6, p. 316, para. 6 -

p. 317, para. 1)

In Anderson v. Bill Morris Constr. Co. Inc., 25 K.A.2d

603, 606, 966, P.2d 96 (1998), the Kansas Court of

Appeals addressed the issue of an untimely appeal and

quoted from 4A Wright and Miller, Federal Practice and

Procedure: Civil 2d paragraph 1168 (1987), as follows:

“When employed in the context of an untimely

appeal, ... The Supreme Court seems to have con-

cluded that a party ought not be denied an oppor-

tunity to appeal because of his failure to file a

timely appeal when that failure resulted from reli-

ance on action taken by the district court that

generated a reasponable belief that an appeal could

be initiated at a later date."’ (Emphasis added)

Under a theory of unique circumstances, the petitioner

was entitled to rely on what appeared to him to be a

commitment that his issues could be continued in this

instant case. The appellate court dismissed the issue by

explaining that it didn’t: “. . . feel compelled to reach

the merits of Sellens’ argument that the district court

erred by . . . (4) erroneously granting the motions to

dismiss . . . McClellan, . . . Ecrement, .. . Eisele, and...

Cauldron. .. .”*

2 The issue of the Kansas Judicial System's disregard for the

necessity of precedents was before this Court in Sellens et ux. v.

Groth, et al., Docket No. 04-982. In the related case, the trial

[footnote continued]

eee ee

As with Marquez, these respondents’ fraudulent acts

were committed in March through July of 1998. (R.O.A.,

Vol. 4, p. 78, 133 & 150) (R.O.A., Vol. 6, p. 117, 200)

(R.O.A., Vol” 7, p. 96 & p. 99) As with Marquez, the

appellate court’s opinion starts the clock for discovering

fraud three (3) to seven (7) months before the fraudulent

acts were committed. As with Marquez, no authority

was cited as a precedent in which the effective time for

fraud discovery sounding in tort had been reduced from

two (2) years to seventeen (17) months.

In ruling favorably for respondents’ motions for

summary judgment and motions to dismiss, the appellate

court stated that the plaintiff “. . . . cannot simply rely

on his own averments to create genuine issues of mater-

ial fact." However, Cauldron, McClellan, Ecrement, and

Eisele only responded to the petitioner’s petition with

motions to dismiss thereby admitting to the truthfulness

of the petitioner’s allegations. The petitioner is entitled

to rely on his own averments to create genuine issues of

material fact pertaining to Cauldron, McClellan, Ecre-

ment, and Eisele. See Robertson (op. Cit.) (Cited in

Weil, op. cit.)

Statutory accrual of the petitioner’s cause of action is

governed by K.S.A. 2003 Supp. 60-513(b) which in-

cludes; “*. . . the causes of action listed in subsection (a)

shall not be deemed to have accrued until the act giving

rise to the cause of action first causes substantial in-

court was quite open about its disregard for the rule of law. It was

most graphic during a July 16, 2002 hearing in which the peti-

tioner began to cite Phillips v. Carson as a governing precedent for

justifying deposing certain shareholders of the defendant law firm.

The trial court cut him off with: “I don’t want any case law.”

This Court denied the petitioner’s Petition for Writ of Certiorari

on March 28, 2005.

jury,. .” The petitioner did not suffer non recoverable

damages until the time frame ended for the special

Japanese government program for importing housing.

(R.O.A., Vol. 7, p. 25, no. 28) He filed his petition less

than one (1) year later. (R.O.A., Vol. 7, p. 25, no. 29)

Additionally, Bryson v. Wichita State University, is a

relevant precedent that states: “Issue when substantial

injury first appeared or been reasonably ascertainable in

fraud case is a question of fact not proper for decision

by summary judgment.” 19 K.A. 2d 1104, 1106, 880

P.2d 800 (1994)

The petitioner’s petition was not untimely but even if

it had been, the circumstances in this case are so egreg-

ious as to render the application of any statute of limi-

tations unconsciounable. The source for this position

is contained in “Waiver of bar of statute: estoppel”

D. Kan. “Under New York law, promissory estoppel

may bar application of the Statute of Frauds if the cir-

cumstances are so egregious as to render the application

unconscionable. N.Y. McKinney’s general Obligations

Law para. 5-701, subd. a, par. 1” cited in Mellon v.

Cessna Aircraft Co., 28 F.Supp. 2d 1304 (1998).

In his pleadings, the petitioner identified violations of

Kansas Supreme Court Rule 165 that requires the trial

court to state the controlling facts required by K.S.A.

60-252 and the legal principles controlling the decision.

The petitioner cited rule 165 violations in the issue of

incomplete discovery; the opinion that there was no con-

tract between Marquez and himself; the dismissal of his

cause of action against McClellan, Ecrement, Eisele, and

Cauldron; the court’s granting numerous motions by

defendants for protective orders, and the opinion that

there was no contract between and among the petitioner,

The Agency and Geubelle.

The district court could not have made its rulings had

it properly observed its Hanks mandate. “In entering

summary judgment pursuant to K.S.A. 60-256, a district

court is required by Supreme Court Rule 165 to state the

controlling facts and the- legal principles controlling the

decision.”” Hanks v. Riffe Constr. Co., 232 Kan. 800,

802, 658 P.2d 1030 (1983)

The record shows that the Kansas Judicial System has

ignored its own rules, numerous case precedents and

several governing statutes in this instant action. In so

doing, the Kansas Judicial System has denied the peti-

tioner with equal protection of its laws guaranteed him

by the fourteenth amendment to the U.S. Constitution

which instructs:

“

. . » » No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Founding fathers of the U.S. and Kansas have granted

the petitioner the right to a jury trial, guaranteeing him

with protection from being subjected to any judge’s

personal preference for how a case should be resolved.

The right to a trial by jury was a privilege held by Amer-

ican subjects of English King George III in 1776. Yet,

the signers of the Declaration of Independence needed

more and described numerous ways in which King George

III had attempted to enforce “tan absolute tyranny over

these states.” The right to a trial by jury is widely

believed to be one of American’s most cherished rights

and one which the petitioner does not want to see re-

placed by unlimited discretion of Kansas district court

judges.

Section 5, of the Constitution Of The State Of Kan-

sas and Article VII of the US Constitution grants the peti-

tioner the right to a jury trial. The appellate court dis-

missed the issue with the opinion that the issue: “‘. . . re-

quires no discussion for anyone with a modicum of legal

knowledge.” The petitioner is due more than dismissive

language to explain his apparent loss of constitutional

rights to trial by jury. This Court should grant this peti-

tion for writ so this question can be answered for the

information and benefit of every U.S. citizen.

In Rumsfeld, this Court considered the constitutional

rights of Padilla, who had been designated by the U.S.

President as an “enemy combatant” .... ‘Based on the

information available to [him] from all sources... .”

and that Padilla is “. . . . closely associated with al Qaeda,

an international terrorist organization with which the

United States is at war.’”? Rumsfeld v. Padilla et. al.,

Docket No. 03-1027, Decided June 28, 2004.

With all due respect to this Court, given the impor-

tance it places on the constitutional rights of citizens

with standings like Padilla, citizens with standings like the

petitioner are due more than the Kansas Appellate Courts

dismissal of the petitioner’s expectations for decisions

based on the rule of law as simply being . . . “pro se

fantasies”.

II.

BECAUSE THE FINDINGS ARE IN CONFLICT WITH

INSTRUCTIVE LANGUAGE IN KANSAS STATUTES,

PREVIOUS KANSAS DECISIONS, AND ARE FURTHER

IN CONFLICT WITH DECISIONS OF THIS COURT,

OTHER FEDERAL COURTS OF APPEALS, AND OTHER

STATE SUPREME COURTS.

United States v. Morrison et al., No. 99—5 2001

invites scrutiny of the Appellate Court’s opinion under

the reading that laws should be uniform throughout the

nation. The petitioner can not find any precedent in

Kansas, nor in any other state, with a similar fact situa-

tion and no other party has cited any. However, there

are scores of Kansas cases that provide guidance that the

petitioner does have causes of action against the respond-

ents including:

Marshel Investments, Inc. v. Cohen, Kan. App. 634

P.2d 123 which sets forth the history of well established

principle of law that an insurance agent or broker who

undertakes to procure insurance for another and there-

after neglects or fails to do so, will be held liable for any

damage resulting therefrom. (Emphasis added)

In Marker v. Preferred Fire Ins. Co., 211 Kan. 427,

506 P.2d 1163 (1973), the opinion includes:

- . + . “In support of this position plaintiff relies

upon the well established principle of law that an

insurance agent or broker who undertakes to pro-

cure insurance for another and thereafter neglects

or fails to do so, will be held liable for any damage

resulting therefrom.” (Emphasis added)

Both Marshel and Marker instruct that the agent or

broker is to be held accountable for any damages and can

not be read to exclude the petitioner in this instant case.

The Kansas Judicial System seemingly opted to ignore

the Marshel and Marker guidance and exclude the peti-

tioner from any cause of action then further opted not to

publish what would have been its dramatic precedent

altering opinion.

There are scores of precedent setting cases in other

jurisdictions in which the courts have properly recog-

nized that insurance companies and/or their agents do

not have privileged status. Some include the Michigan

Supreme Court’s observation that the tripartite relations

among an insurance company, its insured, and legal

counsel employed to defend its insured carries:

“, . . . rife possibilities of conflict which unques-

tionably runs against the insured, considering that

defense counsel and the insurer frequently have a

long standing, if not collegial, relations.’? Atlantic

International Insurance Co. v. Bell, 475 N.W.2d

294 (1991)

In Tank, the State of Washington Court included:

“The potential conflict of interest between an

insured . . . mandate an even higher standard: an

insurance company must fulfill an enhanced obli-

gation to its insured as part of its duty of good

faith. Failure to satisfy this enhanced obligation

may result in liability of the company or retained

defense counsel, or both.” Tank v. State Farm

Fire & Ascualty Co., 105 Wash. 2d 381, 715 P.2d

1133 (1986).

Pacific Mutual Life Insurance Co. v. Haslip et al.

includes:

‘“. . . . Alabama’s longstanding common-law rule

that an insurer is liable for both compensatory and

punitive damages for the intentional fraud of its

agent effected within the scope of his employment

rationally advances the State’s interest in minimizing

fraud, since that rule creates a strong financial

incentive for vigilance by insurers.” (89-1279),

499 U.S. 1 (1991)

The absence of precedent citations by any party, num-

erous rulings that conflict with Kansas statutes and case

law, and the refusal to publish what would be a dramatic

precedent opinion, are central to the petitioner’s appeal

to this Court. The petitioner -asserts that there is no

statute or precedent case supporting the opinion in this

instant case. Any authority that would deny a named

insured equal protection with his/her insurance company

and/or agent would be under continuous challenge for

being in violation of Amendment XIV to the U.S. Con-

stitution. An issue in deciding if there has been a viola-

tion of the protection guaranteed by the fourteenth

amendment has often been in determining if the act

can be attributed to the State. The purpose and effect

of the fourteenth amendment was clearly stated by Mr.

Justice Bradley in the case of U.S. v. Crutkshank, 1

Woods 316:

“It is a guaranty of protection against the acts of the

state government itself. It is a guaranty against the

exertion of arbitrary and tyrannical power on the

part of the government and legislature of the

QM cae

Other cases include Virginia v. Rives, 100 U.S. 313, in

which is stated: “. . . . these provisions of the fourteenth

amendment have reference to state action exclusively,

and not to any action of private individuals.” Lugar

includes: ‘“‘State action requires both an alleged constitu-

tional deprivation caused by acts taken pursuant to state

law and that the allegedly unconstitutional conduct be

fairly attributable to the State.”” Lugar v. Edmondson Oil

Co., 457 U.S. 922, 937.

Under Cruikshank, Rives and Lugar’s guideposts, this

case should be neither close nor difficult. K.S.A. 40-2,

118, Fraudulent Insurance Act, is a special statute that

has been enacted by the state of Kansas thus it takes pre-

cedent over common law and other statutes. ‘When a

statute conflicts with the common law, the statute con-

trols”. Tatwo v. Vu, 822 P.2d 1028 (Kan. 1991) “A

special statute relating to particular persons or things

takes precedence over general statute.”’ Stanton v. KCC,

2 K.A.2d 228, 229, 577 P.2d 1201. If this special

statute does not provide the petitioner equal protection

with ASI and its agents it is obviously in violation of the

equal protection clause of the fourteenth amendment to

the U.S. Constitution.

Il.

BECAUSE KANSAS COURTS WILL CONTINUE TO IG-

NORE STATE STATUTES, CASE LAW, AND THEIR OWN

RULES UNTIL THE ISSUE IS RESOLVED BY THIS

COURT.

The unpublished opinion in this case is valuable for

this Court because it presents an easily recognized written

record of the lack of constraint by the Kansas Judicial

System.> The more common complaint, in the federal

5The issue of the Kansas Court of Appeals’ issuing disposi-

tive opinions without stating reasons was before this Court in

Sellens, et ux. v. Groth et al., Docket No. 04-982. In the related

case, the Kansas Appellate Courts affirmed the trial court’s deci-

sion with: ‘The district court’s detailed written ruling is sufficient

to support a summary affirmance on the summary judgment issue.

Affirmed under Supreme Court Rule 7.042-(d) (203 Kan. C.R.

Annot. 50).” This Court denied the petitioner’s Petition for Writ

of Certiorari on March 28, 2005.

court appellate court system, is of no written record at

all of reasons for decisions.

“The most dramatic evidence of the importance

which attorneys attach to a written record of the

reason for a decision can be found in the view

expressed by more than two-thirds of the attorneys

surveyed that the due process clause of the constitu-

tion should be held to require courts of appeals to

write at least a brief statement of the reasons for

their decisions.’”” — Recommendations For Change

50, Commission On Revision Of The Federal Court

Appellate System, Structures and Internal Pro-

cedures, (1975)

The petitioner is before this Court complaining of the

arbitrary and tyrannical opinions collectively rendered

by the Kansas Judicial System. He is further complaining

of the Kansas judicial system’s nearly incontestable

ability to issue unpublished opinions without regard to

the rule of law. Black’s Law Dictionary 1092 (6th ed.

1990) defines “opinion” as a statement by a judge or a

court of the decision reached to a cause tried or argued

before them, expounding the law as applied to the case,

and detailing the reasons upon which the judgment is

based. The opinion in this instant case is void of required

law and/or reasons.

The petitioner filed a motion to publish the opinion

identifying the inattention given to the rule of law. He

cited K.S.A. 60-2106 and Kan. Ct.R. Anno. 7.04(a) that

dictates publication of opinions that establishes new rules

of law. K.S.A. 60-228(c) identifies expectations that

reporters be unbiased and objective. The record in this

instant case identifies a situation in which a reporter has

been anything but unbiased and objective and has been

permitted to withhold the petitioner’s evidence. This

situation decides new rules of law pertaining to K.S.A.

60-228(c) that meets cited grounds for publication.

K.S.A. 2003 Supp. 60-513(b) includes: ... . “the

causes of action listed in subsection (a) shall not be

deemed to have accrued until the act giving rise to the

cause of action first causes substantial injury” .... The

unpublished opinion would establish new rules of law

that meets cited grounds for publication by rendering

moot the instructions in K.S.A, 2003 Supp. 60-513{b).

K.S.A. 60-215 governs filing amended petitions but

does not instruct a litigant to submit a copy of the pro-

posed amended petition with the motion. The appellate

court’s opinion requires a copy of the proposed amended

petition to be attached to the motion. The appellate

court’s opinion establishes new rules of law that meets

cited grounds for publication,

Kan. Ct.R. Anno. 7.04(b) dictates publication of

opinions that involves legal issues continuing public

interest. The complex, tripartite relationship among

(i) statutes, case laws, and municipal requirements

demanding purchase of liability insurance; (ii) the multi-

billion dollar insurance industry itself; and (iii) the insur-

ance industry’s command clients, the general public;

makes the unpublished opinion a legal issue of profound

continuing public interest thus Kan. Ct.R. Anno. 7.04(b)

mandates publication.

Kan. Ct.R. Anno. 7.04(a) dictates publication of opin-

ions that modify rules of law. Bailey v. Talbert (op. cit.)

provides that: “Where one has agreed and definitely

bound himself to perform contract, he cannot be heard

to say that he cannot do so.” Meyer v. Diesel Equip-

ment Co., Inc., (op. cit.) instructs: “When one contracts

to perform an act possible in itself, he will be liable for

a breach thereof... .” The appellate court’s opinion

thats * .. . the contract was between American States

and IES and any cause of action for the changing of the

named insured would lie with the corporation.” modi-

fies Bailey and Meyer thus meeting Kan. Ct.R. Anno.

7.04(a) standards mandating publication.

Cauldron, McClellan, Ecrement, and Eisele only res-

ponded to the petitioner's petition with motions to dis-

miss. Robertson (op. cit.) (Cited in Weil, Op. cit.) in-

structs: “. . . . The motion in such case may be treated

as the modern equivalent of a demurrer.”” The appellate

court’s opinion requiring the petitioner to come forth

with evidence to hold his claim against these four res-

pondents’ motions to dismiss modifies Robertson and

Weil thus meeting Rule 7.04(a) publication standards.

Jenkins v. McCormick, 339 P.2d 8, 184, Kan. 842,

and Tetuan v. A.H Robins Co., 738 P.2d 1210, 241

Kan. 441 (1987) instructs that if facts are concealed that

are particularly within knowledge of one party and of

such a nature that the other is justified in assuming their

non existence, there is a duty of disclosure, and delib-

erate suppression of such fact is fraud.

Friends University v. W.R. Grace & Co., 227 Kan.

559, 564, 608 P.2d 936 (1980) includes that caveat

that: “. ... in the absence of a fiduciary or confidential

relationship, there must be something of an affirmative

nature designed to prevent... .” The unpublished

opinion in this case modifies Jenkins, Tetuan and Friends

University by deleting the language that imposes more

stringent standards on parties committing fraud against

persons with whom they have a fiduciary relationship.

This change mandates the opinion’s publication per Kan.

Ct.R. Anno. 7.04(a).

lai

Gottstein National Ass’n for Self-Employed, 53 F.

Supp. 21, 1212 Kan. (1999) instructs: “. ... Under Kan-

sas law, fiduciary relations may be created contractual,

e.g. attorney/client or implied from the circumstance

....". The unpublished opinion rendering the petitioner

without contractual rights modifies Gottstein meeting

Kan. Ct.R. Anno. 7.04(a) publication standards.

Keith v. Schiefen-Stockham Insurance Agency, Inc.,

instructs:

“A broker or agent who undertakes to procure

insurance for another and through his fault or

neglect fails to do so will be held liable for any

damage resulting therefrom; agent has duty to

exercise reasonable care, skill and diligence in

effecting the insurance, and may be sued for breach

of contract or negligent default in performance of

duty imposed by contract.” Keith, 498 P.2d 265

(1972).

The unpublished opinion renders the petitioner with-

out contractual rights with The Agency and Geubelle

thereby modifies Keith by limiting its applicability of

damages to IES. The opinion effectively deletes Keith’s

language of: “. . . . will be held liable for any damage

resulting therefrom ....” thus meeting Kan. Ct.R. Anno.

7.04(a) standards mandating publication.

In West v. Prairie State Bank, the court stated: “Sum-

mary judgment rendered only if no genuine issue as to

any material fact and movant entitled to judgment as a

matter of law.” 200 K. 263, 267, 436 P.2d 402. The

appellate court’s opinion modified West by rendering

judgment, without any precedent, when it found that the

petitioner did not have fiduciary relationships with any

of three defendant entities. These findings meet Kan.

Ct.R. Anno. 7.04(a) standards mandating publication.

cieiitiiii

Re Dill, 253 Kan. 195, 8535 P.2d 696 (1993) and

re Jackson, 255 Kan. 542, 874 P.2d 643 (1994) are

precedent cases in which attorneys were sanctioned,

in part, for failure to produce client files on demand.

The appellate court opined that: “. ... the district court

found that the plaintiff had been given the opportunity

to inspect and copy the file and that delivery of pos-

session of the original file was not required.” The unpub-

lished opinion clearly modifies Dill and Jackson, thus

mandating publication per Kan. Ct.R. Anno. 7.04(a).

Bryson v. Wichita State University, (op. cit.) is a

precedent case in which the Court ruled: “Issue when

substantial injury first appeared or been reasonably

ascertainable in fraud case is a question of fact not

proper for decision by summary judgment.” This opin-

ion clearly modifies Bryson by ruling on the date when

substantial injury first appeared in a fraud case thus it

meets cited grounds for publication.

State v. Ford, 23 Kan. App.2d 248, 241, 930 P.2d

1089 (1996) and State v. Collins, 195 Kan. 659, 700,

408 P.2d 639 (1965) instructs that:

.... the discretion lodged within a court is not a

boundless, but a judicial discretion . . . with regard

to what is right and equitable under the circum-

stance and law.”

The unpublished opinion modifies Ford and Collins

by making “judicial discretion” boundless thus meets

cited grounds for publication.

Kan. Ct.R. Anno. 7.04(d) dictates publication of

opinions that applies an established rule of law to a fac-

tual situation significantly different from that in pub-

lished opinions of the courts of this state. The issues in

this instance case are factual situations significantly dif-

‘

ferent from those in published opinions of the state of

Kansas thus deserving of publication.

It was simply not possible to publish the opinion with-

out rendering several Kansas statutes moot and dramatic-

ally modifying existing case law. Instead of reversing the

faux opinion, the Kansas Supreme Court simply denied

the motion to publish. (App. 17a)

The petitioner can not find any academic research

studying abuses permitted by unpublished, dispositive

opinions in Kansas. However, there is anecdotal evidence

that citizen maltreatment by judicial authorities is wide-

spread. Reynolds & Williams studied numbers and effects

of unpublished opinions in the federal circuit courts.

Their study revealed in the 1978-79 reporting years, over

sixty percent (60%) of appeals were being dispose of via

unpublished opinions. See William Reynolds & William

Richard, An Evaluation of Limited Publication in the

United States Court of Appeals: The Price of Reform, 48

U. Chi. L. Rev. 573, 586 (1981). Reynolds and Richman

were critical of the quality of the unpublished opinions

and stated, “. . . anyone who reads even a small number

of unpublished opinions must conclude, given their

brevity and informality, that considerable effort has

been spared in their preparation.” They examined the

degree that each circuit court stated its rational for it

rulings and reported that fifty-nine percent (59%) of the

unpublished opinions were made with “. . . no discern-

able justification.” Reynolds & Richman 594-95 (op.

cit.)

Chief Judge Howard T. Markey spoke in the vernacular

and called unpublished opinions “junk”. Remarks at

the Seventh Annual Judicial Conference of the United

States Court of Appeals for the Federal Circuit, 128

eerie

F.R.D. 409, 413 (1989). In a speech at Washington

Hebrew Congregation, Justice Scalia was noted saying

that while baseball umpires do not give reasons for their

decisions, judges must. Antonin Scalia, The Press And

The Law. (March 1990

Justice Stevens’ dissenting opinion in Connecticut

Board of Pardons v. Dumschat recognizes the need for

explanations for decisions and assurances to litigants that

like cases were being decided in a similar way:

“The judges (in former times) were guided by few

written laws, but developed a meaningful set of rules

by the process of case-by-case adjudication. Their

explanation of why they decided cases as they did

provided guideposts for future decisions and an

assurance to litigants that like cases were being

decided in a similar way. Many of us believe that

those statements of reason provided a better guar-

antee of justice than could possibly have been des-

cribed in a code written in sufficient detail to be

fit for Napoleon.” 452 U.S. 458, 472 (1981)

(Steven, J., dissenting)

IV.

THIS CASE SHOULD BE NEITHER CLOSE NOR DIFFI-

CULT TO DECIDE. NO FACTS ARE IN DISPUTE.

GRANTING THE WRIT IS NECESSARY TO BEGIN THE

PROCESS OF REINSTATING THE RULE OF LAW IN

KANSAS.

The impact of this Court granting the writ will be

tremendous. This petition identifies a faux opinion that

would decide new questions of law; be valuable as prece-

dents; establish new rules of law; involve legal issues con-

tinuing public interest; explain existing laws; modify

existing laws; apply established rules of law to factual

situations significantly different from that in published

opinions of the courts of Kansas; resolve apparent con-

flict of authorities, yet went unpublished. This practice

can noi long be tolerated in a country that was founded

because citizens demanded a government whose auth-

orities were granted by those being governed. A govern-

ment whose responsibilities and power to exact obed-

ience were stated in its written constitution and bill

of rights and where disputes were fairly administered by

courts of law.

Judges in the Kansas Judicial System are clearly

unconcerned about what has been thought to be the main

constraint on judges, that being the obligation to reach

decisions that are justified by the law and not simply the

judge’s personal preference for how a case should be

resolved. See Philip Soper, A Theory of Law (1984).

There is no reason to believe that the Kansas Judicial

System will reform itself. Until the issues have been

resolved by this Court, judges in Kansas district courts

will continue to make decisions based on only their per-

sonal preferences and the appellate system will continue

to affirm these personal preferences without regard to the

rule of law. This Court should grant review to resolve

these issues and reinstate the rule of law in Kansas.

CONCLUSION

For the foregoing reasons, the petitioner respectfully

submits that this Petition for a Writ of Certiorari to the

supreme Court of Kansas should be granted.

Respectfully submitted,

CHARLES J. SELLENS

Plaintiff, Pro se

Uwabu Sakae-machi 10-7

Komagane-Shi;

Nagano-Ken 399-4115

Japan

8 1-265-82-4417

APPENDIX A

[Filed Mar 1 2005]

IN THE SUPREME COURT

OF THE STATE OF KANSAS

District Case No. 01C4 KE

Supreme Court Order

Case No. 03-90976-A

Charles J. Sellens Fe Pro Se

Uwabu Sakae-Machi 10-7

Komagane-Shi Nagano-Ken

399-4715 Japan Case No. 03-90976-A

Charles J. Sellens, Appellant,

American States Ins., Co., et al., Appellees.

You are hereby notified of the following action taken

by the Court:

Petition for Review by Charles J. Sellens Pro se

Considered by the Court and denied.

Date: 03/01/2005.

Carol G. Green

Clerk

APPENDIX B

[Filed December 18, 2004]

[NOT DESIGNATED FOR PUBLICATION]

No. 90,976

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS

CHARLES J. SELLENS,

Appellant,

AMERICAN STATES INSURANCE COMPANY, et al.,

Appellees.

MEMORANDUM OPINION

Appeal from Kearny District Court; THOMAS F.

RICHARDSON, Judge.

Opinion filed September 24, 2005. Affirmed.

Charles J. Sellens, appellant pro se.

Jason R. Whitener, of Gehrt & Roberts, Chartered, of

Topeka, for appellees The Agency and Doug Geubelle.

Arthur S. Chalmer, of Hite, Fanning & Honeyman,

L.L.P., of Wichita, for appellee American States Insur-

ance Company.

Before JOHNSON, P.J., MALONE, and HILL, JJ.

EEE

Per Curiam: Charles Sellens appeals the dismissal of his

claims against a host of named defendants and raises

numerous alleged trial errors. Sellens’ pro se brief enum-

erates 35 issues, many of which are obfuscated and all of

which are without merit. We affirm.

The parties are familiar with the facts, and we will

not recite them here. We do observe that apparently a

coloring factor in the filing of this lawsuit was Sellens’

belief that the named defendants conspired against him

in retaliation for a boundary dispute Sellens previously

had with Steve McCormick. McCormick was apparently

on the board of directors of The Agency, which was the

agent for American States Insurance Company (American

States), which issued a general liability policy that was

involved in the dipute.

Sellens offers several arguments challenging the pro-

priety of the granting of summary judgment, designat-

ing each argument as a separate issue. We take the liberty

of attempting to reorganize and group the issues for dis-

cussion. Sellens challenges the propriety of the district

court ruling on summary judgment motions prior to ruling

on his motion for a change of judge. He offers a factual

account of his change of judge motion but fails to present

legal argument and authority. Pursuant to supreme court |

rule 6.02(e) 2003 Kan. Ct. R. Annot. 35) the issue is not

properly briefed and we need not address it. See Enlow

v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d

617 (1991). We do note, however, that the record would

not support Sellens’ position.

Sellens argues that the district court limited his discov-

ery, impairing his ability to respond to the summary

judgment motions. He fails to identify the relevant evi-

dence which he was unable to discover.

“Ordinarily, a motion for summary judgment should

not be granted when the opposing party is proceed-

ing diligently with his pretrial discovery, but has not

had an opportunity to complete it. [Citations omit-

ted.] On the other hand, when... a party makes

no suggestion to the trial court of any additional

facts tending to support his position, he cannot

escape summary judgment, if other proper, on the

mere hope that further discovery may reveal evi-

dence favorable to his case [Citations omitted.] ”

Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan.

95, 97, 490 P.2d 615 (1971). See In re Application

for Incorporation as City, 241 Kan. 396, 406, 736

P.2d 875 (1987). The district court was not re-

quired to allow Sellens to continue of his fishing

expedition.

Obviously, the core issue is whether summary judg-

ment was appropriate. We employ the familiar standard

of review which states, inter alia, that the party opposing

summary judgment must come forward with evidence to

establish a dispute as to a material fact. See Bergstrom

v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

Sellens identifies several facts which he contends are

material and disputed. He fails to recognize, however,

that he cannot simply rely on his own averments to

create genuine issues of material fact. In Willard v. City

of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067

(1984), the Kansas Supreme Court commented:

“This court has also emphasized the responsibility

of a party opposing summary judgment to take

steps to provide evidence by way of depositions or

affidavits in opposing to the motion or if necessary

to request time to make additional discovery. The

nonmoving party cannot rely solely upon the alle-

gations in his pleading. He must come forward with

something of evidentiary value to justify his posi-

tion. [Citations omitted.] ”

Sellens specifically challenges the district court’s con-

clusion that Sellens’ claims were barred by the statute of

limitations and that his breach of contract claims failed as

a matter of law. We conclude summary judgment was

proper in both respects. Sellens filed his petition on Feb-

ruary 7, 2000, alleging claims for fraud, breach of con-

tract, fraud by concealment of silence, totruous inter-

ference with a prospective business advantage, and inten-

tional infliction of emotional distress against all of the

named defendants. The following statute of limitation,

limiting certain actions to 2 years, governs Sellens’ tort

claims:

“‘(a) The following actions shall be brought within two

years: ..

(3) An action for relief on the ground of fraud, but the

cause of action shall not be deemed to have accrued until

the fraud is discovered.

(4) an action for injury to the rights of another, nor

arising on contract, and not herein enumerated.” K.S.A.

2003 Supp. 60-513(a).

K.S.A. 2003 Supp. 60-513 also includes two accrual

provisions. The provision relevant to this case provides,

in pertinent part:

“‘(b) Except as provided in subsection (c) and (d), the

causes of actions listed in subsection (a) shall not be

deemed to have accrued until the act giving rise to the

cause of action first causes substantial injury, or, if the

fact of injury is not reasonably ascertainable until some

time after the initial act, then the period of limitation

shall not commence until the fact of injury becomes

reasonably ascertainable to the injured party ...” K.S.A.

2003 Supp. 60-513(b).

Sellens’ claims for tortuous interference with a pros-

pective business advantage and intentional infliction of

emotional distress, were founded upon two acts: (1) The

issuance of the general liability insurance policy to Sel-

lens individually rather than to his corporation and (2)

a conflict of interest of the attorney hired by the insur-

ance company to defend Sellens. The record establishes

that Sellens perceived no later than December 1997,

that he had been injured by defendants’ actions, and,

thus, the clock began running; his February 2000 claim

was untimely.

Sellens’ fraud claims were subject to a 2-year limita-

tion under K.S.A. 2003 Supp. 60-513(a)(3). A cause of

action for fraud “shall not be deemed to have accrued

until the fraud is discovered.” K.S.A. 2003 Supp. 60-

513(a)(3). ‘The statute of limitations in an action for

relief on the ground of fraud does not start to run until

the plaintiff discovers the fraud or until the plaintiff

learns such facts as would lead a reasonably prudent per-

son to investigate.” Robinson v. Shah, 23 Kan. App.2d

812, Syl. 45, 936 P.2d 784 (1997).

Again, the record supports a finding that by December

1997 Sellens had learned of sufficient facts which would

lead a reasonable person to investigate. Therefore, the

district court did not err in finding the fraud causes of

action were barred by the statute of limitations.

Sellens makes the additional argument that (1) the

statute of limitations was tolled for a variety of reasons,

(2) estoppel barred the assertion of a statute of limita-

tions defense, and (3) the court’s finding regarding the

commencement of the statute of limitations is not sup-

ported by the evidence.

First, Sellens contends that American States’ fraud-

ulent concealment of facts tolled the statute of limita-

tions. In Friends University v. W.R. Grace & Co., 227

Kan. 559, 564, 608 P.2d 936 (1980) (quoting 51 Am.

Jur. 2d, Limitation of Actions § 148, pp. 719-21), the

Kansas Supreme Court commented:

“To constitute concealment of a cause of action

within the general rule tolling the statute of limi-

tations on that ground the concealment must be

fraudulent or intentional and, in the absence of a

fiduciary or confidential. relationship, there must be

something of an affirmative nature designed to pre-

vent, and which does prevent, discovery of the

cause of action. There must be some actual arti-

fice to prevent knowledge of the fact, some affirm-

ative act of concealment, or some misrepresentation

to exclude suspicion and prevent injury. . . .

“There can be no concealment which will prevent

the running the statute of limitations where the

cause of action is known to the plaintiff or there is

a presumption of such knowledge. Where the

defendant does not occupy a fiduciary or confi-

dential relationship toward the plaintiff, neither

affirmative nor passive conduct of the defendant

will constitute such a concealment as to prevent

the running of the statute of limitations, where

through reasonable diligence on his part he could

have learned of the existence of his cause of action.

It has accordingly been held that the party seeking

to toll the statute of limitations must explain why

due diligence did lead or could not have led to

discovery of the facts and the cause action.’ ”

We have carefully reviewed the three acts which Sel-

lens claims illustrate American States’ fraudulent con-

cealment and find nothing which would have prevented

Sellens from discovering his alleged causes of action.

Sellens’ allegation that his attorney, Richard Marquez,

concealed the case file from a prior lawsuit involving

Brian Groth is not accompanied by any explanation of

what evidence contained in the file of which Sellens was

unaware. Sellens’ conclusory allegations do not permit

a determination of whether Marguez’s actions actually

prevented Sellens from discovering his alleged causes of

action. ‘“[T] here must be something of an affirmative

nature designed to prevent, and which does prevent, dis-

covery of the cause of action.’ ” (Emphasis added.)

Friends, 227 Kan. at 564 (quoting 51 Am. Jur. 2d, Lim-

itation of Actions § 148, p. 719).

Sellens asserts that his complaint to the Insurance

Commissioner tolled the statute of limitations during

the pendency of that proceeding. He relies on Keith

v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan.

537, 544, 498 P.2d 265 (1972), in which the Kansas

Supreme Court stated:

“ “The rule in this jurisdiction is that if a person is

prevented from exercising his legal remedy by the

pendency of legal proceedings, the running of the

statute of limitations applicable to the remedy is

postponed or if it has commenced to run, is sus-

pended or tolled during the time the restraint

incident to the proceeding continues.” (Quoting

In re Estate of Brasfield, 168 Kan. 376, Syl. 47,

214 P.2d 305 [1950].)

Again, however, Sellens fails to explain how he was

prevented from bringing the present lawsuit. A review

of the Kansas statutes and regulations relating to insur-

ance does not disclose that the filing of a complaint with

the Insurance Commissioner, standing alone, prevents

the complainant from filing a lawsuit in district court.

Sellens’ reliance on Keith is misplaced.

Sellens also contends that the statute of limitations

was tolled under the federal tolling doctrine. Accord-

ing to the federal tolling doctrine, “ ‘[W] here the party

injured by the fraud remains in ignorance of it without

any fault of want of diligence or care on his part, the bar

of the statute does not begin to run until the fraud is

discovered... .’” Seiffer v. Topsy’s International, Inc.,

520 F.2d 795, 796 (10th Cir. 1975) (quoting Bailey v.

Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636

[1874]). Sellens fails to cite to any Kansas case apply-

ing the federal tolling doctrine, perhaps because such a

case does not exist.

Moving to Sellens* estoppel arguments, we note that he

lists three reasons why the defendants should have been |

estopped from asserting a statute of limitations defense.

In the first, he contends that American States made a

“pledge” to the Insurance Commissioner that this contro-

versy would be resolved in the district court. The con-

tention is unsupported by the record; Sellens bore the

burden of designating a sufficient record to substantiate

his arguments. See Sterba v. Jay, 249 Kan. 270, 280,

816 P.2d 379 (1991). Next, Sellens makes a nonsensi-

cal argument that the defendants are estopped from

asserting the statute of limitations defense by their own

acts. He cites no support for his position, and to the

extent that one might divine the legal nature of the

argument, we have no problem finding that it must be

without merit.

Thirdly, Sellens cites Melon v. Cessna Aircraft Co.,

28 F. Supp. 2d 1305, 1308 (D. Kan. 1998), which dis-

cussed New York law regarding promissory estoppel and

10a

the statute of frauds, as authority for his argument that

the application of statutes of limitation may be barred

under egregious circumstances. Sellens’ reliance on Sel-

lens interpretation of New York statute of frauds law in

support of a Kansas statute of limitations issue simply

illustrates the consequences of a pro se litigant, without

the requisite legal acumen, embarking on an apparently

enjoyable, adventurous journey through the legal sys-

tem. Perhaps we are ill-advised to encourage such pro se

fantasies by not simply summarily affirming the district

court. Nevertheless, the cited authority is not manda-

tory, persuasive, or germane.

Last, Sellens contends that the district court, during an

unrecorded hearing in a separate lawsuit, “committed” to

allowing Sellens to bring the present lawsuit. Conse-

quently, Sellens maintains that the district court should

be precluded from dismissing Sellens’ case on untime-

liness grounds. The argument has no support in the

record and fails.

Moving on to the contract issues, we note that Seliens

contends the district court should have found the exis-

tence of contract between; (1) American States and Sel-

lens; (2) Marquez and Sellens; and (3) The Agency, Doug

Geubelle, and Sellens. The point is that if those con-

tracts existed, the claims based upon contract would not

be barred by the statute of limitations.

Sellens first asserts that there was a contract between

himself and American States because “American States

imposed contractual obligations upon itself” when it

issued the policy in Sellens’ and his brother’s names

instead of Seliens’ corporation, International Education

Services, Inc. (IES). Sellens’ initial complaint was that

the insurance policy was issued in individual names, when

lla

he had contracted on behalf of IES for the policy to be

issued to the corporation. Therefore, under his theory,

the contract was between American States and IES and

any cause of action for the changing of the named

insured would lie with the corporation. We find no error.

Next, Sellens asserts a contract between himself and

Marquez, who was hired by American states to represent

Sellens. The alleged breach of that contract was Mar-

quez’ representing the insurance company’s interest in

derogation of Sellens’ interests. Thus, notwithstanding

any contractual relationship, Sellens’ cause of action

sounded in tort rather than contract.

“Legal and medical malpractice generally constitutes

both a tort and a breach of contract. An action for

liability of an attorney on the grounds of negligence

for failure to discharge his professional duty to a

client rests on the employment contract and there-

fore in contractual in nature. Where the act com-

plained of is a breach of specific terms of the con-

tract without any reference to the legal duties

imposed by law upon the relationship created there-

by, the action is contractual. Where the essential

claim of the action is a breach a duty imposed by

law upon the relationship of attorney/client and not

of the contract itself, the action is in tort. [ Cita-

tion omitted.] ...”

“. . . Kansas has held that where a legal duty is im-

posed by law, the cause of action is in tort.” Pencake

House, Inc. v. Redmond, 239 Kan. 83, 85-86, 716 P.2d

575 (1986).

Finally, Sellens argues that the court erred by failing

to find a contract between himself, Geubelle, and The

Agency. As was the case with American States, any

breach of contract claim seems to be with the corpora-

12a

tion rather than Sellens. IES employed Geubelle and the

Agency to procure the insurance policy. A cause of

action for breach of contract in procuring the policy

should rest with IES.

Sellens concludes his shotgun challenge to summary

judgment by contending that the district court’s findings

were not supported by the evidence. Again, Sellens fre-

quently misses the point. For instance, Sellens argues

that the district court erred in finding that Sellens had

assessed his damages at $60,000 in December 1997

because that was the figure upon which Sellens said he

was willing to settle, not his actual damages. However,

the finding is relevant to Sellens’ knowledge that he had

sustained damages at that early date, thus commencing

the statute of limitations period, rather than being ger-

mane to the amount of damages incurred. Likewise,

Sellens’ other complaints are unpersuasive.

Given our previous rulings, we do not feel compelled

to reach the merits of Sellens’ arguments that the district

court erred by (1) failing to find the defendants in vio-

lation of K.S.A. 40-2, 118; (2) denying Sellens’ claim

of fraud by concealment of silence; (3) failing to find the

insurance agent bound coverage; and (4) erroneously

granting the motions to dismiss of Claire F. McClellan,

Jack D. Ecrement, Carl B. Eisele, and Carlos Cauldron.

With respect to the dismissal of Patricia I. Smith, a review

of the record and applicable statutes reveals that the dis-

trict court did not error in dismissing her from the law-

suit following a remand from this court.

In his challenge to the district court’s limitation of

discovery, Sellens follows his pattern of citing to inap-

plicable authority and misconstruing the facts. Brake-

field v. Shelton, 76 Kan. 451, 92 Pac. 709 (1907), stands

for the proposition that in a civil trial based upon fraud,

13a

the district court should afford great latitude in the intro-

duction of evidence tending to disclose the alleged fraud.

It does not instruct the district judge to permit interro-

gatories to one defendant containing 260 questions. Sel-

lens’ contention that the 260 questions were, in fact, a

deposition upon written questions would have more force

if he had not labeled the discovery “Interrogatories to

Defendant The Agency.” Further, the record indicates

the parties’ scheduling conflicts prevented Geubelle’s

deposition, rendering the allegation that the district judge

prevented the deposition disingenuous, at best.

Continuing our herculean efforts to decipher Sellens’

arguments, we perceive his complaint concerning the

denial of his motion to compel to be that the district

court should have ordered Marquez to turn over the

entire case file from the prior lawsuit. Inexplicably,

Sellens cites to the Model Rules of Professional Conduct

for authority. See Supreme Court Rule 226 (2003 Kan.

Ct. R. Annot. 317). Nevertheless, the district court

found that Sellens had been given the opportunity to

inspect and copy the file and that delivery of possession

of the original file was not required. We agree.

Sellens also complains of the district court’s denial of

his request for discovery sanctions. “The award of sanc-

tions, including attorney fees, for discovery violations is

also reviewed using an abuse of discretion standard.”

Canaan v. Bartee, 276 Kan. 116, 135, 72 P.3d 911

(2003). Our review of the record discloses no discovery

violations and, thus, it certainly was not an abuse of dis-

cretion to deny sanctions.

Below, Sellens moved for production of Marquez’

correspondence with the Kansas Disciplinary Adminis-_

trator, to which Marquez objected on the grounds that

————————————— EE

l4a

the documents were confidential under Supreme Court

Rule 222 (2003 Kan. Ct. R. Annot. 305). Marquez

apparently submitted the correspondence for-an-in-cam-

era inspection by the district court, after which the dis-

trict court concluded that “there is nothing in that cor-

respondence that could lead to relevant, admissible

evidence in this case.” The district court handled the

matter appropriately, and we find no error.

On March 12, 2001, approximately 1 month after

Sellens had completed his response to defendants’ mo-

tions for summary judgment, Sellens filed a motion

seeking to amend his petition. Sellens claimed the pro-

posed amendments would: (1) identify evidence and facts

which Sellens learned subsequent to his original peti-

tion and (2) amend Sellens’ claims to remove any pos-

sible “‘fatal flaws.” However, a copy of the proposed

amended petition was not attached to the motion. In

denying the motion, the district court said, ‘Without

knowing what the proposed amended supplemental

Petition contains, the court cannot, in good conscience,

allow the filing of an amended or supplemental Peti-

tion based on the generalized statements of the Plaintiff

in the Motion.” A district court has broad discretionary

power with respect to the amendment of pleadings.

Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458,

470, 819 P.2d 1192 (1991), cert. denied, 504 U.S. 912

(1992). Here, the court did not abuse that discretion.

ee ee ee ee oe a ee

Sellens’ deposition was taken on August 22, 2000,

and at the conclusion of the questioning, Sellens indi-

cated on the record that he was not waiving the oppor-

tunity to read, correct, and/or sign the deposition. Sel-

lens did not receive a copy of his deposition for a number

of months. Based thereon, he attempted to suppress the

deposition. At a hearing, one of the defense attorneys

l5a

indicated that Sellens and the court reporter, who trans-

scribed Sellens’ deposition, had became involved in a

payment dispute and, as a result, the court reporter had

refused to send the transcript unless Sellens paid in ad-

vance. The defense attorney presented the court report-

er’s affidavit, which evidently disclosed that the reporter

had sent Sellens a copy of the transcript within the pre-

ceding couple of weeks. After listening to the parties’

arguments, the district court denied Sellens’ motion to

suppress and ordered Sellens to read and/or sign the

deposition by December 22, 2000. We find no prejudice

to Sellens or reversible error in the suppression denial.

On appeal, Sellens raises issues regarding the timeli-

ness of James P. Bambick’s answer that were not pre-

sented to the district court. We decline to address them,

even though we perceive they would not mandate re-

versal. See Mynatt v. Collis, 274 Kan. 850, 860, 57 P.3d

513 (2002) (“Generally, a party is not allowed to raise

an issue on appeal not presented previously to the district

court or inconsistent with the position taken before the

district court.”’).

Sellens’ argument that the granting of summary judg-

ment violated his constitutional right to a jury trial re-

quires no discussion for anyone with a modicum of legal

knowledge. His complaint that the district court failed to

comply with supreme Court Rule 165 (2003 Kan. Ct. R.

Annot. 202) by making findings of fact and conclusions

of law “in numerous instances” is too conclusory and

vague to permit appellate review. His complaint that he

was denied due process because of the bias of Judge

Richardson lacks specificity, as well as any support in the

record. The implication is that Sellens’ ineptitude

resulted in a succession of adverse decisions, for which

16a

he now wants to transfer the blame to the presiding

judge.

Sellens filed several motions in late April 2003 seek-

ing reconsideration of judgments which had been filed

prior to February 2003. The district court treated them

as motions to alter or amend a judgment, pursuant to

K.S.A. 60-259(f), and found that they were untimely.

“Motions to reconsider are generally treated as motions

to alter or amend under K.S.A. 60-259(f).” Explora-

tion Place, Inc. v. Midwest Drywall Co., 277 Kan. 898,

900, 89 P.3d 536 (2004). K.S.A. 60-259(f) requires that

such motions shall be filed no later than 10 days after

entry of the judgment. The district court was absolutely

correct in denying or dismissing the motions.

Sellens objects to the court’s finding that Sellens did

not obtain proper service on the defendants. The finding

was made at an April 2000 hearing on Sellens’ motion

for default judgment and has absolutely nothing to with

an appeal of summary judgments entered after the dis-

trict court had assumed personal jurisdiction over the

defendants. An appeal is not the proper forum to refight

every battle of the lawsuit. Affirmed.

17a

APPENDIX C

[Filed Oct. 26, 2004]

IN THE SUPREME COURT

OF THE STATE OF KANSAS

District Court Case 00C4 KE

Supreme Court Order

Case No. 03-90976A

Charles J. Sellens Pro Se

Uwabu Sakae-Machi 10-7

Komagane-Shi Nagano-Ken

399-4115 Japan Case No. 03-90976-A

Charles J. Sellens, Appellant,

American States Ins., Co., et al., Appellees.

You are hereby notified of the following action

taken by the Court:

Motion to Publish Opinion by Appellant, Charles J.

Sellens

Considered by the Court and denied.

Date: 10/26/2004. Carol G. Green

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.