No. 85-223
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
F. W. SCHMIDT, a / k / a WILLIAM F.
SCHMIDT,
P l a i n t i f f and A p p e l l a n t ,
COLONIAL TERRACE ASSOCIATES, a
partnership, e t a l . ,
D e f e n d a n t s and Respondents.
APPEAL F O :
R M D i s t r i c t Court of t h e F i r s t 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 County o f L e w i s & C l a r k ,
The Honorable Henry L o b l e , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
James A. Cumming, Columbia F a l l s , Montana
For Respondent:
Worden, Thane & Haines; Ronald A. Render, M i s s o u l a ,
Montana
Submitted on B r i e f s : May 3 0 , 1986
Decided: August 2 1 , 1986
Filed:
w &,& Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Plaintiff F. W. Schmidt, appeals the March 28, 1985, and
April 19, 1985, orders of the First Judicial District denying
plaintiff's motions and granting defendant's motion for
sanctions. We affirm.
This case commenced in 1979 as a suit brought by Schmidt
and others seeking forfeiture of property by Colonial Terrace
Associates (CTA) for failure to pay installments required
under contract. CTA counterclaimed for breach of contract,
negligence, fraud, and unjust enrichment. On June 17, 1981,
a jury returned a verdict of $128,278 in favor of CTA.
During trial, the parties stipulated that the amount of
offset, if any, would be later determined by the court.
However, CTA obtained a final judgment without reference to
offset and Schmidt appealed. In an opinion dated December
29, 1982, this Court vacated the judgment and remanded the
case to determine the amount of offset, if any. Schmidt, et
al., v. Colonial Terrace Associates, et al., (Mont. 1982) 656
P.2d 807, 39 St.Rep. 2318.
On remand, a special master was appointed to decide the
issue of offset. The master found that Schmidt was entitled
to an offset of $74,363.39 against the jury verdict. The
District Court adopted the master's report in its opinion,
order, and judgment dated January 17, 1984. Both parties
objected to the master's findings and filed a notice of
appeal. On February 21, 1984, Schmidt filed a motion for
restitution of funds and affidavit in support thereof.
Schmidt claimed CTA had been making insufficient monthly
payments since 1979, and that such deficiency should be
applied against the judgment in favor of CTA. By order dated
March 19, 1984, the District Court denied Schmidt's motion
for restitution of funds, finding that Schmidt sought
restitution for claims outside the scope of the original
lawsuit.
In an opinion dated January 29, 1985, this Court found
the master's report to be supported by the evidence in the
record and affirmed the judgment. Schmidt, et al. v.
Colonial Terrace Associates, et al., (Mont. 1985), 694 P.2d
1340, 42 St.Rep. 182.
On March 10, 1985, Schmidt filed a document entitled
"Motions" again requesting the District Court to determine
the actual amount, if any, that Schmidt owed to CTA. CTA
responded with a motion to strike alleging Schmidt's motions
were frivolous and filed merely for purposes of delay. A
hearing was held on March 28, 1985, concerning the parties'
motions and the District Court granted CTA's motion to strike
as to Schmidt's request that the court make a further
determination of the amount of judgment. Subsequently, by
order dated April 19, 1985, the District Court imposed
sanctions upon Schmidt and Schmidt's attorney for attempting
to raise arguments which had previously been rejected several
times.
Schmidt appeals the March 28, 1985, and April 19, 1985,
orders of the District Court. Schmidt's framing of the
issues would have this Court address the District Court's
order of March 19, 1984, denying his motion for restitution
of funds. We affirmed such denial in Schmidt, et al. v.
Colonial Terrace Associates, et al. (Mont. 1985) 694 P.2d
1340, 42 St.Rep. 182, and refuse to address the issue again.
Therefore, we address the following two issues:
1) Whether the District Court erred in denying
Schmidt's "Motions"?
2) Whether the District Court abused its discretion by
imposing sanctions?
Schmidt's "Motions1' filed on March 10, 1985, were
accompanied by his attorney's affidavit which set forth a
list of monthly payments made by CTA between July of 1979 and
August of 1984. The affidavit alleged CTA had received
credit for property tax and insurance payments not provided
for by contract; that CTA had been making deficient payments
for the entire period; that the judgment based on the June,
1981, jury verdict should be amended to reflect the numerous
fees and costs assessed to each party subsequent to that
time; that CTA had carried out an execution sale without
proper notice; that Schmidt should be permitted to carry out
additional discovery.
The District Court granted CTA's motion to strike as to
all matters listed in the affidavit with the exception of the
execution sale. In its order dated April 19, 1985, the court
stated: "[Schmidt] now asks the Court to re-litigate issues
which arose before the trial, and judgment and, further, to
litigate contractual controversies which arose after trial
and judgment and which are outside the gambit of the
pleadings." We agree with the District Court.
The jury verdict was entered June 17, 1981, in favor of
CTA in the amount of $128,278. Following appeal, a master
was appointed to determine the amount of offset. The
master's report awarded Schmidt an offset in the amount of
$74,363.39. The report also found that the issue of property
tax and insurance payments was not plead by either party and
was beyond the scope of the lawsuit. This Court affirmed
adoption of the master's report in the subsequent appeal.
Schmidt., et al. v. Colonial Terrace Associates, et al. (Mont.
1985), 694 P.2d 1340, 42 St.Rep. 186.
Schmidt again attempts to argue that payments by CTA
made prior to, and after, the June 17, 1981, verdict were
insufficient. The master's report determined the actual
amount owing between the parties as of June 17, 1981. Any
disputes occurring thereafter are outside the scope of the
lawsuit. With the exception of the execution sale, upon
which the District Court reserved opinion, all issues raised
by Schmidt's "Motions" have been previously ruled upon and
are subject to the "law of the case" doctrine. Fiscus v.
Beartooth Electric Cooperative (1979) 180 Mont. 434, 591 P.2d
196.
The District Court determined it had no power under Rule
60 (b)(5), M.R.Civ.P. to preside over the parties'
controversies throughout the life of the contract. We agree.
A jury verdict was rendered and the master's report
determined offsets. Further we find no error in the District
Court's refusal to make additional fact findings as to
offsets concerning matters arising after the trial or matters
which were not tried before the jury. If there is a new
claim the courthouse door is always open for the filing of
fresh litigation. The District Court does not have
continuing jurisdiction to supervise this matter ad
infiniturn.
Next, we address whether the District Court abused its
discretion by imposing sanctions upon Schmidt and his
attorney. Rule 11, M.R.Civ.P. authorizes a court to impose
sanctions if the court finds a motion to have been filed for
purposes of delay or is not offered in good faith.
In this case, the District Court assessed against
Schmidt and his attorney the reasonable attorneys fees and
costs incurred by CTA in opposing the motions. The District
Court found Schmidt was asking the court to do exactly what
it said it would not do in its order of March 19, 1984, and
such order had been appealed and affirmed. The March 19,
1984, order made it quite clear that the District Court would
not resolve claims and issues outside the scope of the
original lawsuit, yet one year later Schmidt's "Motions"
requested the court to do exactly that. We find no abuse of
discretion by the District Court in imposing sanctions
against Schmidt and his attorney.
The District Court is affirmed.
We Concur:
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