Lussy v. Bennett

$10. 84-402 I N THE SUPRCLPE COURT O F THE STATE O F MOXTANA 1984 RICHARD C . LUSSY, P l a i n t i f f and A p p e l l a n t , FRANK BENNETT, DONALD CLARK, JOHN STEVENS and THE F I R S T SECURITY BANK OF ANACONDA, F I R S T FEDERAL SAVINGS O F GREAT F A L L S , F I R S T MONTANA T I T L E INSURANCE, and SUlJlMIT VALLEY T I T L E COMPANY, T I C O R TITLE D e f e n d a n t s and R e s p o n d e n t s . APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of D e e r L o d g e , T h e H o n o r a b l e R o b e r t B o y d , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: R i c h a r d C. L u s s y , p r o s e , S e a t t l e , Washington F o r Respondents: K n i g h t , M c L e a n , D a h o o d & E v e r e t t ; D a v i d M. M c L e a n , Anaconda, Montana (Bennett, C l a r k , Stevens, F i r s t s e c u r i t y ) J a m e s , G r a y & M c C a f f e r t y ; L a r r y E. Johnson, G r e a t F a l l s , M o n t a n a ( F i r s t F e d . Savings & L o a n ) Ernmons & C o d e r ; R o b e r t J . E r n m o n s , G r e a t F a l l s , 14ontana ( F i r s t Mont. T i t l e Ins. ) J a m e s R o b i s c h o n , (Summit V a l l e y T i t l e ) , B u t t e , Montana S u b m i t t e d on B r i e f s : Nov. 29, 1984 Decided: December 28, 1984 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Richard C. Lussy appeals from an order of the District Court, Third Judicial District, Deer Lodge County, granting summary judgment to the respondents. He further appeals from an order of the District Court refusing to allow hin to file an amended complaint so as to he allowed attorney fees as a wro se litigant. L - On October 25, 1984, this Court issued. a restraining order in cause no. 84-407 of this Court enjoining the appellant from proceeding pro - in any Montana court without se requesting a leave to file or proceed, and staying all pending actions brought by him pro - se. In prosecuting this appeal, the appellant is acting pro - se. We have lifted the restraining order with respect to this appeal in order to provide due process to all parties before the court in this case. Lussy filed a complaint. in District Cou.rt seeking to remove a "trespassing house" which protruded onto land to which he then held title. As to this cause of action the District Court granted summary judgment in favor of the respondents, dismissing the complaint with prejudice an.d awarding to the respondents attorney fees. The District Court denied Lussy's motion for summary judgment on his behalf. It also refused to allow Richard Lussy to file an amended complaint so as to claim attorney fees as a pro - se litigant. Lussy appeals the judgment and order. On August 12, 1974, Henry P. and Dyane Lussy, the brother and sister-in-law of Richard, acquired title to a p a r c e l o f l a n d i n Anaconda, t o which w e w i l l r e f e r a s P a r c e l A. Henry began c o n s t r u c t i o n o f a home on P a r c e l A . On J a n u a r y 27, 1977, Henry P. L u s s y p r o c u r e d a s u r v e y o f P a r c e l A which showed t h a t t h e home e r e c t e d by him p r o t r u d e d by n e a r l y h a l f o n t o t h e a d j a c e n t l a n d t o which w e w i l l r e f e r as Parcel E. To remedy the situation, Henry P. Lussy o b t a i n e d a deed from t h e owner, Anaconda Company, on August 1 2 , 1977, a n d r e c o r d e d it on March 1 0 , 1978. A s of t h e d a t e of t h e Anaconda Company d e e d , Henry P. a n d h i s w i f e Dyane owned all of Parcels A and B and the residence situated thereon. On March 1 0 , 1978 Henry P. and Dyane L u s s y e x e c u t e d a T r u s t Deed t o t h e F i r s t F e d e r a l S a v i n g s and Loan A s s o c i a t i o n of Great F a l l s f o r Parcel A only. The T r u s t Deed dict n o t include t h e description f o r Parcel B, e v e n t h o u g h Henry P. a n d Dyane owned b o t h P a r c e l s A a n d B a t t h e t i m e a n d Henry knew t h a t t h e home was l o c a t e d b o t h on P a r c e l A and P a r c e l B . On J u n e 8 , 1 9 ? 9 , Henry P . and h i s w i f e e x e c u t e d a T r u s t Deed t o F i r s t S e c u r i t y Bank o f Anaconda a s t h e b e n e f i c i a r y . T h i s i n d e n t u r e incl-uded P a r c e l s A a n d B t o s e c u r e a n o t e o f $11,704. The p r o c e e d s of t h e n o t e w e r e u s e d t o e n l a r g e t h e home l o c a t e d on P a r c e l s A a n d B. On August 20, 1 9 8 2 , F i r s t F e d e r a l ' s T r u s t I n d e n t u r e was foreclosed on Parcel A. This had the legal effect of e l i m i n a t i n g a n y s e c u r i t y i n t e r e s t o f F i r s t S e c u r i t y Rank i n P a r c e l A f o r i t s l o a n o f J u n e 8 , 1979. F i r s t S e c u r i t y Bank s t i l l had i t s s e c u r i t y i n t e r e s t i n P a r c e l B. On March 16, 1983, First S e c u r i t y Rank assigned its interest i n t h e June 8, 1979 n o t e and t r u s t d e e d t o F i r s t Montana. A l l payments on t h e J u n e 8 , 1979 n o t e were b r o u g h t current by Henry F. I,ussy, the father of Henry P. and Richard, who made the payments up to August 8, 1983. Thereafter Richard C. L u s s y made t h e payments on t h e n o t e beginning September 13, 1983, and continued to keep the payments on t h e n o t e c u r r e n t t o t h e d a t e o f t h e a c t i o n i n t h e D i s t r i c t Court. In April of 1983, Richard C. Lussy, Henry F. L,ussy, Henry P. L u s s y and Dyane E . Lussy f i l e d a c o m p l a i n t i n Deer Lodge County D i s t r i c t C o u r t a g a i n s t t h e same p a r t i e s a s t h i s a c t i o n , b u t a l s o i n c l u d i n g a s a d e f e n d a n t Maurice A. Maffei. The p a r t i e s w e r e a p p a r e n t l y a c t i n g pro E. D i s t r i c t Judge Mark S u l l i v a n i n t h a t a c t i o n n o t e d t h a t Henry F. L u s s y would have been the only party entitled to relief and had acknowledged h e was a c t i n g on b e h a l f o f Henry P. and p e r h a p s Dyane L u s s y . The D i s t r i c t C o u r t viewed Henry F . ' s action as c o n s t i t u t i n g t h e unlawful p r a c t i c e of l a w and d i s m i s s e d t h a t action. On September 9, 1983, Henry F. Lussy, acting as attorney-in-fact for Henry P. and his wife, conveyed by w a r r a n t y d e e d t o R i c h a r d a l l o f P a r c e l B. The e f f e c t o f t h i s d e e d was t o g i v e R i c h a r d C . Lussy t h e r e c o r d ownership o f P a r c e l B and t h e appearance of a r i g h t t o l i t i g a t e r e g a r d i n g P a r c e l B. On September 9 , 1983, t h e d a t e h e a c q u i r e d P a r c e l B, R i c h a r d f i l e d a c o m p l a i n t a g a i n s t t h e same d e f e n d a n t s i n Deer Lodge Cou-nty. T h e r e h e s o u g h t damages o f $8,885,000. T h a t c o m p l a i n t was d i s m i s s e d by R i c h a r d on O c t o b e r 11, 1.983. On O c t o b e r 14, 1983, Richard Lussy filed the present action. The compl-aint s e e k s t h e removal o f t h e h o u s e from Parcel B. In the discovery proceedings Richard testified t h a t i n t a k i n g t i t l e t o P a r c e l B and i n b r i n g i n g t h e a c t i o n he intended eventually to divide any money settlement resultin9 therefrom among the family members 011 an agreed division of any damages recovered. Since the note indebtedness with respect to Parcel B was kept current to the time of the action in the District Court, First Montana, as the assignee of the trust indenture from First Security, has not threatened or corrmenced foreclosing the debt against Richard or Henry P. Lussy. Richard Lussy filed for summary judgment on his behalf, and all the remaining respondents filed for summary judgment in their hehalves. The District Court denied Lussyfs motion for summary judgment, and granted summary judgments to a.11 of the respondents. Lussy also moved to amend the complaint by adding attorney fees for pro - litigants. se After briefing, the District Court denied this motion of Lussy's also. This appeal ensued. On appeal, Lussy frames the issues as follows: "(1) The trial court below has so far departed from the accepted and usual course of judicial proceedings, as to call for the exercise of revisory jurisdiction by the Montana Supreme court: "(A) reversal of the trial courts 3/23/84 ORDER DENYING MOTION FOR SUPMARY JUDGIUIENT AGAINST ALL DEFENDANTS BY THE PLAINTIFF RICHARD C. LUSSY ... 'found to be frivolous and champerous in nature and against public policy and will not be enforced by this court.' " ( 2 ) The attorney plaintiff/appellant pro se takes the unusual challenge of striking drwn as unconstitutional Section 37-61-215, MCA: "It shall be unlawful for any court within this state to allow attorneys' fees in an action or proceeding before said court in which attorneys' - - allowed l?y - to either party to such fees are law action or proceedinq --party is represented when such l?y anyone other - - a duly admitt-eTor licensed than at law. (Emphasis added. ) " attorney -- Simply stated the i.ssu.es appeal presented by the pro on - litigant, are: se (1) did the District Court err in denying summary judgment to Richard Lussy; and (2) is section 37-61-215, MCA, providing no attorney fees to persons other than attorneys, unconstitutional. It will be observed that the issues framed by Richard Lussy do not question the summary judgments granted to the respondents. His issues do not question the award of attorney fees to First Montana or the other respondents. Tnstead, Richard Lussy argues the denial of his motion for summary judgment and attacks section 37-61-215, MCA, as being unconstitutional. The District Court denied Lussy's motion for summary iudgment because the court found his complaint to be frivolous and champertous in nature and against public policy. The District Court was correct. By his own statement, Richard Lussy acauired title to Parcel R for the purpose of bringing this action, and dividing the proceeds among the remaining members of his family. Under section 37-61-408, MCA, an attorney is prohibited from acquiring a claim or demand for purpose of bringing action. It is illegal under the statute to give or to promise to give a valuable consideration to any person as sr, inducement to place in the hands of the promisor a demand of any kind for the purpose of bringing an action thereon. Under section 37-61-411, MCA, the same rule applies when a party prosecutes in person an action instead of acting through an attorney. Lussy's complaints smacks of champerty, and public policy reauires dismissal of his action. Although the issue is not directly raised by Richard Lussy, we also determine that the summary judgments granted in favor of the defendants in this case by the District Court were correct. Defendants Frank Bennett, Dona1.d Clark, John Stephens, and The First Security Bank of Anaconda have no interest in either parcel of land in dispute and therefore Lussy's action for trespass could not be naj-ntained against them. First Montana Title Insurance is First Security Rank's assignee of the trust indenture of Parcel B, the land allegedly encroached upon. In his deposition Lussy stated that this defendant had no involvement with the alleged trespass. Summit Val-ley Title Company's involvement in the suit arises from being a trustee of both trust indentures. The first indenture was extinguished by foreclosure. The second indenture on Parcel R continues. Summit Valley owes Richard Lussy a duty as trustee under the indenture, but that is its only connection to the property. Summit Valley has no connection with the alleged trespass. First Federal Savings and Loan Association and Ticor Title are involved. Those respondents are the only parties named in the suit that conceivably could be liable in trespass. However the District Court was correct in ordering award of summary judgment in their favor also. In Harris v. Issac 11940), 111 Mont. 152, 158, 107 P.2d 137, 141, this Court stated that a cause of action in trespass does not accrue unless the injury complained of i-s shown to be the direct and proximate result of the defendants ' wrongful- or negligent acts or defaults. The record reveals no such evidence and it was the obligation of Lussy, as the party defending summary judgment, to establish a genuine issue of material fact with respect to defendants in order to prevent summary judgment. With respect to the second issue, the purported unconstitutionality of section 37-61-215, MCA, Richard Lussy has no standing to question its validity in any event. He is not a prevailin? party in the action below. The general rule is in the ~hsenceof statute or contract, attorney fees will not be awarded. Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 P.2d 1107, 1-112. On a reciprocal basis, if the respondents were entitled to attorney fees in this case by virtue of contract, Lussy would be entitled to attorney fees on a reciprocal basis under section 28-3-704, MCA. However to bring himself within the latter section, he must again be the prevailing party. J-,ussy purports to bring himself within the statute allowing attorney fees, on the basis that he was the attorney-in-fact for the members of his family. Of course he is confusing an attorney authorized to practice law with a . person clothed with the powers of an agent. He further claims that by proceeding pro - he is in truth an attorney, set and as such is entitled to attorney fees. It may be said that such an argument is frivolous. Richard Lussy has manufactured in his arguments, an amorphous theory of recovery called "Justinhoard." He apparently means to say that judges and lawyers hoard justice or the means of obtainins justice to themselves forming what he calls a "cesspool of corruption." Jurisprudentially, he is plowing new ground, but we see little prospect of a crop. Richard C. Lussy, by his various pro - actions, has se caused the courts of Montana some considerable difficulty. Fe has sued judges, attorneys and others left and right, l charging conspiracies, ahuse of "Justinhoard," and expounding like theories of law. While his misdirected efforts have caused the courts difficulty, the real tragedy is that he has cost himself a considerable amount of money and wasted time i n h i s vain pursuits. However much w e d e s i r e t o k e e p t h e c o u r t s open t o a l l p e r s o n s s e e k i n g t o a d j u s t t h e i r r i g h t s , d u t i e s a n d r e s p o n s i b i l i t i e s , w e must a l s o t a k e i n t o a c c o u n t t h e e f f e c t t h a t h i s a c t i o n s b r i n g on o t h e r p a r t i e s t o h i s suits. I n t h i s case, t h e respondents a r e e n t i t l e d t o t h e i r peace. I t is f o r t h a t reason we l i f t e d t h e r e s t r a i n i n g o r d e r heretofore entered against Mr. Lussy, to bring this p a r t i c u l a r case t o a conclusion. J u d g m e n t s and o r d e r o f t h e D i s t r i c t C o u r t a r e a f f i r m e d . j , i " "yk L.c2,5 L-LL,, Justice I W e Concur: