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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 956

## Text

_ Supreme Court, U.S.
A FILED

Qh 227 AUG 1 8 2004

ste OFFICE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES

CHARLES J. SELLENS,
Petitioner,

AMERICAN STATES INSURANCE COMPANY,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE STATE OF KANSAS

PETITION FOR A WRIT OF CERTIORARI

CHARLES J. SELLENS
Uwabu Sakae-machi 10-7

Komagane-Shi
Nagano-Ken 399-4115

Japan
8 1-265-82-4417

Petitioner Pro Se.

\ "Washington, D.C. © THIEL PRESS © (202) 328-3286

(:)
QUESTIONS PRESENTED

1. Whether it was error for the Kansas Supreme Court
to hold that K.S.A. 40-2, 118, Fraudulent Insurance Act,
was limited to acts of fraud committed against insurance
companies and insurance agents in conflict with the ob-
vious contrary language in the statute, 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 K.S.A. 40-2, 118, Fraudulent Insurance
Act, found to be limited to acts of fraud committed
against insurance companies and insurance agents vio-
lates the petitioner’s right to equal protection of the
laws clause of the fourteenth amendment to the U.S.
Constitution?

3. Whether it was error for the Kansas Supreme Court
to deny the petitioner’s motion to publish the Kansas
Appellate Court’s unpublished opinion in this case when
the petitioner had filed a motion to publish the opinion
and cited six valid sets of criteria for publication and
when any one of the six sets of criteia would be adequate
reason to mandate publication?

4. Whether it was error for the Kansas Supreme Court
to fail to require the district court to determine whether
facts pled by the petitioner states a claim for relief, not
only on the theory which was espoused by the petitioner,
but on any possible theory that can be “‘divined”’ by the
court as instructed in Noel v. Pizza Hut, Inc., 15 Kan.
App.2d 225, 231, 805 P.2d 1244 (1991), rev. denied,
248 Kan. 996 (1991)?

(3)
PARTIES TO THE PROCEEDING

The parties to this case are:

Plaintiff/Petitioner:

Charles J. Sellens

Uwabu Sakae-machi 10-7
Komagane-Shi; Nagano-Ken
399-4115

Japan

Defendant/Respondent:

American States Insurance
Company

500 N. Meridian St.
Indianapolis, IN 46204

During the course of this litigation,
American States Insurance
Company was acquired by:

Safeco Corporation
Safeco Plaza
Seattle, WA 97185

(ttt)

Page
TABLE OF CONTENTS
Gguestions Presented .. oo... ec aces ccccnce i
Parties To The Proceeding...............00...... il
Table Of Authorities....................00.... iv
Petition For A Writ Of Certiorari ................. ]
PONE OS soe n kc cc cab ccccseccacenceccs 1
Ps hes aes aWnccdceanccdcancencee, ]
Constitutional Provisions Involved ................ 2
i Oe 2
memtement OF The Case... cece can ccccccce 3

Reasons For Granting The Writ:

I. Because This Court In Cruikshank Articu-
lated A Guaranty Against The Exertion
Of Arbitrary And Tyrannical Power On
The Part Of The Government And Legisla-
ture Of The State, Kansas Courts Must
Also Be Directed That There Is A Guar-
anty Against The Exertion Of Arbitrary
And Tyrannical Power On The Part Of
The Courts Of The State Of Kansas............ 6

II. The Finding — That K.S.A. 40-2, 118,
Fraudulent Insurance Act, Is Limited To
Acts Of Fraud Committed Against Insur-
ance Companies And Insurance Agents —
Is In Conflict With The Obvious Contrary
Language In The Statute, Previous Kansas
Decisions, And Is Further In Conflict With
Decisions Of This Court, Other Federal
Courts Of Appeals, And Other State Sup-
cvssadiscapn toying ARE EEE UE EET ETE eee 13

(iv)

III, Because The Rules Adopted By The Sup-
reme Court Of The State Of Kansas
Acknowledge That The Legal Profession
Is Largely Self-Governing, This Case Must
Be Granted A Writ So That Kansas Courts
Can Be Directed To Follow State Statutes

Py Te Ts Tk i 5 6 4 6 04 0 Koes

IV. This Case Should Be Neither Close Nor Dif-
ficult To Decide. No Facts Are In Dispute
By Either Petitioner Or Respondent.
Granting The Writ Will Create A Vehicle
Necessary To Reinstate The Rule Of Law

a eas a Re a ee are

a en rn a aa ae

APPENDICES:
Appendix A — Order of the Kansas Supreme Court

denying Petition For Review (May 26, 2004) ....

Appendix B — Memorandum Opinion of the Court
Of Appeals Of The State Of Kansas (March 5,

ee. rn re Se ei py

Appendix C — Order of the Kansas Supreme
Court denying Motion To Publish Opinion

(WEaneh SU, ZOOS) voc envsw at euc ieawestauss

TABLE OF AUTHORITIES

Federal Cases:

Bray v. Alexandria Clinic, 506 U.S. 263 (1993) ....

Dunn v. Commodity Futures Trading Commis-

ston (95-1181), 519 U.S. 465 (1997) .........

Gentile v. State Bar of Nevada (89-1836), 501

BE. MOTOR . 4 csi cree

Page

(v)
Federal Cases, continued: Page

Hartford Fire Insurance Co. et al v. California et
al. Merrett Underwriting Agency Management
Limited et al., Nos. 91-1] 11 and 91-1128

RAMEE LORNA EV wh Nerck saben cudrad boddacex 7
Johnson v. United States (99-5153), 529 U.S, .

ial enn tas tal. 7
Jones v, United States (99-5739), 529 U.S, 848

cau A CEE eT TT ee, 8, 10
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937... .. 16
Rewits v. United States, 401 U.S. 808, 812......... 11
U.S. v, Cruikshank, 1 Woods 316 .............. 6, 16
United States v. Morrison et al., No. 99-5

<aiuthg. ER Te CECT TORR Te 13
Virginia v. Rives, 100 U.S. 313.................. 16

State Cases:
Atlantic International Insurance Co. v. Bell, 475

BOW OO BOO IDOE. 5 go cee inc ccccccccneeey 14
Baker v. R.D, Andersen Const. Co., Inc., Kan.App.,

Oe PVN BON 6.55 606 Sh oho 6:04 Kida o vba cue. 10
Boatright v. Kansas Racing Comm’n., 251 Kan.

240, 245, 834 P.2d 368 (| Sa ao 7
Bruggeman v. Schimke, 239 Kan. 245, 247, 718

a) ee 5
Capital Services, Inc. v. Dahlinger Pontiac-Cadillac,

232 Kan. 419, 422, 657 P.2d 36 Co 11
City of Shawnee, Kan. v. AT&T Corp., 910 F.Supp.

Rm COR MM EDO), yee cans cvvcuwacaccas 17

Grinsted Products v. Kansas Corp., 937 P.2d 1
(Kan. cid LE EE ET TET eT ee ne 5

(vt)

State Cases, continued: Page
Marker v. Preferred Fire Ins. Co., 211 Kan. 427,
EE BO CEPT 6c ceca See eked ea eee 13
Marshel Investments, Inc. v. Cohen, Kan. App.,
I S66 k 24 ck ERE AAO GAO RED RES 13

Noel v, Pizza Hut, Inc., 15 Kan. App. 2d 225, 231,
805 P.2d 1244 (1991), rev. denied, 248 Kan.

WCCO RR cca hoa een bbocesnneeaeeees i, 19, 20
Pacific Mutual Life Insurance Co. v. Haislip, et al.,

ge RB RG | reer era ere 15
Re: Shirk Estate, 363 P.2d 461, 188 Kan. 513

SE 6 RA TRA RA AE ERS WER Re eRe 20
Russell v. Boverd, 113 P.2d 1064, 153 Kansas

(chs. | | Parra arena war erire Para arare a 20
Stanton v. KCC, 2 K.A.2d 228, 229, 577 P.2d

oer rer er errr eres eer ye ee ys 16
Taiwo v. Vu, 822 P.2d 1028 (Kan. 1991).......... 16
Tank v. State Farm Fire & Casualty Co., 105

Wash.2d 381, 715 P.2d 1133 (1986)............ 14

Federal Constitutional Provisions:

Section 1 of Amendment XIV to the U.S.
GOnstitution ..... cece cree ccc ccccncens passim

Bee Bas | oda onc dccacveneees 2

State Constitutional Provisions:

Constitution of the State of Kansas, Bill of Rights,
ee PPET OUT TE Oe re 2,17

Constitution of the State of Kansas, Bill of Rights,
SN 2 ks AS ee Ske ek ee = i?

(vit)

Page

State Statutes:
K.S.A. 40-2, 118, Fraudulent Insurance Act.... passim
ss sth, Basitine ins, CREE EE ETE TOT ne 18
Re Os ini b ewe deus cubase eceee 18, 19, 21

Supreme Court Rules of the State of Kansas:

mums OLR. Amma G08 oo ook ec acsncncwccccc 18
man, Ct.R. Anno. 7.04 .....000500cccces, 19, 20, 21-
Miscellaneous:

Second College Edition, The American Heritage
Dictionary, Houghton Mifflin Company,
ON RW kas wa WN ens bk dddw ase cacances 9

New College Edition Heritage Illustrated Diction-
ary, McGraw-Hill, New York 1975 .............. 9

PETITION FOR A WRIT OF CERTIORARI

Charles J. Sellens 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
petition for review, and the Kansas Supreme Court’s
denial of the petitioner’s motion to publish were not
officially publ*.hed. They are identified in the Kansas
Judicial Bran-as Case Inquiry System of ‘the Kansas
Appellate Courts at case number 90202. The Kansas
Supreme Court’s denial of the petitioner’s petition for
review is reprinted in the Appendix, hereto (“‘App.”),
at la. The Kansas Appellate Court’s memorandum
opinion is reprinted at App. 3a-8a. The Kansas Sup-
reme Court’s denial of the petitioner’s motion for publi-
cation is reprinted at App. 9a-10a.

JURISDICTION

The Kansas Appellate Court issued an unpublished
opinion on March 5, 2004 affirming the Kearny County
Court’s ruling. The petitioner filed a timely motion for
publication of the opinion. The Kansas Supreme Court
denied the motion for publication on March 30, 2004.
The petitioner filed a timely petition for review of the
Kansas Appellate Court’s unpublished opinion as a matter
of night. The Kansas Supreme Court denied the petition
for review on May 26, 2004 without addressing the claim

2

of review as a matter of right. The jurisdiction of this
Court is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The equal protection of the laws clause of the four-
teenth amendment to the U.S. Constitution provides that
no state can: “*,... deny to any person within its jurisdic-
tion the equal protection of the laws.”

The Constitution of the State of Kansas, Bill of Rights,
Section 1, speaks to the possession of equal and inalien-
able natural rights. The Constitution of the State of Kan-
sas, Bill of Rights, Section 2, speaks to equal protection
and benefit.

INTRODUCTION

This petition 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. Consti-
tution. This amendment succinctly prohibits the State of
Kansas from denying the petitioner with equal protection
of its laws. Section 1 states:

we

. .. . 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.”

The final decisions of the Kansas Supreme Court raises
questions, for the first time, under Section XIV of the
Constitution of the United States and Articles 1 and 2
of the Constitution of the State of Kansas. The peti-

3

tioner can not find any precedent in any jurisdiction in
which the issue was raised of a state judicial authority
denying a party with equal protection of its laws by issu-
ing a dispositive opinion that is in conflict with the lang-
uage in a special statute and/or a state judicial authority
ignoring the checks and balances created by its own
State’s statutes and its own rules.

If the decision below and its analysis stand, there will
always be a class of U.S. citizens who will never be able
to avail themselves of their right to equal protection of
the laws guaranteed them by the U.S. Constitution.

STATEMENT OF THE CASE

Sellens is a U.S. Citizen but has resided in Japan since
1992. He is the president of International Education
Services, Inc. (IES), a Kansas corporation doing sub-
stantial business in Japan. In August 1996, IES decided
to construct a house in Lakin, Kansas and made an appli-
cation for general liability insurance at “The Agency”’
in Lakin, Kansas. Doug Geubelle of “The Agency,”
placed the insurance with American States Insurance
Company, Inc. (ASIC) and gave IES a certificate of insur-
ance, binding coverage, to use for proving liability insur-
ance coverage to the City of Lakin, Kansas. The City of
Lakin, Kansas issued IES a Contractor’s License and a

Building Permit based on the insurance coverage provided
by ASIC.

Several days later, ASIC, by one of its underwriters,
James Bambick (Bambick), altered the IES insurance
application by drawing a line through “International
Education Services, Inc.” and writing “‘Charles J. Sellens”’
on the “DBA” line of the application. ASIC then pro-
duced a policy listing Sellens as an insured.

ee ee Ty

4

On November 10, 1996 Brian Groth (Groth) had an
accident and suffered an injury while standing on scaf-
folding that broke. On or about November 25, 1997,
Groth commenced a lawsuit in Kearny County, Kansas,
against IES, Sellens, et al.

Sellens attempted to resolve any potential disputes, yet
protect the interests of himself and others, by requesting
that ASIC defend and indemnity all parties. ASIC was
unwilling to resolve the problems by agreeing to defend
and indemnify all parties. Instead, ASIC and ASIC’s
employees conspired to commit additional fraud and did
commit additional fraud by attempting to legitimize their
policy. By its area supervisor, Carlos Cauldron, ASIC
employed Attorney Richard Marquez (Marquez) to enter
the case under pretended authorities of the policy.

Marquez entered the Groth case on or about Decem-
ber 12, 1997, stating in his entry to the Court that he was
defending all defendants including IES and Sellens. On
or about December 24, 1997 Sellens learned of the exist-
ence of Marquez and called him on the phone. Seilens
refused the ASIC offer of a defense under the proposed
conditions and informed Marquez that he had not been
served. Marquez informed Sellens that service was not an
issue because Marquez had already entered the case.
Marquez also stated that he was acting under authority
granted by ASIC’s reservation of rights in the policy.
Marquez gave ASIC information obtained from Sellens
to give ASIC additiona! advantages in its controversy
with Sellens.

ASIC deceived proper authorities into believing the
policy was legitimate and their acts were lawful. ASIC
further attempted to confuse the issues by stating to
proper authorities that ASIC was agreeing to defend all

5

Parties under reservation of rights while maintaining to
Sellens that ASIC was offering a defense to only Sellens.
ASIC gave instructions to Marquez. to proceed in ways
that would be helpful to ASIC but harmfu! to Sellens and
others.

Many ASIC supervisory employees sanctioned and par-
ticipated in the violation of K.S.A. 40-2, 118 and other
fraudulent acts. On or about August 25, 1998, ASIC
filed a Petition For Declaratory Relief in the Kearny
County District Court, Case No. 98 C 13, asking the
Court to determine the status of IES. However, ASIC
failed to name Sellens as a defendant and failed to accur-
ately identify the issues that needed to be brought before
the Court.

Sellens sustained substantial financial losses as a result
of fraudulent acts committed by ASIC. He filed his own
petition requesting that ASIC be found to have violated
K.S.A. 40-2, 118 and that it be ordered to make restitu-
tion to Sellens of such violations of K.S.A. 40-2, 118
pursuant to the statute.

This statement of the case has been accurately repro-
duced from Sellens’ petition (R.O.A. Vol. 1, pgs. 3 - 7).
Kansas’ precedent cases including Bruggeman and Grind-
sted grant the petitioner’s description of events, the
status of those which occurred. Bruggeman v. Schimke,
239 Kan. 245, 247, 718 P.2d 635 (1986); (Cited in
Grinsted Products v. Kansas Corp., 937 P.2d 1 Kan.
(1997). .

On December 15, 1999, ASIC filed a motion to dismiss
case number 99 C 20 asserting that the petitioner had no
cause of action. (Vol. 1, p. 10-13). Over three years
later, the trial court ruled that the protection provided
by K.S.A. 40-2, 118 was limited to acts of fraud com-

6

mitted against insurance companies and insurance agents.
(R.O.A. Vol. I, p. 101-103).

The Kansas Appellate Court agreed. It issued an ~|
unpublished opinion that K.S.A. 40-2, 118 is intended to
criminalize fraudulent acts committed against insurers
and their agents. The Kansas Appellate Court further
agreed with the trial court that the intended statutory
victim is the insurer — not the insured. App. 6a. The
Kansas Supreme Court denied Sellens’ petition for
review. App. la.

REASONS FOR GRANTING THE WRIT

I,

BECAUSE THIS COURT IN CRUIKSHANK ARTICU-
LATED A GUARANTY AGAINST THE EXERTION OF
ARBITRARY AND TYRANNICAL POWER ON THE
PART OF THE GOVERNMENT AND LEGISLATURE
OF THE STATE, KANSAS COURTS MUST ALSO BE
DIRECTED THAT THERE IS A GUARANTY AGAINST
THE EXERTION OF ARBITRARY AND TYRANNICAL
POWER ON THE PART OF THE COURTS OF THE STATE
OF KANSAS.

This petition focuses on the Kansas Judicial System’s
interpretation of K.S.A. 40-2,118 (1), Fraudulent Insur-
ance Act, which reads in part:

“For purposes of this act a ‘fraudulent insurance
act’ means an act committed by any person who,
knowingly 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 insur-
er, purported 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
insurance. ...”

7

The petitioner has consistently maintained, and con-
tinues to maintain, that the statutory language in K.S.A.
40-2, 118 specifically instructs that an insured may
maintain an action against an insurer for the insurer’s
fraudulent acts. The Kansas legislature knowingly
included the language: “to or by an insurer, purported
insurer, broker or any agent thereof,” when identifying
the entities whose acts are subject to scrutiny under
standards imposed by K.S.A. 40-2, 118, Fraudulent
Insurance Act.

Precedent Kansas case Boatright instructs: “The legisla-
ture is presumed to understand the meaning of the words
it uses and the procedures it establishes.” Boatright v.
Kansas Racing Comm’n, 251 Kan. 240, 245, 834 P.2d
368 (1992).

The alteration of the insurance contract previously
issued to IES to substitute the petitioner as a named
insured is indisputably a fraudulent act committed by
ASIC et al. The petitioner indisputably suffered financial
damages as a consequence of being identified as a named
insured on the insurance contract. The onus was on the
Kansas Judicial System to offer more than dismissive
language to explain why the petitioner had no cause of
action considering the outrage of ASIC’s acts and the
contradictory language included in the statute.

On point, the U.S. Supreme Court has often defined
words to help explain the logic for its decisions. Hartford
Fire Insurance Co. et al. v. California et al. Merrett
Underwriting Agency Management Limited et al., Nos.
91-1111 and 91-1128 (1993) includes the Oxford English
Dictionary’s 468 (2d ed. 1989) definition of the word:
“boycott.” In Johnson v. United States, (99-5153), 529
U.S. 694 (2000), 181 F.3d 105, the U.S. Supreme Court
discusses the definition of: ‘“trevoke.” Bray v. Alexandria

8

Clinic, 506 U.S. 263 (1993), includes Webster’s Second
International Dictionary 1306 (1954) definition of the
word: “‘invidious.”’

The U.S. Supreme Court placed emphasis on the key
word “in” and would not violate the ordinary meaning
in Dunn v. Commodity Futures Trading Commission (95-
1181), 519 U.S. 465 (1997). The U.S. Supreme Court
identified ‘‘used” in Jones v. United States (99-5739),
529 U.S. 848 (2000). In this case, the Kansas Appellate
Court’ opinion includes:

“K.S.A, 40-2, 118 is clear in its design to criminal-
ize fraudulent acts committed against insurers and
their agents. We agree with the district court that
the intended statutory victim is the insurer — not
the insured.” (App. 6a).

Common sense and the ordinary meaning of the lang-
uage used do not support the Appellate Court’s opinion.
To position itself to arrive at its opinion, the Appellate
Court had to ignore the identifying language, “‘. . . .to or
by an insurer, purported insurer, broker or any agent
thereof. .. .” that is included in K.S.A. 40-2, 118.

The Appellate Court also had to transpose: “In addi-
tion to any other penalty, a person who violates this
statute shall be ordered to make restitution to the insurer
or any other person or entity for any financtal loss sus-
tained as a result of such violation... .” (Emphasis
added) to read: ‘**. . . Although the act enables an insurer
to seek restitution for fraudulent insurance acts, it does
not provide that an insured person can bring a civil law-

suit against an insurer to recover restitution” (sic). App.
6a-7a.

Two dictionaries identify: “by” and also ‘“‘through”’
and “‘with” and offer explanations that support the peti-

9

tioner’s interpretation of the Fraudulent Insurance Act.
They are:

“These prepositions indicate the agency or means by
which something is accomplished. By usually intro-
duces directly the agent (person) or agency (power);
named by him; struck by lightning.” Second college
Edition, The American Heritage Dictionary, Hough-
ton Mifflin Company, Boston 1892 and also the
New College Edition Heritage Illustrated Dictionary,
McGraw-Hill, New York 1975.

However, the Appellate Court trivialized the impor-
tance of the obvious construction with the dismissive
language that: ‘“‘Sellens’ argument is without merit.”
(App. 6a). The Appellate Court went on to find that;
“Sellens’ proposed construction is simply not supported
by the statutory language or the obvious legislative
intent.”” App. 6a.

The Appellate Court did not explain why it consid-
ered the petitioner’s arguments without merit. Notwith-
standing, the petitioner’s arguments are most meritorious
vis-a-vis the Appellate Courts’ opinion which would grant
insurance companies and their agents immunity from
either criminal or civil prosecution for violations of the
Fraudulent Insurance Act if only they had followed state
statutes and their own rules mandating publication of the
opinion.

The petitioner has convincingly demonstrated that the
proper construction of K.S.A. 40-2, 118, Fraudulent In-
surance Act, provides him with a cause of action against
ASIC, Equally important, in the construction most fav-
orable to ASIC, the statute is in the very least still sus-
ceptible to the construction that he has a cause of action

10

against ASIC. The petitioner cited Baker in his pleading
captioned: Petition For Review, stating:

‘When statute is susceptible to more than one con-
struction, it should be considered in its entirety
and in light of legislative intent; statute should never
be construed so as to produce uncertainty, injustice
or confusion if it is possible to construe it other-
wise.” Baker v. R.D. Andersen Const. Co., Inc.,
Kan.App., 644 P.2d 1354.

The Kansas Appellate Court’s opinion produces pro-
found uncertainty, gross injustice, and extreme confusion
by excluding the petitioner as a person offered equal pro-
tection under the statute.

Also on point and instructive, the U.S. Supreme Court
case Jones includes:

oP . the guiding principle that where a statute is
susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise
and by the other of which such questions are avoid-
ed, the Court’s duty is to adopt the latter.’’ Jones
v. United States (op. cit.).

The Kansas Appellate Court’s construction of the stat-
ute clearly raises grave and doubtful constitutional ques-
tions. If K.S.A. 40-2, 118 does not provide the petitioner
with protection that is equal to ASIC et al, then the stat-
ute must be found to be unconstitutional as it would be
in violation of the equal protection clause of Amendment
XIV to the U.S. Constitution. Jones and Baker provide
instruction that the Kansas Courts’ duty was to construe
K.S.A. 40-2, 118 to provide the petitioner with a cause of
action against ASIC under the statute.

If K.S.A. 40-2, 118 is construed to deny the petitioner
with a cause of action against ASIC it could just as easily
be construed to grant the petitioner with a cause of

11

action thus be subject to findings of vagueness. In his
pleading captioned: Petition For Review, the petitioner
asserted that he has rights under both the U.S. and Kan-
sas Constitutions to equal protection under the statute.
He cited Capital Services, Inc. v. Dahlinger Pontiac-
Cadillac, 232 Kan. 419, 422, 657 P.2d 36 (1983) and
several other Kansas cases that prohibit vague laws.

In Gentile, and on point, the U.S. Supreme Court’s
opinion includes:

“‘a vague law offends the Constitution because it
fails to give fair notice to those it is intended to
deter and creates the possibility of discriminatory
enforcement.” Gentile v. State Bar of Nevada
(89-1836), 501 U.S. 1030 (1991).

Capital Services and Gentile provide instruction that
the Kansas Courts’ duty was to ensure that K.S.A. 40-2,
118 was not subject to scrutiny for vagueness.

Rewts includes instructions that when a choice must
be made between two readings of what conduct Congress
has made a crime, it is appropriate: “. . . to require that
Congress should have spoken in language that is clear and
definite.” Rewts v. United States, 401 U.S. 808, 812.
Rewts provides direction that if the Kansas legislature
had intended to exclude fraud committed by insurance
companies and their agents from the provisions of the
Fraudulent Insurance Act, then it should have spoken in
language that is clear and definite.

However, the Kansas legislature did not speak in clear
and definite language excluding insurance companies and
insurance agents from civil prosecution for violations of
the Fraudulent Insurance Act. If the Kansas Appellate
Courts truly had confidence in the validity of the opin-
ion, it would have required that the opinion be pub-
lished.

12

With all due respect, the Kansas Appellate Court
System’s refusal to publish the opinion can only lead
reasonable people to conclude that the Kansas Appellate
Courts recognize that the opinion is so legally and funda-
mentally flawed that it could not be granted the status
of precedent but was only made to dispose of the peti-
tioner’s case without regard to the rule of law.

The petitioner can offer no better support for his
position than a criminal complaint filed by the office of
the Kansas Insurance Commissioner. On October 29,
2003, Robert C. Clause, Special Assistant Attorney Gen-
eral, Kansas Insurance Department filed charges against
an insurance agent, Rhonda Wilder, charging her with
violations of K.S.A. 40-2, 118, Fraudulent Insurance Act.
In the complaint, Special Assistant Attorney General
Clause specifically cites ‘Fraudulent Insurance Act”
seven (7) times and “K.S.A. 40-2, 118” four (4) times.

If the opinion in this case were assigned the stature
of precedent, then Wilder could not be found to be in
violation of K.S.A. 40-2, 118, Fraudulent Insurance
Act. Wilder is identified as an insurance agent and the
opinion would exclude insurance agents from prosecu-
tion under the act. Furthermore, Wilder is charged with
fraud committed against private citizens Fredrick E,
Sutton and Ida Mae Sutton. If the opinion in this case
were assigned the stature of precedent, Wilder could not
be charged with the commission of any crime because
the Fraudulent Insurance Act, a special statute that takes
precedent over common law and other statutes, would
be limited to: “. . . . criminalize fraudulent acts commit-
ted against insurers and their agents.”’

Construction of the Fraudulent Insurance Act to pro-
vide the petitioner with a cause of action against ASIC

13

is necessary to produce certainty, justice and to avoid
confusion about the rights of persons who are victims of
fraud committed by insurance companies and/or their
agents.

II.

THE FINDING — THAT K.S.A. 40-2, 118, FRAUDULENT
INSURANCE ACT, IS LIMITED TO ACTS OF FRAUD
COMMITTED AGAINST INSURANCE COMPANIES AND
INSURANCE AGENTS — IS IN CONFLICT WITH THE
OBVIOUS CONTRARY LANGUAGE IN THE STATUTE,
PREVIOUS KANSAS DECISIONS, AND IS 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) in-
vites scrutiny of the Appellate Court’s opinion under the
reading that laws should be uniform throughout the na-
tion. The petitioner can not find any precedent in Kan-
sas, nor in any other state, in which an insurance com-
pany and/or its agents have been found to have been
granted privileged status, vis-a-vis their insureds. The
petitioner can cite hundreds of precedent setting Kansas
cases in which the courts have properly recognized that
insurance companies and/or their agents do not have, nor
are deserving of, privilege status. Some include:

Marshel Investments, Inc. v. Cohen, Kan. App., 634
P.2d 123 sets forth the history of well established prin-
ciple of law that an insurance agent or broker who under-
takes to procure insurance for another and thereafter
neglects or fails to do so, will be held liable for any dam-
age resulting therefrom.

In a relevant case, Marker v. Preferred Fire Ins. Co.,
211 Kan. 427, 506 P.2d 1163 (1973), the action was

14

against an insurance company and one of its agents for
loss resulting from tornado damage to real property. 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 pra-
cure insurance for another and thereafter neglects
or fails to do so, will be held liable for any damages
resulting therefrom.”

The petitioner can also cite hundreds of precedent set-
ting cases in other jurisdicions in which the courts have
properly recognized that insurance companies and/or
their agents do not have, nor are deserving of, privilege
status. Some include the Michigan Supreme Court’s
observation that the tripartite relations among an insur-
ance company, its insured, and legal counsel employed to
defend its insured carries:

6é
.

. .. rife possibilities of conflict which unquestion-
able runs against the insured, considering that
defense counsel and the insure 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 in its
opinion:

“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 & Cas-
ualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986).

=

15

Pactfic Mutual Life Insurance Co. v. Haslip, et al.
includes the opinion that:

‘

*,... 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 minimiz-
ing fraud, since that rule creates a strong financial
incentive for vigilance by insurers. (89-1279), 499
U.S. 1 (1991).

More importantly than the petitioner not being able to
cite a precedent, no other entity in this litigation has cit-
ed any statute or case in which an insurance company,
and/or its agents, have been found to have been granted
privileged status, vis-a-vis their insureds. The petitioner
asserts that there is none because any statute that denies
an insured equal protection with his/her insurance com-
pany and/or agent would be under continuous challenge
for being in violation of Amendment XIV to the U.S.
Constitution.

Section 1 of Amendment XIV to the U.S. Constitution
succinctly prohibits states from denying U.S. citizens
with equal protection of its laws. It states:

eee

66

. . » » 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.”

An issue in deciding if there has been a violation 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

16

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
state....”

Other cases on point 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 individ-
uals.” Lugar includes: “State action requires both an
alleged constitutional deprivation caused by acts taken
pursuant to state law and that the allegedly unconstitu-
tional 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
precedent over common law and other statutes. ‘When
a statute conflicts with the common law, the statute
controls.”” Cited in Tatwo v. Vu, 822 P.2d 1028 (Kan.
1991), “A special statute relating to particular persons
or things takes precedence over general statute.’’ Stan-
ton v. KCC, 2 K.A.2d 228, 229, 577 P.2d 1201. If
this special statute does not provide the petitioner
equal protection with ASIC et al. it is obviously in viola-
tion of the equal protection clause of the fourteenth
amendment to the U.S. Constitution.

The petitioner does not allege that ASIC et al have
violated his fourteenth amendment rights, nor does he
allege that the Kansas legislature has passed a law that

17

would violate his fourteenth amendment rights if prop-
erly enforced. The petitioner alleges that it is the Kansas
Judicial System itself that has violated his fourteenth
amendment rights by improper enforcement. He further
alleges that the Kansas Judicial System is governed by
provisions of the fourteenth by virtue of it assuming
the legislative function of making case law and is further
included in the fourteenth amendment’s language govern-
ing state’s prohibited acts,

Additionally, the Constitution of the State of Kansas,
Bill of Rights, Section 1, speaks to the possession of
equal and inalienable natural rights. The Bill of Rights,
Section 2, further speaks to equal protection and bene-
fit. City of Shawnee, Kan. v. AT&T Corp. provides
guidance that addresses the petitioner’s claim of violation
of Equal rights under law. City of Shawnee, Kan. v.
ATST Corp. states: “Under equal protection clause, all
persons similarly situated should be treated alike.” 910
F.Supp. 1546 (D. Kan. 1995). Parties to insurance con-
tracts are similarly situated so K.S.A. 40-2, 118 must be
construed to treat the petitioner equally with ASIC and
its agents.

The unpublished opinion in this case stands alone,
not as an error of judgment by the Kansas Judicial Sys-
tem, but as a written record of the Kansas Judicial
System exerting arbitrary and tyrannical power. This
case is further a record of the Kansas Judicial System’s |
nearly incontestable ability to deprive U.S. citizens
under their jurisdiction of their constitutional rights.
Only this Court has the power to prevent the continua-
tions of the abuse.

18

Ill.
BECAUSE THE RULES ADOPTED BY THE SUPREME
COURT OF THE STATE OF KANSAS ACKNOWLEDGE
THAT THE LEGAL PROFESSION IS LARGELY SELF-
GOVERNING, THIS CASE MUST BE GRANTED A WRIT
SO THAT KANSAS COURTS CAN BE DIRECTED TO
FOLLOW STATE STATUTES AND THEIR OWN RULES.

The Appellate Court raised constitutional questions,
for the first time, when it agreed with the trial court that
the intended statutory victim is the insurer — not the
insured. The Appellate Court raised additional consti-
tutional questions, for the first time, when it issued its
opinion that the Act enables an insurer to seek restitu-
tion for fraudulent insurance acts, but that it does not
provide that an insured person can bring a civil lawsuit
against an insurer to recover restitution (sic).

The petitioner appealed, as a matter of right, from the
final decision of the Court of Appeals pursuant to Kan.
Ct.R. Anno. 8.03(e)(1) and K.S.A. 60-2101(b) asserting
that final decisions of the Appellate Court raised ques-
tions, for the first time, under the Constitutions of both
the United States and the State of Kansas. The Kansas
Supreme Court simply ignored review mandated by
Kan. Ct.R. Anno. 8.03(e)(1) and K.S.A. 60-2101(b)
and denied the petitioner the review that was his by
right. (App. la).

When the petitioner was aggravated by the Appellate
Court’s memorandum opinion, he filed a motion for its
publication. He asserted that K.S.A. 60-2106 dictates
publication of opinions that decides new questions of
law. The unpublished opinion in 03-90202-A addresses
issues of first impression by limiting the applicability
of K.S.A. 40-2, 118 to criminalize fraudulent acts com-
mitted against insurers and their agents. When the

19

Appellate Court opined that the intended statutory
victim is the insurer — not the insured, it clearly decided
new questions of law thus making the opinion deserving
of publication.

The petitioner also asserted that K.S.A. 60-2106 also
dictates publication of opinions that are valuable as pre-
cedents. The opinion is the first, and only, opinion
conceming the special statute K.S.A. 40-2, 118. As such,
it would be extremely valuable as a precedent thus clearly
met statutory grounds for publication.

The petitioner cited Kan. Ct.R. Anno. 7.04(a) that,
like K.S.A. 60-2106, dictates publication of opinions that
establishes new rules of law. The Appellate Court’s
opinion concluding that K.S.A. 40-2, 118 is a criminal
statute that enables an insurer to seek restitution for
fraudulent insurance acts but does not provide that an
insured person can bring a civil lawsuit against an insurer
to recover restitution clearly establishes new rules of law
that meets cited grounds for publication.

He also cited Kan. Ct.R. Anno. 7.04(b) that dictates
publication of opinions that involves legal issues contin-
uing public interest. The complex, tripartite relationship
among (i) statutes, case laws, and regulations obligating
purchase of liability insurance; (ii) the multibillion dollar
insurance industry itself; and (iii) the insurance industry’s
command clients, the general public; makes the unpub-
lished opinion a legal issue of profound continuing public
interest deserving of publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(c)
that dictates publication of opinions that explains exist-
ing law. The Appellate Court’s opinion explained exist-
ing law established by Noel v. Pizza Hut, Inc., 15 Kan.
App.2d 225, 231, 805 P.2d 1244 (1991), rev. denied

20

248 Kan. 996 (1991). When the appellate court denied
the petitioner’s claim for relief, not only on theories
which were espoused by the petitioner, but on any pos-
sible theory that could be “‘divined” by the court, it
effectively explained that the Noel precedent could be
discretionarily applied by the court.

The petitioner also cited Kan. Ct.R. Anno. 7.04(a)
that dictates publication of opinions that modify rules
of law. Russell instructs: “fA court looks to the sub-
stance and not to the form of a pleading and judges it by
its allegations and not by the title it bears.”” Russell v.
Bovard, 113 P.2d 1064, 153 Kansas 729 (1941). See
also: Re: Shirk Estate, 363 P.2d 461, 188 Kan. 513
(1961). The Appellate Court made modifications in
rules of law in the Russell and Shirk cases with its opin-
ion that the District Court was correct in judging the
petitioners’ pleading only by the title it bore. This mod-
ification of rules of law clearly met the standards set for
publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(d)
that dictates publication of opinions that applies an estab-
lished rule of law to a factual situation significantly dif-
ferent from that in published opinions of the courts of
Kansas. The situation of an insurance underwriter alter-
ing an insurance application and the situation of an
insurance company altering an issued insurance policy
to unilaterally substitute one named insured for another,
are obviously factual situations significantly different
from published opinions in Kansas thus deserving of
publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(e)
that dictates publication of opinions that resolve an
apparent conflict of authorities. It is quite obvious that

— - eee etl

21

Robert C, Clause, Special Assistant Attorney General,
Kansas Insurance Department, does not hold the opin-
ion that the Fraudulent Insurance act is limited to “. . .
to criminalize fraudulent acts committed against insur-
ers and their agents.” (App. 6a). The publication of
this opinion would have resolved the apparent conflict
of opinions between and among the office of the Kansas
Insurance Commission, the office of the Kansas Attorney
General, and the Kansas Judicial System.

The Kansas Supreme Court simply ignored reviewed
mandated by Kan. Ct.R. Anno. 7.04(a)(b)(c)(d) and (e)
and K.S.A. 60-2106 and summarily denied the peti-
tioner’s motion to publish. (App. 9a-10a). Reasonable
people can justifiably conclude that the Kansas Judicial
System’s blatant rejection of state statutes, case laws,
and their own rules is habitual. Only this Court can stop
these odious practices.

IV.
THIS CASE SHOULD BE NEITHER CLOSE NOR DIF-
FICULT TO DECIDE. NO FACTS ARE IN DISPUTE
BY EITHER PETITIONER OR RESPONDENT. GRANT-
ING THE WRIT WILL CREATE A VEHICLE NECESSARY
TO REINSTATE THE RULE OF LAW IN KANSAS.

The record in this case is quite small but the impact of
this Court granting the writ will be tremendous. With all
due respect, U.S. citizens under the jurisdiction of the
laws of the state of Kansas can not be expected to endure
the negative effects of dispositive opinions made without
regard to the rule of law. Faux opinions that would
decide new questions of law; be valuable as precedents;
establish new rules of law; involve legal issues contin-
uing public interest; explain existing laws; modify exist-
ing laws; apply established rules of law to a factual situa-

22

tions significantly different from that in published opin-
ions of the courts of Kansas; resolve apparent conflict
of authorities yet go unpublished should not be tolerated
in the Kansas Judicial System.

With all due respect, reasonable people can logically
conclude that the Kansas Judicial System does not
believe itself bound by principles generally accepted as
rules of law. The Kansas Judicial System’s refusal to
adhere to state statutes, numerous precedents, and the
Kansas Judicial System’s own rules can only lead reason-
able people to conclude that the Kansas Judicial System
is substituting the rule of individual notions for the rule
of law.

Reasonable people can only conclude that the Kansas
Judicial System’s disregard for its obligations under state
statutes and its own rules is systemic. This petition
should be granted so that this Court can address and
rectify the Kansas Appellate Courts’ ruling that, if per-
mitted to stand, portends a class of U.S. citizens will
never be able to avail themselves of their right to equal
protection of the laws guaranteed them by the U.S.
Constitution.

23

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
Uwabu Sakae-machi 10-7
Komagane-Shi
Nagano-Ken 399-4115
Japan
Phone & Fax:

8 1-265-82-4417

Petitioner Pro Se.

-

la
APPENDIX A

[Filed May 26, 2004]

IN THE SUPREME COURT
OF THE STATE OF KANSAS

SUPREME COURT ORDER
DISTRICT CASE NO. 99C20 KE

CHARLES J. SELLENS PRO SE
UWABU SAKAE-MACHI 10-7
KOMAGANE-SHI NAGANO-KEN
399-4115
JAPAN

_ Case No. 03-90202-A

CHARLES J. SELLENS,
Appellant,

AMERICAN STATES INSURANCE COMPANY,
Appellee.

You are hereby notified of the following action
taken by the Court:

Petition for Review by Charles J. Sellens.
Considered by the Court and denied.

2a
DATE: 05/26/2004.

CAROL G. GREEN
CLERK

3a

APPENDIX B

[NOT DESIGNATED FOR PUBLICATION]
No. 90,202

IN THE COURT OF APPEALS
OF THE STATE OF KANSAS,

CHARLES J. SELLENS,
Appellant,

V.

AMERICAN STATES INSURANCE COMPANY,
Appellee.

MEMORANDUM OPINION

Appeal from Kearny District Court; THOMAS F.
RICHARDSON, judge.

Opinion filed March 5, 2004. Affirmed.
Charles J. Sellens, appellant pro se.

Arthur S. Chalmers, of Hite, Fanning & Honeyman, LLP.,
of Wichita, for appellee.

Before GREENE, P.J., ELLIOT, J., and KNUDSON,
S.J.

Per Curiam: Charles J. Sellens sought a declaratory
judgment that American States Insurance Company
(ASIC) violated provisions of the Fraudulent Insurance
Act, K.S.A. 40-2, 118 et seg. Sellens appeals from the

4a

district court’s decision to grant ASIC’s motion to dis-
miss for failure to state a claim upon which relief can
be granted.

We affirm.

Factual and Procedural Overview

Sellens is a U.S. citizen but has resided and worked in
Japan since 1992. On October 15, 1999, Sellens filed his
pro se petition for declaratory relief against ASIC, claim-
ing that ASIC had altered an application for general lia-
bility insurance made in August 1996 by International
Education Services, Inc. (IES), a construction company
for which Sellens was president. The petition claimed
that IES was the sole applicant for the insurance and that
ASIC altered the application by listing Sellens individ-
ually as the insured, without the knowledge or permis-
sion of IES or Sellens. Upon receipt of the policy on
December 11, 1996, Sellens confronted his agent regard-
ing the error and requested cancellation of the policy on
the ground that it was “not issued as requested.”” The
policy was canceled and the unused premium was re-
turned.

On November 10, 1996, Brian Groth allegedly suf-
fered an injury while working for IES and Sellens, and
on November 25, 1997, Groth brought a suit against
both IES and Sellens, among others. Sellens made de-
mand for ASIC to defend and indemnify, but advised
ASIC that he had not been served. ASIC retained an
attorney who entered an appearance on behalf of all
defendant, including Sellens. As a result of these ac-
tions, Sellens claims that he was damaged by being made
a party when he had not and probably would not have
been served. Moreover, ASIC ultimately refused to
defend or indemnify IES. Finally, the suit resulted in a
lis pendens on Sellens’ model home in Kansas.

5a

Sellens’ petition for declaratory relief claimed that
ASIC violated K.S.A. 40-2,118 and requested restitution
and reimbursement of his legal costs. ASIC responded
to the suit with a motion to dismiss for failure to state
a claim, suggestion that the statue was not intended to
protect insureds and did not create a private cause of
action in any event.

On December 26, 2002, the district court filed its
memorandum decision dismissing the action for failure
to state a claim upon which relief could be granted,
reasoning in part:

“K.S.A. 40-2,118 is a part of the Fraudulent Insur-
ance Act. This Act is intended to criminalize fraud
against an insurer and to extend immunity to those
who report the fraud. It deals with fraud in appli-
cations for insurance, brought in connection with
premium ratings, and fraudulent claims. The
intended victim in the statutes is the insurer and its
agents. The Act further provides for criminal penal-
ties to be assessed to one who perpetrates such fraud
against an insurer or an agent. It also provides for
restitution for financial losses sustained by the
insurer or any other person as a result of fraud
against an insurance company. The Act is criminal
in nature rather than civil. This Act does not create
a private cause of action in favor of the Plaintiff.”

Sellens perfected this appeal.

Did the District court Properly Construe K.S.A. 40-2,
118?

Sellens claims that the court erred in construing K.S.A.
40-2, 118 as supporting no private cause of action for an
insured under these circumstance. ‘In reviewing the dis-
trict court’s construction of the statute, our review is

ee ee ee a

6a

unlimited. See Williamson v. City of Hays, 275 Kan. 300,
305, 64 P.3d 364 (2003).

Sellens claims that the following statutory language
allows him to maintain his private cause of action under
the statute:

“For purposes of this act a ‘fraudulent insurance
act’ means an act committed by any person who,
knowingly 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 insur-
er, purported 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

insurance ... .” (Emphasis added.) K.S.A. 40-

2, 118(a).

Sellens alleges that the “‘to or by an insurer” language
specifically contemplates that an insured may maintain
an action against an insurer for an insurer’s fraudulent
acts in altering an application for insurance. Sellens’
argument is without merit.

K.S.A. 40-2, 118 is clear in its design to criminalize
fraudulent acts committed against insurers and their
agents. We agree with the district court that the intend-
ed statutory victim is the insurer — not the insured.
We decline to construe the act as proscribing fraudu-
lent acts of an insurer; Sellens’ proposed construction is
simply not supported by the statutory language or the
obvious legislative intent.

We also agree with the district court in concluding that
K.S.A. 40-2, 118 is a criminal statute. Although the act
enables an insurer to seek restitution for fraudulent
insurance acts, it does not provide that an insured per-
son can bring a civil lawsuit against an insurer to recover

;

7a

restitution. We reject Sellens’ claims of error by the
district court in construing K.S.A. 40-2, 118 and we
affirm the district court in this regard.

Did the District Court Err in its Failure to Determine
Whether Facts stated in the Petition Would Support a
Claim under Any Other Possible Theory?

Sellens next claims that the district court erred in
failing to determine whether the facts stated in his
petition would entitle him to relief under any other
possible legal theory, citing Keith v. Schiefen-Stockham
Insurance Agency, Inc., 209 Kan. 537, 540, 498 P.2d
265 (1972). Sellens claims that the facts pled and
reasonable inferences therefrom would support relief
under both tort and contract theories.

We acknowledge at the outset that in considering
a motion to dismiss for failure to state a claim, the dis-
trict court has a duty to determine whether facts pled
by a plaintiff state a claim for relief, not only on the
theory which may be espoused by plaintiff, but on any
possible theory that can be “divined” by the court.
Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805
P.2d 1244 (1991), rev. denied 248 Kan. 996 (1991).

We decline to apply this rule here because: (i) Sellens’
initial petition was entitled “Petition for Declaratory
Relief”? and sought the exclusive remedy of declaratory
relief, together with restitution “pursuant to [K.S.A.
40-2, 118]” and legal costs; accordingly, we decline to
impose a duty on the court to divine other theories
that might support entirely different relief (damages)
that were never alleged or requested in plaintiff's peti-
tion; (ii) in his response to the motion to dismiss, Sellens
stated that “the could have failed petitions against Amer-

8a

ican States and the several individual and entities identi-
fied in this brief alleging tort damages”’ but he did not do
so because he “wanted to limit litigation”; accordingly,
we decline to impose a duty on the court to divine theo-
ries that were intentionally omitted by the plaintiff for
some perceived strategic advantage; (iii) at the hearing
of the motion, Sellens advised the court that he had filed
a separate action against ASIC alleging tort and contract
claims and seeking damages; although the court suggested
that the actions should probably be “‘combined,”’ Sellens
ultimately concurred with the court’s suggestion that the
motion to dismiss the declaratory judgment action should
be decided first; we decline to apply the Noel duty where
the plaintiff has already split his cause of action, and
other theories that might be ‘‘divined” by the court are
presumably pending in the second action. See Shelton
v. DeWitte, 271 Kan. 831, 836-37, 26 P.3d 650 (2001).

For these reasons, the district court did not err in fail-
ing to determine whether Sellens’ petition might state a
claim for relief under other theories.

Did the District Court Commit Other Procedural Error?

Sellens’ brief on appeal attempts to frame other issues,
including some that are simply incomprehensible. Most if
not all of the remaining claims relate to minor procedural
error. We have examined all such claims of error and
conclude that no material procedural error was commit-
ted and that Sellens suffered no legal prejudice as a result
of these claims of error. We note in conclusion, however,
that we share Sellens’ consternation over the delays en-
countered in achieving resolution of this litigation.

Affirmed.

9a
APPENDIX C

[ Filed Mar 30 2004]

IN THE SUPREME COURT
OF THE STATE OF KANSAS

SUPREME COURT ORDER 99C20 KE

District Case No.

CHARLES J. SELLENS PRO SE
UWABU SAKAE-MACHI 10-7

KOMAGANE-SHI NAGANO-KEN

399-4115

JAPAN

CASE NO. 03-90202-AS

CHARLES J. SELLENS,
Appellant,

AMERICAN STATES INSURANCE COMPANY,
Appellee.

You are hereby notified of the following action taken
by the Court:

Motion to publish opinion by Charles J. Sellens Pro Se.
Considered by the Court and denied.

10a

Memorandum in Support noted.
Date: 3/30/2004.

CAROL G. GREEN
CLERK

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1004%3A1. Public record. Not legal advice.