Belmore v. Goldizen – Per Curiam – Affirmed – Dickinson ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,771
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ALMA GENE BELMORE,
Appellee,
v.
MARGARET M. GOLDIZEN, et al.,
Appellants.
MEMORANDUM OPINION
Appeal from Dickinson District Court; RYAN W. ROSAUER, judge. Opinion filed February 17,
2023. Affirmed.
Margaret Goldizen, appellant pro se.
No appearance by appellee.
Before CLINE, P.J., ISHERWOOD, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: In September 2021, the district court found that Margaret and John
"Jay" Goldizen owed several months' rent to Alma Belmore, Margaret's mother. It
granted summary judgment to Alma and denied several motions filed by the Goldizens.
Margaret (the Goldizens) has not adequately briefed their arguments on appeal, so
we find them waived and abandoned. We affirm the district court's judgment for Alma
and its denials of the Goldizens' motions.
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FACTS
This action arises out of a longstanding family feud pitting the Goldizens against
Margaret's siblings and Alma. The facts are explained in more detail in this court's
decision in a prior action filed by Alma against Margaret. Belmore v. Goldizen,
No. 121,978, 2021 WL 4127194 (Kan. App. 2021) (unpublished opinion), rev. denied
314 Kan. 854 (2022).
In summary, Alma, a long-time resident of the state of Washington, purchased
property in Abilene, Kansas, for investment purposes in 2000. She eventually rented this
property to the Goldizens for $400 a month through an oral lease agreement.
In 2016, Alma began displaying symptoms of middle-stage dementia. Five of her
six children (including Margaret) gathered in Washington to discuss Alma's deteriorating
health and ability to manage her affairs. After this meeting, Margaret arranged to become
Alma's attorney-in-fact and added her name to Alma's checking and savings accounts.
Without telling Alma's other children, Margaret moved Alma and her belongings to
Kansas, where Alma began living in an RV on the Kansas property. The Goldizens kept
living in the house located on this property, but they stopped paying rent after taking
custody of Alma.
Alma eventually discovered a great deal of her money was missing and that
Margaret had been using her credit cards, leaving Alma with a balance of a little over
$23,000. Alma then moved back to Washington to live with her sons. She sued Margaret
in 2017 for breach of fiduciary duty as attorney-in-fact, undue influence, conversion of
Alma's personal property and money, and breach of oral contract for Margaret's failure to
pay rent. Alma amended her complaint two days later and added John as a defendant for
the conversion and breach of oral contract claims. Alma prevailed on all claims, which
were affirmed by this court on appeal. 2021 WL 4127194, at *1, 8.
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While the 2017 case was on appeal, Alma filed this case in May 2019 as a limited
action for possession of the Abilene property and unpaid rent from the Goldizens.
Although the Goldizens had counsel in the 2017 case, they chose to represent themselves
in the 2019 case.
On September 10, 2019, the district magistrate judge entered a journal entry of
judgment for possession in the 2019 case, finding: (1) Alma served Margaret on June 17,
2019, and served John in open court on August 12, 2019; (2) the Goldizens' status as
renters and Alma's ownership of the property was litigated in the 2017 case; (3) the
Goldizens failed to vacate the premises despite the tenancy's termination; (4) Alma was
entitled to recover possession of the premises; and (5) Alma was entitled to damages and
past due rent from the Goldizens, in an amount to be determined after Alma obtained
possession of the property. In July 2020, the district court converted the 2019 case from a
limited action to a Chapter 60 action.
The Goldizens filed several motions in the 2019 case, most of which are not
relevant on appeal. Eventually, the district court granted summary judgment to Alma and
found the Goldizens owed rent from January through September 2019 at $400 per month.
ANALYSIS
The Goldizens appeal the district court's summary judgment decision along with
other decisions made throughout the 2019 case. But the same difficulties that appeared to
plague the Goldizens below—that is, misunderstanding of the law and misunderstanding
or misrepresentation of the facts—persist on appeal. And although we are obligated to
liberally construe their pleadings since they are representing themselves, we are equally
obligated to hold them to the same procedural standards as represented parties. Wilson v.
State, 40 Kan. App. 2d 170, 178, 192 P.3d 1121 (2008); In re Estate of Broderick, 34
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Kan. App. 2d 695, 701, 125 P.3d 564 (2005). To do otherwise would compromise the
integrity and impartiality of our legal system.
"A pro se litigant in a civil case is required to follow the same rules of procedure and
evidence which are binding upon a litigant who is represented by counsel. Our legal
system cannot function on any basis other than equal treatment of all litigants. To have
different rules for different classes of litigants is untenable. A party in civil litigation
cannot expect the trial judge or an attorney for the other party to advise him or her of the
law or court rules, or to see that his or her case is properly presented to the court. A pro se
litigant in a civil case cannot be given either an advantage or a disadvantage solely
because of proceeding pro se." Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96,
730 P.2d 1109 (1986).
The Goldizens have failed to satisfy their burden on appeal since they have not
adequately briefed the issues they raise. See In re Marriage of Williams, 307 Kan. 960,
977, 417 P.3d 1033 (2018) (issues not adequately briefed are considered waived or
abandoned); In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018)
(failure to support a point with pertinent authority or failure to show why a point is sound
despite a lack of supporting authority or in the face of contrary authority is like failing to
brief the issue); Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017) (a point raised
incidentally in a brief and not argued is considered waived or abandoned). While we will
discuss each point in turn, we find the Goldizens merely rehash issues already addressed
by the district court without providing any factual basis or legal support for their position
and failing to properly explain the error they allege occurred.
1. Did the district court err in ruling on Alma's motion for additional damages?
The Goldizens first assert that the district court erred in ruling on a motion
dismissed by Alma or, in the alternative, a motion not filed by Alma in this case. They
allege the district court improperly entered "a default judgment for additional damages
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against BOTH Margaret and [J]ay Goldizen" despite Alma's withdrawal of her claim for
additional damages. But they mischaracterize the district court's ruling: The court
entered summary judgment for back rent against the Goldizens. While the court did point
out that John failed to answer and was thus in default, it did not grant default judgment
against him. Nor did it grant judgment for any additional damages. Instead, it very
specifically said: "The court grants summary judg[]ment in favor of Plaintiff against
Defendants in the amount of $400 per month from January 2019 through September
2019." We therefore find no merit in this argument on appeal.
2. Did the district court err in ordering John to pay back rent?
The Goldizens claim on appeal that the "doctrine of res judicata/collater[a]l
estoppel prevented the Court from reassessing whether John Goldizen owed any monies
for rent or damages after the court had previously ordered that Jay Goldizen did not owe
rent" in the 2017 case. According to them, because the district court only ordered
Margaret to pay back rent in the 2017 case, it cannot now require them both to pay back
rent for 2019.
We find no merit in this argument since the Goldizens provide only conclusory
allegations with no analysis to support their claims. Joritz v. University of Kansas, 61
Kan. App. 482, 503, 505 P.3d 775 (2022) ("Appellants do not meet their burden of
establishing error on appeal by making conclusory contentions without any analysis, let
alone evidence, to support their claims."). The legal authority they cite is simply a
recitation of the elements of res judicata and collateral estoppel—it provides no support
for their assertion that these doctrines apply to the facts here. Nor do they try to explain
how any element of these doctrines is satisfied.
The Goldizens also make no effort to address the district court's ruling on this
claim. The district court found that Margaret admitted she and John both lived in the
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house on the Kansas property through September 2019 and that she did not controvert
Alma's contention that they failed to pay rent. It also held any finding in the 2017 action
that John was not a renter in 2017 did not preclude it from finding in the 2019 case that
John was a renter in 2019 and that the Goldizens "admitted to the essential facts through
their pleadings" about whether they owed rent for 2019. The Goldizens do not contest
any of these findings on appeal.
We find the Goldizens have waived and abandoned their arguments on this issue
by failing to adequately brief them. See In re Marriage of Williams, 307 Kan. at 977.
3. Did the district court improperly enter judgment against the Goldizens because John
was allegedly never served?
The Goldizens also claim the district court improperly entered "default judgment"
against them because they assert that John was never served with Alma's petition in the
2019 case. But, again, they provide only conclusory allegations with no analysis to
support their claims and fail to address the district court's factual findings on this issue.
First, as noted above, the district court entered summary judgment, not default
judgment. And the Goldizens fail to explain how the district court's finding that John was
personally served was incorrect or unsupported. As the district court pointed out in its
summary judgment ruling, Alma served John in open court on August 12, 2019. This
finding was made in its August 26, 2019 Journal Entry of Judgment for Possession,
which the Goldizens do not controvert. Instead, they claim Alma's attorney fraudulently
filed documents stating she served John by mail or posted service. But even accepting the
statements about mailed or posted service as true, they are beside the point—they do not
controvert the court's finding that John was personally served in open court.
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Although we generally review summary judgment decisions de novo, the
Goldizens point to no evidence in the record where they contested the district court's
finding that John was personally served in open court, nor do they assert on appeal that
he was not. See GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82, 453 P.3d 304(2019) (de novo standard of review for summary judgment decisions). And in our review
of the record, we cannot locate a response from the Goldizens to Alma's motion for
summary judgment. While the record includes the Goldizens' competing motion for
summary judgment, that motion does not address the service issue but instead argues they
do not owe rent because they claimed to own the property. As in Joritz, the Goldizens
have "created and then knocked down [their] own strawman argument" without
addressing the real basis for the court's finding on service of John. See 61 Kan. App. 2d
at 510.
The Goldizens provide no factual or legal basis to conclude the district court erred
in finding John was served in open court in August 2019. See In re Adoption of
T.M.M.H., 307 Kan. at 912. They do not argue that the facts on this issue are controverted
or that the undisputed facts do not warrant relief for Alma. Instead, the Goldizens
regurgitate portions of caselaw, statutory law, and rules of civil procedure without trying
to relate their quotations to this case. As a result of the Goldizens' inadequate briefing, we
affirm the district court's decision to grant summary judgment to Alma.
4. Did the district court abuse its discretion in denying the Goldizens' requests to find
Alma in contempt?
Throughout the 2019 case, the Goldizens filed several motions asking the district
court to find Alma and her counsel in contempt. On appeal, they claim the district court
erred in denying these motions because Alma failed to: (1) respond to discovery
requests, (2) serve them with court documents, and (3) respond to an accounting of
garnishment ordered by the district court.
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While the Goldizens do not make this distinction, we note their allegations would
be categorized as actions of indirect civil contempt under K.S.A. 20-1202 ("[C]ontempts
committed during the sitting of the court or of a judge at chambers, in its or his presence,
are direct contempts. All others are indirect contempts."). And a district court's finding
that a party has not committed indirect civil contempt is reviewed for abuse of judicial
discretion. American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, 489, 981 P.2d
248 (1999); Holman v. Stapleton, No. 118,623, 2018 WL 4939362, at *4 (Kan. App.
2018) (unpublished opinion). This deferential standard is applied because the district
court is reviewing compliance with its own order and is thus in the best position to
determine whether the alleged conduct rises to the level of contempt. 2018 WL 4939362,
at *4-5; In re Marriage of Langley, No. 115,829, 2017 WL 1534853, at *3 (Kan. App.
2017) (unpublished opinion).
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). As the party asserting the
district court abused its discretion, the Goldizens bear the burden of showing such abuse
of discretion. See Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).
As was the case in Holman, the Goldizens do not argue the district court abused its
discretion in refusing to find Alma in contempt. See 2018 WL 4939362, at *5. Instead,
they simply rehash their argument before the district court and provide only conclusory
allegations with no analysis, let alone evidence, to support their claims. See Joritz, 61
Kan. App. 2d at 503. First, they assert the district court should have found Alma in
contempt for failing to respond to discovery and failing to serve documents but provide
no record citations or any details to support these claims. As to their garnishment claim,
they simply allege Alma filed a notice of accounting of garnishments issued in the 2017
case past the court deadline. While they offer no further explanation on appeal, a review
of the record reveals the Goldizens complained below that the notice and accounting of
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garnishments was filed 100 days late. Yet they do not argue that they suffered any
prejudice from this alleged belated filing. Instead, they simply point out the district court
ordered any funds garnished in the 2017 case be applied towards the 2019 case. And a
review of the record reveals Alma did just that.
The Goldizens have provided no basis to find the district court abused its
discretion in failing to find Alma in contempt, so this issue fails as well.
5. Did the district court abuse its discretion in dismissing the Goldizens' claims about
incorrect party names?
The Goldizens raise two arguments on appeal regarding improper names: One
relates to Alma's name, and one relates to John's name. First, they claim Alma filed the
2019 case under an incorrect name because she identified herself as "Alma Gene
Belmore," and the Goldizens claim Alma's middle name is Georgina. Next, they claim
Alma sued John using his nickname, "Jay," but then fraudulently changed it to "John" in
later filings without leave of the district court. They claim Alma should not have changed
his name to John in "court garnishment documents" without the court's permission.
We find the Goldizens' argument about Alma's middle name unpreserved because
they never mentioned it to the district court. See Kansas Supreme Court Rule 6.02(a)(5)
(2022 Kan. S. Ct. R. at 36); State v. Meredith, 306 Kan. 906, 909, 399 P.3d 859 (2017).
We generally do not consider arguments raised for the first time on appeal, and the
Goldizens do not invoke any exceptions to this general rule. We therefore find they have
waived and abandoned it. See Joritz, 61 Kan. App. 2d at 505.
As for Alma's alleged improper use of John's name, the Goldizens allege Alma's
attorney improperly changed John's name on "court garnishment documents" without
court permission. But they provide no record citations or analysis to support their claim.
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Our review of the record reveals that in August 2021, the Goldizens filed two
separate motions for relief and sanctions, which each accused Alma's attorney of (among
other things) improperly changing John's name on a garnishment order without court
permission. The district court denied these motions, describing one as "full of allegations
but no legally cognizable claim for which this court could grant relief" and the other as
addressing procedural issues with "no showing of actual damages."
The Goldizens do not explain how the district court erred in dismissing this claim,
so we find it waived and abandoned as well. See Russell, 306 Kan. at 1089 (holding that a
point raised incidentally in a brief and not argued is considered waived or abandoned).
6. Did the district court abuse its discretion in not allowing other parties to join the
action?
The Goldizens argue that the district court erred in refusing to join the "true"
parties here. But they fail to support this claim with record citations, analysis, or legal
authority.
Our review of the record reveals the Goldizens moved to join third parties under
Rule 19 on October 30, 2020, apparently in both the 2017 case and the 2019 case, in
which they alleged: (1) Alma was incompetent, three other individuals were pursuing
claims in her name, and they should be joined as plaintiffs, and (2) two other individuals
lived in the Kansas home, were liable for rent just like the Goldizens, and should be
joined as defendants. The district court denied this motion on December 20, 2020, noting
the Goldizens should have filed it well before the trial in 2018.
We review the denial of a motion to join a necessary party under K.S.A. 60-219
under an abuse of discretion standard. Landmark Nat'l Bank v. Kesler, 289 Kan. 528, Syl.
¶ 1, 216 P.3d 158 (2009). Again, the Goldizens fail to explain how the district court
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abused its discretion, so we find this argument waived and abandoned. See Russell, 306
Kan. at 1089 (holding that a point raised incidentally in a brief and not argued is
considered waived or abandoned). As to the failure to join additional plaintiffs, they
merely provide a fleeting reference to their allegation that Alma was mentally
incapacitated and thus unable to participate as a plaintiff, with no record citation or
analysis of how the court allegedly erred. They also only briefly complain in the
conclusion section of their brief that Alma improperly failed to sue a third party whom
they claimed also lived in the home and owed rent—again providing no record citation or
analysis. We cannot find the district court erred in denying their motion on this record.
7. Did the district court abuse its discretion in denying the Goldizens' requests for a jury
trial?
The Goldizens next assert the district court erred in denying their "numerous
motions for a jury trial." They offer no explanation or support for this argument—they
simply list a string of quotes from various legal opinions which have no connection to the
issues, nor do the Goldizens attempt to draw one. Since the district court granted
summary judgment to Alma, the Goldizens have no right to a jury trial on Alma's claim
for rent. They make no argument that the district court improperly granted summary
judgment—by, for example, asserting the fact-findings or legal conclusion on which
summary judgment was based were unsupported. We therefore find no merit in this
argument.
8. Did the district court abuse its discretion in dismissing the Goldizens' claims that
Alma's counsel acted unethically?
The last issue the Goldizens raise on appeal is a claim that Alma's counsel did not
adhere to ethical standards. They argue Alma's counsel "should be sanctioned and fined
accordingly along with being reported to the bar" for "illegal discrepancies and acts."
Their complaints in this regard all center on their allegations that Alma's counsel did not
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properly serve defendants and "fraudulently and illegally changed" John's name without
leave of court. Again, they provide no record citations or further explanation to support
their claims. We have already noted the district court determined these underlying
complaints were meritless and the Goldizens did not explain how the court erred. We find
the Goldizens have waived and abandoned this argument as well for their failure to
adequately brief it. See Russell, 306 Kan. at 1089.
CONCLUSION
Vague references, assertions with no support in the record, and incomplete
analysis do not satisfy a party's burden on appeal. The Goldizens have provided us with
no basis to find any error by the district court in the decisions they challenge.
Affirmed.
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