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 "
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                                                                     Justice
                                                              I

W e Concur: