NO. 87-321
I N THE SUPREME COURT OF THE STATE OF MONTANA
1988
MURLAND W. SEARIGHT and V I R G I N I A
SEARIGHT,
P l a i n t i f f s and A p p e l l a n t s ,
-vs-
MICHAEL C I M I N O ,
D e f e n d a n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h 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 F l a t h e a d ,
T h e H o n o r a b l e L e i f E r i c k s o n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
P a t r i c k M. Springer, K a l i s p e l l , M o n t a n a
F o r Respondent:
J a m e s C. Bartlett, K a l i s p e l l , Montana
S u b m i t t e d on B r i e f s : Nov. 6, 1987
Decided: January 12, 1988
~ i l e d ? h ? j1 2 - j q 6i$1
1
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Appellants appeal from a judgment and order of the
District Court, Eleventh Judicial District, Flathead County,
denying appellants' prayer for Rule 11 sanctions against
respondent and imposing sanctions in favor of respondent. We
affirm.
Appellants raise five issues on appeal.
1. Did the District Court deprive appellants of
property without due process in violation of the United
States and Montana Constitutions?
2. Did the District Court otherwise err by ruling that
appellants were required to prepare and convey an easement to
respondent?
3. Did the District Court abuse its discretion by
adopting verbatim respondent's proposed findings of fact and
conclusions of law?
4. Did the court err by failing to impose sanctions on
respondent and his counsel as required by Rule 11,
M.R.Civ.P.?
5. Did the court abuse its discretion when it imposed
Rule 11 sanctions on appellants?
Respondent raised two issues of his own.
1. Was appellants' motion to alter or amend the
judgment timely filed, and was the notice of appeal timely
filed?
2. Should sanctions be imposed against appellants
pursuant to Rule 3 2 , M.R.App.P., for bringing this appeal?
This dispute initially arose during litigation between
the parties concerning respondent Cimino's liability for half
the costs of the construction of an airstrip on property
owned by appellants, the Searights, and adjacent to property
the Searights had sold to Cimino. On May 14 , 1985 , judgment
was entered in favor of the Searights. The contract for deed
contained a provision that allowed Cimino the right to use
the airstrip and obligated the Searights to secure that right
in the event they sold their property. On June 5, 1986,
Cimino's attorney mailed the Searights' attorney a check in
satisfaction of the judgment and a document for the
Searights' signatures giving Cimino an easement for the use
of the airstrip. Shortly thereafter, Murland Searight sent
his attorney a letter in which he complained that the
easement went outside the scope of the contract for deed and
that he would not sign it. Cimino's attorney received a copy
of the letter and was also told by the Searights' attorney
that no easement would be forthcoming.
On July 29, 1986, respondent Cimino filed a motion to
cause appellants to execute an airport easement. Murland
Searight fired his attorney on August 6 , 1986. On August 12,
the Searights' new attorney filed a motion to dismiss or in
the alternative for a date certain and a request for
sanctions pursuant to Rule 11, of the Montana Rules of Civil
Procedure. A hearing was held August 13 on respondent's
motion for easement. An easement agreeable to both parties
was eventually prepared, signed, and recorded. On December
5, 1986, Searights again requested sanctions against Cimino
for bringing the motion for easement. A hearing on this
motion was held February 20, 1987. Both parties presented
testimony. An order in favor of the respondent was entered
on March 12, 1987, levying sanctions of $100 against the
Searights on the Court's own motion. The Searights then made
a motion to alter or amend the judgment and a motion for stay
of execution which were denied. They appeal from the March
12 order and from denial of their subsequent motions.
Before addressing the merits of the case we will turn
our attention to respondent's claim that appellants1 motion
to alter or amend and notice of appeal were untimely.
The Searights made a motion to alter and amend judgment
pursuant to Rule 5 9 (g), M.R.Civ.P. This rule gives a party
10 days after the service of the notice of the entry of the
judgment to serve this motion. When notice is served by mail
the period for taking an action increases by three days.
Rule 6 (e), M.R.Civ.P. The notice of the entry of the
judgment was mailed on May 4. This gave appellants until May
1 8 to file the motion. (May 17 fell on a Sunday so the
period was extended to Monday. Rule 6(a), M.R.Civ.P.)
Appellants mailed their motion on May 1 5 . Service by mail is
completed upon mailing. Rule 5(b), M.R.Civ.P. Therefore
appellants1 motion was served well within the statutory
period.
Appellants' motion was denied June 17, 1987. Appellant
filed a notice of appeal July 14, 1987 again within the 30
day statutory period. Rule 5, M.R.App.P. Notice of appeal
was timely filed.
We now address the merits and combine appellants' issues
nos. 1 and 2 as follows:
Did the District Court deprive appellants of property in
violation of the due process clause in the Montana and United
States Constitutions or otherwise err when it ordered the
appellants to prepare and convey an easement to the
respondent?
Respondent argues that this issue is not properly before
the court because it is a matter which was not raised or
objected to at trial, and cannot be heard for the first time
on appeal. Appellants argue that because it involves a
fundamental constitutional right it may be heard.
This Court held in City of Missoula v. Mix (1950), 123
Mont. 365, 214 P.2d 212, that an easement is a property right
protected by the constitutional guarantee against the taking
of private property without just compensation. In cases of
fundamental rights this Court will hear constitutional issues
on appeal for the first time. Montana Power Co. v. Fondren
(1987), 737 P.2d 1138, 1144-45, 44 St.Rep. 850, 858.
Appellants' main claim is that they were denied a
hearing in a meaningful manner. Unfortunately for their
claim, no record was made of the hearing on respondent's
motion for an easement. There is evidence on the record,
however, that shows the appellants made no objection
whatsoever to the court's suggestion that an easement be
drawn. Apparently, no order was made and the motion was
continued with the intent that the matter be settled by
counsel. This was done to the satisfaction of both parties.
The appellant, Murland, testified at the sanctions hearing
that he had been willing to grant Cimino an easement all
along for some 7 or 8 years. It was appellants' attorney who
drafted the easement. They can hardly claim that they have
been unconstitutionally deprived of their property.
Appellants ask that we find the District Court erred in
ordering Searight to convey an easement to Cimino. There is
some confusion as to whether an order was actually issued or
whether the parties were simply told to work it out amongst
themselves. In any event, no record of the relevant hearing
was made. This Court cannot base its review on thin air.
For a question to be reviewable, the error complained of must
be founded on or be borne out by the record, which should be
in such form as to enable the reviewing court to determine
what the error is. Francis v. Heidel (1937), 104 Mont. 580,
586, 68 P.2d 583, 585, quoting 4 C.J.S. Appeal and Error, 5
1154 (1937). It is the duty of counsel to preserve the
record for appellate review. Scofield v. Estate of Wood
(Mont. 1984), 683 P.2d 1300, 1302, 41 St.Rep. 1212, 1215.
Because there is no record of their efforts, we will not
disturb the actions of the parties in putting the easement on
the record.
Appellants' next dispute the District Court's findings
of fact and conclusions of law resulting from the hearing on
sanctions. Appellant finds fault with all eleven of the
court's findings of fact and argues that the court
uncritically adopted the respondent's proposed findings of
fact. This Court is not compelled when confronted with the
verbatim adoption of proposed findings and conclusions to
find such inherent fault therein that the prevailing party
must be reversed. Sawyer-Adecor Intern., Inc. v. ~ n g l i n
(1982), 198 Mont. 440, 447, 646 P.2d 1194, 1198. The
standard for review of the findings and conclusions is the
same. City of Billings v. Public Service Com'n. (Mont.
1981), 631 P.2d 1295, 1301, 38 St.Rep. 1162, 1165. The
District Court's findings will not be rejected if they are
supported by the evidence. 631 P.2d at 1301.
After close review of the record, this Court finds only
two instances where the findings are not supported by
substantial credible evidence. Finding of fact no. 11
contains the following statement:
... and since this Court had previously found
that an easement was warranted the Motion for
Sanctions under Rule 11 should never have been
brought.
Appellants argue that this ignores the fact that a motion for
Rule 11 sanctions was contained in their August 12, 1986
motion to dismiss respondent's motion for an easement. The
hearing on respondent's motion was held the next day on
August 13. Apparently, the District Court focused only on
the appellants' second motion for sanctions which was filed
on December 5, 1986. The District Court also misstated a
fact in its conclusion of law no. 6. In it, the court finds
that the correspondence between Murland Searight and his
attorney refusing Cimino's easement was only produced at the
request of Cimino's counsel. This is not correct. A copy of
this letter had been sent to respondent's counsel at the time
it was written and attached to respondent's motion for
easement. We hold, however, that both misstatements
constitute harmless error because neither are necessary to
support the District Court's decision.
Appellant's fourth issue alleges the ~istrict Court
committed error in failing to impose Rule 11 sanctions
against the respondent. Rule 11 states in pertinent part:
Every pleading, motion, or other paper of a party
represented by an attorney shall be signed by at
least one attorney of record in his individual
name, whose address shall be stated. A party who
is not represented by an attorney shall sign his
pleading, motion, or other paper and state his
address. Except when otherwise specifically
provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. The
signature of an attorney or party constitutes a
certificate by him that he has read the pleading,
motion, or other paper; that to the best of his
knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and
is warranted by existing law or a good faith
argument for the extension, modification, or
reversal of existing law, and that it is not
interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless
increase in the cost of litigation.. ..
Rule 11, M.R.Civ.P.
Appellants argue that respondent's motion to cause
appellants to execute an easement was not grounded in fact or
warranted by existing law. They argue that the motion was
based on Rule 70, M.R.Civ.P. which calls for the enforcement
of a judgment and no such judgment had been made. They also
argue that the easement proposed was needless and
inflanunatory and that the motion was calculated to frustrate
appellants.
The current Rule 11, M.R.Civ.P. is virtually identical
to the federal rule. Sanctions under this rule have been
rarely imposed in Montana resulting in little case law.
Federal authority indicates that the duty of the lawyer is to
investigate both as to law and fact before filing a motion.
The standard is that of reasonableness under the
circumstances. Golden Eagle Distributing Corp. v. Burroughs
Corp. (9th Cir. 1986), 801 F.2d 1531, 1536. Because the rule
mandates sanctions if violated, the duty of an appellate
court is to review de novo the legal question of whether the
specific conduct in question violated the rule. Golden Eagle
Distributing Corp., 801 F.2d at 1538; Zaldivar v. City of Los
Angeles (9th Cir. 1986), 780 F.2d 823, 828; Eastway Const.
Corp. v. City of Mew York (2d Cir. 1985), 762 F.2d 243, 254
n. 7.
Appellants are correct in their position that Rule 70,
M.R.Civ.P. cannot be used as the basis for respondent's
motion for an easement. Rule 70 is a civil contempt statute
that provides:
If a judgment directs a party to execute a
conveyance of land or to deliver deeds or other
documents or to perform any other specific act and
the party fails to comply within the time
specified, the court may direct the act to be done
at the cost of the disobedient party by some other
person appointed by the court and the act when so
done has like effect as if done by the party.
This Court can find no judgment that directs appellants
to convey an easement to respondent, and respondent does not
argue that there is one. This does not, however, defeat
respondent's motion. There is subst-antial evidence on the
record that the appellants agreed, at least superficially, to
give respondent an easement. Cimino requested one several
times over a period of 7 or 8 years and each time had been
told he could have one. Yet when Cimino's attorney finally
presented one, appellant responded to his own attorney in a
letter which reads in pertinent part:
In fact, the agreement does not contemplate the
granting of any easement at all. If he is not
content with the rights assured in the contract for
deed, I am willing to execute a separate
irrevocable license embodying the language of the
Contract for Deed. I will not grant him additional
privileges or rights beyond those already agreed.
This put Cimino's attorney in a difficult spot.
Searights' attorney told Cimino's no easement would be
forthcoming. Cimino's attorney could not contact Searight
directly as he was still represented by counsel. It was
reasonable to assume that the Searights were reversing their
position as to the granting of an easement. He could either
do nothing or attempt to secure his client's position by
taking action through the court. He chose the latter.
Although Cimino's attorney took action using an inappropriate
rule, it was not unreasonable under the circumstances. We
affirm the District Court.
The appellants lastly appeal the District Court's
imposition of Rule 11 sanctions in the amount of $100. Using
the same analysis discussed above, we hold that the court did
not err. The purpose of Rule 11 is to reduce frivolous
claims and motions. Appellants first raised the issue of
sanctions in a motion to dismiss respondent's motion for
easement. An easement agreeable to all was prepared by
appellants' attorney and executed. Since appellant Murland
testified he had been willing to grant an easement all along
and this one was agreeable to him, that should have ended the
matter. Yet on December 5, 1986, the appellants again filed
a request for Rule 11 sanctions citing respondent's motion
for an easement as its basis. The District Court found that
the appellants had made contradictory statements concerning
their willingness to grant an easement. Throughout this
litigation the appellants have acted in a contradictory and
inconsistent manner with regard to the easement. Once an
easement that was agreeable to Searights, one that the
Searights claim they were willing to give all along, was
executed there was no basis for further action. We affirm
the District Court's imposition of Rule 1 1 sanctions on
appellants.
Respondent has requested that we impose sanctions for a
frivolous appeal under Rule 32, M.R.App.P. We decline.
Where a reasonable ground for appeal exists no sanctions
under Rule 32 will be imposed. Erdman v. C & C Sales, Inc.
(1978), 176 Mont. 177, 184, 577 P.2d 55, 59. There was
reasonable doubt as to the sufficiency of the findings of
fact.
Affirmed.