No. 90-371
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
LEONARD F. THOMAS,
Plaintiff and Appellant,
-vs-
DONNA E. HALE,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy M. McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard F. Thomas, Pro Se, Helena, Montana
For Respondent:
James R. Halverson, Esq., Attorney at Law, ~illings,
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Decided: December 13, 1990
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Justice John Conway Harrison delivered the Opinion of the Court.
The District Court, in and for the First Judicial District,
Lewis and Clark County, entered summary judgment in defendant's
favor. Plaintiff appeals and we affirm.
On appeal, Thomas has enumerated ten issues for review. Many
of these issues overlap, some are not briefed and still others are
not dispositive of the case. Therefore, we restate the issues as
follows:
1. Whether the District Court erred in granting summary
judgment in Hale's favor on the issue of constructive fraud.
2. Whether the District Court erred in granting summary
judgment in Hale's favor on the issue of visitation interference.
On August 31, 1989, Leonard Thomas (Thomas) sued Donna L. Hale
(Hale) alleging fraud and visitation interference. Thomas filed
this suit as a result of Hale's February 22, 1989 expert testimony
in a separate dissolution proceeding between Thomas and his ex-
wife Nancy Thomas Erler in which Thomas sought to amend the
dissolution decree regarding Thomas' visitation rights with R.,
their daughter. Hale is R.Is counselor and, in that capacity, Hale
gave opinions on visitation during the dissolution proceeding.
Specifically, Hale testified that R.'s school performance had
declined since the time that Thomas had reinitiated visitation with
R. following an eight-year absence. Thereafter, on February 27,
1989, the court amended its previous order by increasing Thomas'
summer visitation rights from one week to two weeks and restricting
overnight visits for a period of five months.
Following the February 27, 1989 order, Thomas filed three
motions with the court alleging that Hale's testimony regarding
R.'s school performance was erroneous and asked for a rehearing.
Thereafter, by agreement of the parties, the venue of the Thomas
v. Thomas case was changed to Lewis and Clark County. A hearing
was held on Thomast motions beginning on October 19, 1989, and
continuing on October 23, 1989. At that hearing, testimony was
presented by R.s1 teachers on the issue of R.'s school performance
which corroborated Hale's previous expert testimony which Thomas
disputed. Thomas' motions and the hearings which followed
culminated in the District Court's Findings of Fact, Conclusions
of Law and Order dated January 5, 1990. The District Court
specifically found that Rita Bertelson, R.'s teacher for the 1988-
89 school year, testified that R. was having difficulty in school
and was often upset. The District Court vacated the two previous
orders and awarded Thomas visitation rights with R. Itoneday each
week for two and one-half hours after school and shall further have
visitation one weekend day, two times each month, from 9:00 a.m.
until 5:00 p.m." The court also stated it would review the matter
in 120 days to determine if visitation should be extended.
Meanwhile, on August 31, 1989, as a result of the February
27, 1989 order which prompted Thomas' motion for a rehearing,
Thomas also filed the instant case in which he contended the order
was ttadversevt him and was improperly founded on Hale's allegedly
to
perjured testimony regarding R.'s school performance and that,
therefore, Hale was liable for constructive fraud and visitation
interference. The parties submitted briefs and argued, and on June
28, 1990 the District Court issued its final order granting summary
judgment on all issues in Hale's favor. From this order Thomas
appeals. We affirm. Additional facts pertaining to each issue
will be discussed as necessary.
The first issue for review is whether the District Court
properly granted summary judgment in Hale's favor on the issue of
constructive fraud.
Summary judgment should be granted if the moving party
successfully carries its burden to establish that there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. To satisfy
its burden of proof, the movant must provide the court with
evidence which clearly indicates what the truth is, and which
excludes any real doubt as to the existence of a genuine issue of
material fact. Van Uden v. Hendricksen (1980), 189 Mont. 164, 167,
615 P.2d 220, 222. Once the movant has discharged this burden of
proof, the party opposing the matter must come forward with
substantial evidence raising a genuine issue of material fact.
Rule 56(e), M.R.Civ.P. ; Riley v. Carl (1981), 191 Mont. 128, 622
P.2d 228. Further, the non-moving party must set forth specific
facts and cannot simply rely upon their pleadings, nor upon
speculative, fanciful, or conclusory statements. Simmons v.
Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. Then,
applying these standards of review, this Court will not reverse a
district courttssummary adjudication unless such order is clearly
erroneous resulting in an abuse of discretion. Walker v. Larson
(1986), 223 Mont. 333, 335, 727 P.2d 1321, 1322-23.
Section 28-2-406, MCA, defines constructive fraud as:
(1) any breach of duty which, without an
actually fraudulent intent, gains an advantage
to the person in fault or anyone claiming
under him by misleading another to his
prejudice or to the prejudice of anyone
claiming under him; or
(2) any such act or omission as the law
especially declares to be fraudulent, without
respect to actual fraud.
In the lower court Thomas argued that Hale committed
constructive fraud because she allegedly misrepresented to the
court the facts of R.'s school performance while testifying in the
capacity as R. Is social worker at a February 22, 1989 hearing.
Thomas attempted to satisfy the first element of constructive fraud
by arguing that this alleged misrepresentation constituted a breach
of a legal duty which Hale owed Thomas. The lower court granted
summary judgment on this issue in favor of Hale.
Now Thomas argues that summary judgment was not proper because
there existed a genuine issue of a material fact regarding Hale's
alleged misrepresentation. Here Thomas has concluded, based on
his own speculation and opinion rather than substantial objective
evidence contained in the record, that Halets February 22, 1989
testimony was untrue. Thomas1 speculation, in and of itself, is
not enough to carry the burden required in order to preclude
summary judgment.
On the other hand, we find that Hale has satisfied her burden
of proof as required by Rule 56 (c), M.R.Civ.P. A review of the
record shows that Hale s testimony that R. s grades had dropped
was corroborated by R., herself, and later by R. Is grade school
teacher as well as by an affidavit from R.'s mother. The District
Court found that Haletstestimony regarding R.Is school performance
was not perjured and that;therefore, no cause of action existed.
Since these findings are supported by the record, we adopt them.
Therefore, we find that no genuine issue of material fact exists,
and that Hale was entitled to judgment as a matter of law. As
such, we hold that the District Court properly granted summary
judgment in Halets favor on the issue of constructive fraud.
The last issue is whether the District Court properly granted
summary judgment in Halets favor on the issue of visitation
interference.
Thomas argues that Hale aided and assisted R.'s mother Nancy
in attempting to prevent, obstruct, and frustrate Thomast
visitation rights. Thcmas bases his argument, again, on
allegations that Halets testimony was perjured.
Section 45-5-631, MCA, makes visitation interference a crime.
That section states in pertinent part: "(1) A person who has legal
custody of a minor child commits the offense of visitation
interference if he knowingly or purposely prevents, obstructs, or
frustrates the visitation rights of a person entitled to visitation
under an existing court order.I1 Thomas urges that a civil cause
of action exists for visitation interference and that Hale is
liable. The pleadings and evidence in the record fail to
demonstrate any act committed by Hale that could be attributed to
visitation interference. The facts are clear. Hale was hired to
counsel R. Hale testified in court as to her observations and
professional opinions. Thomas1 mere allegations, absent any
substantiation by objective evidence, that Hale lied and
collaborated with Nancy, without more, do not support a cause of
action for visitation interference. Thomas had ample opportunity
at the hearing to cross-examine Hale and present contrary evidence
which might have precluded summary judgment but chose not to do so.
Furthermore, Hale1s testimony supported continued visitation by
Thomas subject to a temporary restriction. Therefore, we hold that
Hale was entitled to summary judgment on the issue of visitation
interference. The District Court is hereby affirmed.
Sanctions
Thomas1 parental and visitation rights have been the subject
of at least five separate legal actions or proceedings within the
last two years. These issues originally arose in the dissolution
proceeding between Thomas and his ex-wife Nancy in which Thomas
sought to amend the dissolution decree regarding visitation rights.
Then came the case initiated by Nancy and her ex-husband, Mark
Erler, in an attempt to terminate Thomast parental rights and to
establish the relationship of parent and child between Erler and
R. In the third action, Thomas sued Nancy and Mark and their
attorney for malicious prosecution and abuse of process in having
brought the adoption action. Next came the action Thomas initiated
against Hale alleging constructive fraud and visitation
interference stemming from her testimony at a hearing held in the
dissolution action. The fifth and last proceeding is the appeal
now before this Court. Throughout the course of these numerous
proceedings Nancy was represented by counsel while Thomas primarily
appeared pro se. All but one of these proceedings were initiated
by Thomas. Thomas claims that his motives for initiating these
court proceedings were to establish and foster a loving parent-
child relationship with R., his daughter. Ironically, these
proceedings have created an environment of hatred and has caused
more grief and heartache than any tender-aged child, such as R.,
should ever have to endure. Each of these proceedings has caused
unnecessary distress both emotionally as well as financially on
behalf of all parties involved. This in turn has had a profound
adverse effect on R.'s well-being. We wish to put an end to
Thomast abuse of the judicial system.
As we have previously stated, ItIt is important for the sake
of the litigants and for the judicial system that litigation will
at some time be finally ended. It Lussy v. Dye (1985), 215 Mont. 91,
93, 695 P.2d 465, 466. When an appeal, such as this one, is taken
without substantial or reasonable grounds, we conclude that
sanctions are appropriate. Searight v. Cimino (1989), 238 Mont.
218, 223, 777 P.2d 335, 337. Pursuant to Rule 32, M.R.App.P., we
therefore impose damages on Leonard F. Thomas in the amount of $250
to be paid to the District Court.
We concur:
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Justices
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