Ruiz v. Marysville Mutual Ins. Co.

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NOT DESIGNATED FOR PUBLICATION

No. 116,263

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LAWRENCE RUIZ,
Appellant,

v.

MARYSVILLE MUTUAL INSURANCE COMPANY,
Appellee.


MEMORANDUM OPINION

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed April 14, 2017.
Affirmed.

Alan V. Johnson, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, for
appellant.

Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.

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

Per Curiam: Lawrence Ruiz appeals the district court's decision granting
summary judgment in favor of Marysville Mutual Insurance Company (Marysville
Mutual) on an insurance policy claim that arose after a pipe burst in the basement of a
vacant rental property owned by Ruiz. On appeal, Ruiz claims that he substantially
complied with Kansas Supreme Court Rule 141 (2017 Kan. S. Ct. R. 204) so as to raise a
genuine issue of material fact that should have precluded summary judgment. He also
claims that the evidence submitted by Marysville Mutual in support of its summary
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judgment motion was insufficient to entitle it to judgment as a matter of law. For the
reasons stated herein, we reject Ruiz' claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2014, Ruiz filed a claim with Marysville Mutual stemming from
water damage caused by a broken pipe. The damage occurred at a vacant rental property
owned by Ruiz located at 1600 N. Madison, Junction City, Kansas. Ruiz discovered the
damage on January 25, 2014. The Junction City water department had shut the water off
to the residence after discovering that "the meter was 'spinning,'" and Ruiz later received
an $1,800 water bill as a result of the uncontrolled running water.

Independent insurance claims adjuster Larry Vossen investigated the claim for
Marysville Mutual. He concluded that the damage appeared to have been the result of a
frozen pipe bursting at the interior water shut-off valve for the entire house. Vossen
discovered and documented that the water line for the residence was not turned off at the
outside meter. He also discovered and documented that the residence was equipped with
a fully-functioning thermostat and gas furnace, which was the sole source of heat.

Ruiz' insurance policy only covered damage from frozen pipes under certain
circumstances. The applicable section provided coverage for damage caused by:

'"Freezing of plumbing, heating, or air conditioning systems or domestic appliance – This
does not cover loss on the insured premises while the residence is vacant, unoccupied
(including temporary absence) or is under construction and unoccupied. However, this
exclusion does not apply if any insured has used reasonable care to:
"a. maintain heat in the building or mobile home; or
"b. shut off the liquid supply and completely empty the domestic appliance."

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Marysville Mutual hired consulting engineer Joseph A. Yoder, P.E. to further
investigate the claim. Yoder analyzed records from Kansas Gas Service that outlined the
gas usage at the residence. The average gas usage around the time of the pipe burst—
December 2013 to February 2014—was 6.06 Mcf, which was significantly lower than the
same period of time in the preceding two winters, which "was 65.6 Mcf and 42.2 Mcf
respectively." The gas usage "between January 22, 2014, and February 20, 2014, was
0.0068 Mcf," which indicated to Yoder the furnace was either off or the thermostat was at
its lowest temperature setting. During this same time period, the gas usage was "less 'than
the average winter usage of gas per day in 2012 and 2013.'"

Yoder confirmed that the pipe apparently froze and burst at the shut-off valve,
releasing an uncontrolled flow of city water into the basement. The valve itself was the
actual point of failure. Yoder opined that had the water been shut off outside the house at
the meter and the plumbing system drained, the valve would not have frozen. Based on
Yoder's report, Marysville Mutual denied Ruiz' claim in a letter dated June 11, 2014.

On March 13, 2015, Ruiz filed a petition for breach of contract in district court,
undertaking the lawsuit pro se, seeking damages in the amount of $67,384.82. The
petition initially named Marysville Mutual and Cardinal Insurance as defendants, but
Cardinal Insurance was later dismissed. Marysville Mutual filed its answer on March 31,
2015, raising numerous affirmative defenses. The record reflects numerous discovery
problems, including motions to compel discovery filed by Marysville Mutual and
multiple hearings scheduled by the district court to address discovery issues. At one
point, Ruiz filed a motion to recuse the original judge assigned to the case, but that
motion was overruled by the chief judge of the Eighth Judicial District.

On February 22, 2016, Marysville Mutual filed a motion for summary judgment
alleging that there were no genuine issues as to any material facts and that Marysville
Mutual was entitled to judgment as a matter of law. In the memorandum supporting
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summary judgment, Marysville Mutual listed 27 uncontroverted facts. Marysville Mutual
argued that the coverage exclusion from the policy applied in this case because the
residence was vacant and Ruiz did not "use reasonable care to: a) maintain heat in the
residence; OR b) shut off the water; AND completely empty or drain the plumbing."

On March 10, 2016, Ruiz requested an extension of time to respond to the
summary judgment motion. Marysville Mutual objected to the extension of time. On
March 23, 2016, the court denied the extension of time indicating that the summary
judgment motion would proceed as previously scheduled.

On March 30, 2016, Ruiz filed a "declaration" in opposition to Marysville
Mutual's motion for summary judgment. In the declaration, Ruiz claimed that both the
electricity and gas were turned on at the residence "on or about December 10, 2013."
Ruiz claimed that on that same date, he turned on the heat and set the thermostat in the
residence to 65 degrees. Ruiz claimed he checked on the property "approximately once
per week" and always checked the thermostat on such visits. Lastly, Ruiz claimed that
when he discovered the water damage on January 25, 2014, he shut off the gas until
plumbing repairs were made.

The district court heard oral arguments on the motion for summary judgment on
April 5, 2016. The district court first found that Ruiz did not comply with Supreme Court
Rule 141 in responding to the summary judgment motion. As to Ruiz' request for
extension of time to respond to the motion, the district court noted that it had explained
all applicable deadlines to Ruiz at the case management conference, specifically the
deadline for Ruiz to respond to the summary judgment motion. The district court rejected
Ruiz' untimely declaration and admitted all of the uncontroverted facts from Marysville
Mutual's memorandum supporting summary judgment. Based on the uncontroverted
facts, the district court granted summary judgment in favor of Marysville Mutual.

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Ruiz, through counsel, filed a motion for reconsideration on May 9, 2016. On June
14, 2016, the district court filed its written ruling upholding summary judgment. The
district court found that in responding to the summary judgment motion, Ruiz had
absolutely and utterly failed to comply with every aspect of Supreme Court Rule 141,
describing Ruiz' action as "a wholesale ignoring of the entirety of the Rule." The district
court found that the uncontroverted facts presented by Marysville Mutual were "more
than sufficient . . . to grant summary judgment on this issue even when viewed in the
light most favorable to Mr. Ruiz." Ruiz timely filed a notice of appeal.

COMPLIANCE WITH SUPREME COURT RULE 141

On appeal, Ruiz claims that he substantially complied with Supreme Court Rule
141 so as to raise a genuine issue of material fact that should have precluded summary
judgment. Specifically, Ruiz claims that because he filed his declaration prior to the
summary judgment hearing and claimed in the declaration that reasonable care was used
in heating the residence, he substantially complied with Rule 141 and the summary
judgment motion should have been denied.

Marysville Mutual contends that Ruiz failed to comply with Rule 141 in
responding to the summary judgment motion. As a result, Marysville Mutual asserts that
the district court properly admitted all of the uncontroverted facts in support of the
motion for summary judgment. Marysville Mutual claims that no court should "tolerate
the litigation tactics or behavior that Ruiz had deployed . . . or the attendant responsive
attorney's fees and related expenses he caused Marysville Mutual to incur."

Whether Ruiz substantially complied with Kansas Supreme Court Rule 141 in
responding to the summary judgment motion presents a question of law subject to
unlimited review. Rhoten v. Dickson, 290 Kan. 92, 100, 223 P.3d 786 (2010).

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As Ruiz points out, K.S.A. 2016 Supp. 60-256 controls summary judgment
motions. The statute provides that "[a] party may move for summary judgment . . . after
the close of all discovery; [and] a party opposing the motion must file a response within
21 days after the motion is served or a responsive pleading is due, whichever is later."
K.S.A. 2016 Supp. 60-256(c)(1)(A) and (B). "The judgment sought should be rendered if
the pleadings, the discovery and disclosure materials on file, and any affidavits or
declarations show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." K.S.A. 2016 Supp. 60-256(c)(2).

Kansas Supreme Court Rule 141 provides additional requirements for the filing of
a motion for summary judgment and response. Rule 141 states in pertinent part:

"(b) Response to Motion for Summary Judgment; Requirements. A memorandum
of brief opposing a motion for summary judgment must:
(1) state—in separately numbered paragraphs that correspond to the
numbered paragraphs of movant's memorandum or brief—whether each of
movant's factual contentions is:
(A) uncontroverted;
(B) uncontroverted for purposes of the motion only; or
(C) controverted, and if controverted:
(i) concisely summarized the conflicting testimony or evidence
and any additional genuine issues of material fact that preclude
summary judgment; and
(ii) provide precise references as required in subsection (a)(2);
and
(2) be filed and served on all counsel of record and unrepresented parties
not in default for failure to appear not later than 21 days after service of the
motion, unless the time is extended by local rule or court order." (2017 Kan. S.
Ct. R. 204).

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The purpose of Rule 141 "is to identify 'what facts are or are not controverted' or
'on what evidence the parties rely.'" Bank of America v. Inda, 48 Kan. App. 2d 658, 670,
303 P.3d 696 (2013). "[S]ubstantial compliance with Rule 141 can be enough." 48 Kan.
App. 2d 670. '''[S]ubstantial compliance' is '"'compliance in respect to the essential
matters necessary to assure every reasonable objective of the statute.'"' [Citations
omitted.]" In re Adoption of X.J.A., 284 Kan. 853, 868, 166 P.3d 396 (2007). A mere
"technical violation of Rule 141" will not automatically render judgment for an opposing
party. Bank of America, 48 Kan. App. 2d at 670.

Here, the district court did not accept Ruiz' declaration because, first and foremost,
it was untimely. According to the district court's prior scheduling order, Ruiz' deadline
for responding to the summary judgment motion was March 21, 2016. In denying Ruiz'
request for an extension of time to respond, the district court indicated that it had worked
with Ruiz to make sure that he was well aware of the proper deadline. Ruiz has provided
no reason for this court to find that the district court abused its discretion in denying the
request for an extension of time to file a response. Moreover, the untimely declaration
that Ruiz ultimately filed did not comply with Rule 141(b)(1) in that it was not keyed to
the evidence in the record and it did not explicitly controvert, paragraph by paragraph,
Marysville Mutual's statement of uncontroverted facts.

As to substance, Ruiz ultimately filed a self-serving declaration stating that he, in
fact, kept the furnace at 65 degrees throughout the winter and did not shut it off until after
the pipes burst and while plumbing repairs were made. Ruiz' declaration did not
explicitly controvert the independent, objective evidence submitted by Marysville Mutual
to support its summary judgment motion. As a general rule, an affidavit submitted in
opposition to summary judgment may fail to create a material factual dispute if it is
nonspecific, vague, conclusory, or self-serving. See Fisher v. Forestwood Co., Inc., 525
F.3d 972, 978 (10th Cir. 2008).
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We agree with the district court that Ruiz did not come close to "compliance in
respect to the essential matters necessary to assure every reasonable objective of the
statute." In re Adoption of X.J.A., 284 Kan. at 880-81. As the district court stated in its
decision denying Ruiz' motion for reconsideration: "Not only did Mr. Ruiz not
substantially comply with Rule 141, there was an absolute and utter failure to comply
with any aspect of the rule. There was far more than a 'technical violation' of the Rule.
There was a wholesale ignoring of the entirety of the Rule."

In Kansas courts, pro se litigants must follow the same rules as licensed attorneys
in civil litigation. Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595-96, 730 P.2d
1109 (1986). Thus, we agree with the district court that Ruiz failed to substantially
comply with Rule 141 so as to create a genuine issue of material fact. As a result, the
district court did not err in admitting all of the uncontroverted facts from Marysville
Mutual's memorandum supporting its motion for summary judgment.

WAS THE EVIDENCE SUFFICIENT TO ENTITLE MARYSVILLE MUTUAL
TO JUDGMENT AS A MATTER OF LAW?

Next, Ruiz claims that the evidence submitted by Marysville Mutual in support of
its summary judgment motion was insufficient to entitle it to judgment as a matter of law.
Ruiz takes issue with the use of "Yoder's opinion testimony" on the issue of whether the
residence was heated. He claims that whether heat was maintained in the residence is an
issue "within the common knowledge of lay persons." Ruiz also points out that the cause
for gas usage being low between January 22 and February 20, 2014, is easily explained
by the fact that he turned off the gas on January 25, 2014, to facilitate plumbing repairs.

Marysville Mutual contends that the evidence was sufficient for the district court
to grant its motion for summary judgment. It argues that Yoder's testimony about gas
usage in the residence was corroborated by records provided by the Kansas Gas Service.
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Marysville Mutual maintains the records of gas service "show beyond any doubt that
reasonable and adequate heating did not occur during December 2013, January 2014, and
February 2014."

The summary judgment standard of review is well established.

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is not
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Drouhard-Nordhus v. Rosenquist, 301 Kan. 618,
622, 345 P.3d 281 (2015).

We agree with Ruiz that whether heat was maintained in the residence is an issue
within the common knowledge of lay persons. We also agree with Ruiz that the gas usage
records after January 25, 2014, the date Ruiz discovered the damage, were irrelevant to
the motion for summary judgment. Ruiz acknowledged that he shut off the furnace when
he discovered the water damage so that plumbers could make repairs.

Marysville Mutual's motion for summary judgment was supported by Yoder's
report, which was based on gas consumption records at the residence. Although an expert
report was not required to support the summary judgment motion, Yoder's report
supported Marysville Mutual's claim that Ruiz failed to take adequate steps to maintain
heat in the residence. Disregarding the gas usage records after January 25, 2014, Yoder's
report established that very little gas was used at the residence around the time the pipe
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burst as compared to the previous two winters. Specifically, from December 19, 2013, to
January 22, 2014, only 2.3 Mcf of gas was used at the residence compared to 18.7 Mcf
during a similar period of time the year before. The evidence submitted by Marysville
Mutual in support of its motion, which was not controverted by Ruiz in any appropriate
manner, was sufficient to entitle Marysville Mutual to judgment as a matter of law. Thus,
we conclude the district court did not err in granting the motion for summary judgment.

Affirmed.