IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 93-536
DON BYRON REILLY AND MARY LOU REILLY,
Plaintiffs and Appellants,
)OPINION
--vs.- AND
; ORDER
FARM CREDIT BANK OF SPOKANE (FORMERLY
KNOWN AS FEDERAL LAND BANK OF SPOKANE),
VALARIE WAREHIME, ANDW. ARTHURGRAHAM,
Defendants and Respondents.
Appellants, Don Byron Reilly and Mary Lou Reilly (the Reillys)
filed a Notice of Appeal on October 7, 1993. Respondents filed a
Motion to Dismiss and Request for Sanctions on November 5, 1993.
The bases for this motion are that the appeal was untimely filed
and that the Reillys' appeal is without merit and was taken without
substantial or reasonable grounds. The Reillys filed a memorandum
opposing the respondents' motion on November 9, 1993, and we are
prepared to rule on respondents' motion to dismiss and request for
sanctions.
This action is a result of the Federal Land Bank of Spokane's
(Bank) foreclosure on the Reillys' real property. The Reillys have
initiated a multitude of litigation in an attempt to stymie the
Bank's attempt to foreclose.
On October 2, 1990, the Reillys filed a "Notice of Intent to
Sue" with the Ravalli County District Court. On the same day, the
Reillys recorded a "Notice of Lis Pendens" on the subject real
property. On December 23, 1991, the Reillys filed a formal
complaint in District Court. The complaint did not allege a claim
regarding the real property described in the Notice of Lis Pendens,
nor did it name the owners of the real property as defendants.
On March 9, 1993, the District Court granted summary judgment
to the Respondents and ordered the dismissal of the complaint with
prejudice. The District Court also imposed sanctions against the
Reillys, which permanently prohibited them from commencing any
actions in the District Court "relating to or arising from their
Deed of Trust to the Federal Land Bank of Spokane (now known as the
Farm Credit Bank of Spokane) and/or the foreclosure thereof and
subsequent judicial proceedings relating thereto without first
having obtained leave of [the District Court]." A formal judgment
was entered in favor of the Respondents on May 20, 1993, and the
Respondents filed a Notice of Entry of Judgment on May 27, 1993.
On August 20, 1993, the Respondents filed a motion requesting
that the District Court dissolve the Notice of Lis Pendens, based
on the District Court's dismissal of the Reillys' complaint. The
District Court ordered the Notice of Lis Pendens dissolved on
September 8, 1993. On October 7, 1993, the Reillys filed a Notice
of Appeal.
The Respondents filed a motion to dismiss based on the
Reillys' failure to timely file a notice of appeal from the final
judgment entered on May 20, 1993. Rule 5(a)(l), M.R.App.P.,
requires that an appellant file a notice of appeal "within 30 days
from the date of the entry of the judgment or order appealed from.
. . ." In this case, the Reillys are .appealing from the formal
judgment of the District Court dated May 20, 1993. The Respondents
filed a notice of entry of judgment on May 27, 1993, and the thirty
day period to file a notice of appeal began running on that date.
Clearly, the Reillys' notice of appeal, filed on October 7, 1993,
is untimely based on Rule 5(a)(l), M.R.App.P.
In addition, the District Court's order of September 8, 1993,
dissolving the lis pendens on the property, is not an appealable
"special order". Rule l(b)(2), M.R.App.P., provides, in pertinent
part:
In civil cases a party aggrieved may appeal from a
judgment or order, except when expressly made final by
law, in the following cases: . . . (2) . . . from any
special order made after final judgment. . . .
This Court has previously defined a "special order" as one
"affecting the rights of some party to the action, growing out of
the judgment previously entered." Chicago, Milwaukee & St. Paul
Ry. Co. v. White (1908), 36 Mont. 437, 440, 93 P. 350, 351. Here,
the District Court's order dissolving the lis pendens does not
affect the rights of either of the parties to the action. Rather,
the judgment entered by the District Court on May 20, 1993,
established the legal and substantive rights of the parties. The
Reillys never raised any claims regarding the real property
described in the lis pendens and failed to name the owners of the
real property as defendants. The order of September 8, 1993,
merely lifted the "cloud" on the real property's title placed there
by the Reillys when they filed the lis pendens and did not affect
the rights of the parties to the action.
Therefore, because the Reillys failed to file a notice of
appeal within thirty days after the notice of entry of final
judgment was filed on May 27, 1993, their appeal is time-barred,
and this Court is without jurisdiction to consider the appeal.
Respondents have requested that we sanction the Reillys due to
the Reillys' continued filing of meritless appeals and applications
for writs. On October 14, 1993, we cautioned the Reillys against
filing frivolous, vexatious, and meritless documents with this
Court. On November 10, 1993, we sanctioned the Reillys for filing
an application for a writ of mandamus which was improperly
researched and groundless. When an appeal is entirely unfounded
and causes delay, the respondent is entitled to reasonable costs
and attorney's fees. Hock v. Lienco Cedar Products (1981), 194
Mont. 131, 140, 634 P.2d 1174, 1179. In this case, the Reillys'
appeal is entirely unfounded and we hold that sanctions are
appropriate. As a sanction, the Reillys' shall Pay the
Respondents' attorney's fees and costs incurred in responding to
the Reillys' appeal.
For the foregoing reasons,
IT IS HEREBY ORDEREDthat the Respondents' Motion to Dismiss
Appeal should be and is hereby GRANTED, and Appellants' appeal
should be and is hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Respondents' Request for
Sanctions is GRANTED, and Appellants are ordered to pay
Respondents' costs and attorney's fees incurred on this appeal.
This action is remanded to the District Court for a hearing to
determine the appropriate costs and attorney's fees to be awarded
as sanctions.
IT IS FURTHER ORDERED that the Clerk of the District Court of
the Twenty-First Judicial District shall docket this Order in the
judgment docket of Ravalli County.
IT IS FURTHER ORDERED that neither the Clerk of this Court nor
the Clerk of the Twenty-First Judicial District Court in Ravalli
County shall accept for filing any further pleadings or documents
in this Cause No. 93-536, or in Ravalli County Cause No. 93-300
until said attorney's fees and costs are fully paid, satisfied, and
discharged.
IT IS HEREBY FURTHER ORDERED that the Clerk of this Court
serve Respondent' counsel of record, the Appellants, pro se, and
the District Court b mail with a copy of this Order.
Dated this /&%y of Nov