No. 95-133
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
WILBUR A. FADNESS, individually,
and as Successor in Trust for
Mildred H. Fadness,
Plaintiff and Respondent,
v.
WILLIAM KUNTZ, III and
ANNA DE LA CHAPELLE KUNTZ,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable Leonard H. Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Kuntz, III, Pro Se, Westport, New York
For Respondent:
Zane K. Sullivan and Leslae J. E. Dalpiaz;
Sullivan & Tabaracci, Missoula, Montana
Submitted on Briefs: March 7, 1996
Decided: March 28, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter and West Publishing Company.
William Kuntz, pro se, appeals from the judgment of the
Fifteenth Judicial District Court, Roosevelt County, awarding the
plaintiff the principal and interest due on a promissory note and
punitive damages arising from defendant's fraudulent conduct in a
contract to purchase real property. We affirm.
We consider the following issues raised on appeal:
1. Did the District Court deny Kuntz a fair trial by ordering
him detained in the presence of the jury?
2. Did the District Court err in not ruling on Kuntz's motion
that his former counsel turn over his file?
3. Did the District Court err in excluding certain evidence
and exhibits offered by Kuntz?
4. Did the District Court err in rejecting certain New York
pattern jury instructions and interrogatories offered by Kuntz?
5. Did the District Court err in overruling Kuntz's objection
to statements in the closing argument relating to the "lumberyard
property?"
6. Did the District Court award excessive fees to Fadness?
7. Did the District Court err in not granting Kuntz's motion
for a directed verdict?
8. Did the District Court err in not allowing Kuntz to make
a motion for a new trial at the conclusion of the jury trial?
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This case arises out of a dispute regarding 160 acres of land
located near Wolf Point, Roosevelt County, Montana. In 1989,
William Kuntz (Kuntz) responded to an advertisement for the
property, owned by Wilbur and Mildred Fadness, and contacted the
real estate agent, Dorothy Cody (Cody), who had the listing. The
terms of the listing called for a $25,000 selling price with
thirty-percent down with the balance financed by a contract for
deed at 9% interest. In August of 1989, Cody prepared a buy-sell
agreement and forwarded it to Kuntz in New York state. Kuntz made
substantial alterations to the terms of the first agreement.
Accordingly, Cody sent another agreement to Kuntz which he altered,
signed and then forwarded directly to the Fadnesses. The Fadnesses
signed the agreement. The buy-sell agreement was filed with the
Clerk and Recorder of Roosevelt County. The altered agreement,
provided for a $500 down payment, $5,000 cash at closing with the
balance of $19,500 financed for ten-months at 9% interest. The
agreement also contained a provision, which Kuntz added, that
allowed for a ten-month extension upon payment of the accrued
interest due and a payment of two points or $390.
In November of 1989, the Fadnesses signed a warranty deed and
the deed was not recorded until approximately one year later on
November 4, 1990. Kuntz admitted that he added his wife's name,
Anna De La Chapelle Kuntz, to the deed "while it was in escrow."
The mortgage was filed in Roosevelt County on October 1, 1990. The
provision providing for the interest on the outstanding balance had
been lined through by Kuntz.
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The balance on the note and mortgage was due ten months after
closing, in August of 1991. At that time, Kuntz did not exercise
his option of extending the note for an additional ten months. In
fact, Kuntz did not pay any amount due on the note and mortgage and
was in default. Around this time, the Fadnesses were contacted by
Allen Sunukjian who introduced himself as an agent of Wolfpack
Electronics, and attempted to purchase the Fadness/Kuntz mortgage
at a discount. After the Fadnesses declined this offer, they
learned that Wolfpack Electronics was owned and controlled by
Kuntz, their mortgagee. Mildred Fadness died on December 31, 1991,
and Wilbur Fadness was appointed her personal representative for
purposes of this action.
In April of 1992, Fadness filed his complaint to foreclose on
the property and quiet title. Because the mortgage and note had
been altered by Kuntz, Fadness' ability to foreclose on the
property was limited to only Kuntz's l/2 interest in the property
and did not extend to his wife's l/2 interest. Accordingly, Fadness
included a claim for fraud, either actual or constructive, and
requested that the trier of fact reform the note and mortgage to
conform with the agreement of the parties.
On March 10, 1995, the District Court entered final judgment
ordering that the mortgage altered by Kuntz be reformed to reflect
the 9% interest rate and awarded compensatory damages in the amount
of $19,500, the balance due on the note. In a separate hearing
following the jury verdict, the jury awarded, and the District
Court approved, punitive damages in the amount of $32,000
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attributable to Kuntz's conduct constituting actual fraud. 1n
another hearing regarding attorney's fees, the District Court
awarded Fadness $16,013.95 in attorney's fees and $3,117.82 in
costs. In all, Fadness was awarded $74,898.24. Kuntz appeals from
these determinations.
1. Did the District Court deny Kuntz a fair trial by
ordering him detained in the presence of the jury?
Kuntz asserts that the District Court denied him the right to
a fair trial by ordering him to be removed to the back of the
courtroom during the punitive damages phase of the proceedings as
punishment for contempt. Fadness responds that the District Court
is empowered to punish contempt summarily when committed in the
presence of the court. Kuntz does not object to the order of
contempt, rather, he objects to the fact that he was punished in
the presence of the jury. We note that the imposition of summary
contempt and punishment is not regarded with favor, whether
exercised immediately or after trial and it is particularly tenuous
in the presence of the jury. Sacher v. United States (19521, 343
U.S. 1, 8-11, 72 S.Ct. 451, 455-56, 96 L.Ed. 717. "To summon a
[party] before the bench and pronounce him guilty of contempt is
not unlikely to prejudice [the party] .'I Sacher, 343 U.S. at 10.
Nonetheless, the error may be harmless in certain circumstances.
Davenport v. State (Ga. Ct. App. 1995), 454 S.E.2d 536, 537.
In Davenoort, the defendant, pro se, was adjudged to be in
contempt of court while in the presence of the jury. Davenoort,
454 S.E.2d at 537. While the DavenDOrt court noted that the jury
"should have been excused during the exchange between the judge and
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the pro se defendant," the court also determined that under the
facts of the case the error was harmless "as the evidence strongly
supported the verdict and it is unlikely that the contempt finding
affected the result." Davenuort, 454 S.E.2d at 537.
We determine that the same is true in the instant case. Kuntz
had been warned throughout trial that his conduct was unacceptable
and had also been held in contempt for failing to participate in a
conference call prior to trial. The court stated to Kuntz that:
You have complied with none of the rules we have in
connection [with discovery] . . instead you sent a
whole volume of papers that is almost impossible to read
when you look through them, and it makes an undue burden
on [plaintiff's counsel] and on me, and I dislike it.
This whole trial has been one big mess as far as
discovery is concerned, mainly because of you. I've
tried hundreds of lawsuits. I'm an experienced trial
lawyer . . this is the worst case I've ever seen, where
one of the clients has come through with a bunch of junk
like you have and caused nothing but court delays and
trouble and time.
Immediately before the judge held him in contempt Kuntz was warned
that he was about to be held in contempt. The following exchange
occurred:
The Court: I've ruled now . . .
Kuntz: I take an exception, Your Honor. I am not---
The Court: I don't want to hear anymore from you.
Quiet!
Kuntz: Are you going to give a rebuttal---
The Court: I'm going to have the Sheriff put you in jail
if you don't shut up.
Kuntz: Then why don't you do that?
The Court: I will.
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Kuntz: Well, then go ahead.
The Court: If you keep talking.
Kuntz: Then go ahead now in front of the jury, Your
Honor,
The Court: Alright. Where is the Sheriff?
Kuntz: He's right there.
Clerk of Court: Right there.
The Court: Alright. Take him into custody and put him
in the jail. Not in the jail, just put him in custody
right back here in the pew---
Sheriff's officer: Alriyht.
The Court: So that he can hear the proceedings.
Kuntz: Thank you, Your Honor.
The Court: You're welcome.
Kuntz: I'm glad the jury understands how this case has
been run.
The Court: Put him in-- right there. That's good
enough.
Thus, from this exchange as well as other portions of the record,
it is apparent that Kuntz goaded the court into adjudging him
guilty of contempt. As in Davenuort, the evidence strongly
supports the verdict and the award of punitive damages.
Accordingly, we hold that adjudging Kuntz guilty of contempt in the
presence of the jury was harmless error in the context of this
case.
2. Did the District Court err in not ruling on Kuntz's
motion that his former counsel turn over his file?
Kuntz asserts that the District Court did not rule on his
motion that his former counsel deliver Kuntz's file. Kuntz
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received these files by the time of trial and Kuntz does not assert
that he was prejudiced. Instead, he merely asserts that suitable
arrangements should have been resolved before trial. While this
may indeed be true, Kuntz has not shown that he was prejudiced by
failing to obtain the files at an earlier date. See George v. Fish
Creek Irrigation Co. (1959), 135 Mont. 490, 495, 342 P.2d 738, 741.
Accordingly, we hold that based on Kuntz's failure to demonstrate
prejudice, the District Court did not err in failing to rule on
Kuntz's motion.
3. Did the District Court err in excluding certain evidence
and exhibits offered by Kuntz?
Our standard of review relating to discretionary trial court
rulings, including the admission of evidence at trial, is whether
the district court abused its discretion. Hislop v. Cady (1993),
261 Mont. 243, 247, 862 P.2d 388, 390 (citing Steer, Inc. v.
Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601,
604). This Court has held that "[iIn the usual case, questions of
admissibility of evidence are left largely to the sound discretion
of the trial court, subject to review only in cases of manifest
abuse." Wailer v. Hayden (1994), 268 Mont. 204, 210, 885 P.2d
1305, 1309 (citing Britton v. Farmers Ins. Group (1986), 221 Mont.
67, 86, 721 P.2d 303, 315).
Kuntz asserts that it was error for the District Court to
refuse evidence relating to the sale of the subject property from
a prior owner, Thelma Berglund, to Kuntz's seller the Fadnesses.
He argues that at the time of the sale to him, title to the
property was in Berglund's name. Further, Kuntz asserts that it
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was error to exclude evidence that Fadness was also suing the real
estate broker, Cody, and the closing agent, Roger Wimmer, in
another suit. He asserts that this evidence related to the
"credibility and the underlying dispute, ie [sic] the closing of
the Escrow." Kuntz complains that the District Court erred in not
admitting an unsigned letter written by Mrs. Fadness. These
letters were between Kuntz and the Fadnesses and related to the
delinquency on the note.
As to the evidence regarding the Berglund to Fadness contract,
the District Court concluded that it was inconsequential to the
foreclosure and fraud actions. Kuntz failed to demonstrate that
this evidence was relevant and it is within the broad discretion of
the district court to exclude irrelevant evidence. Wailer, 885
P.2d at 1310.
Likewise, it was within the broad discretion of the court to
exclude evidence of the pending suit against Cody and Wimmer. We
note that Kuntz fails to cite to where in the record he attempted
to introduce evidence of the suit. In any event, Kuntz had the
opportunity to cross-examine Cody. Finally, as to the letter from
Mildred Fadness, the District Court determined that it was
cumulative and that Kuntz had failed to produce it earlier in
discovery. The District Court aptly noted that the document could
be excluded solely for Kuntz's discovery abuse. Nonetheless, the
court allowed Kuntz to argue why the letter was important to
Kuntz's defense. Ultimately, the court determined that the there
was no new information in the document and that the court was "not
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going to let [him] go on all afternoon on this stuff." gee wailer,
885 P.2d at 1309 (citing Rule 403, M.R.Evid.). As this Court
stated in Wailer:
The notion that a decision by the district court is
discretionary assumes there is no absolutely correct
answer for every evidentiary issue. It assumes that the
decision is a judgment call best left to the person
closest to the case--the district judge.
Waller, 885 P.2d at 1310. Similarly, in the instant case, the
District Court's judgment was exercised within that permissible
range best left to the district court.
4. Did the District Court err in rejecting certain New York
pattern jury instructions and interrogatories offered by Kuntz?
Our standard of review relating to discretionary trial court
rulings, such as the giving of jury instructions, is whether the
district court abused its discretion. Hisloo, 862 P.2d at 390.
Here, the District Court considered fifteen instructions and seven
interrogatories proposed by Fadness as well as New York pattern
instructions and interrogatories submitted by Kuntz. Even though
the instructions and interrogatories submitted by Kuntz did not
comply with Montana's District Court Rules, the court considered
them and gave New York Pattern Instruction No. 81 over Fadness'
objection. In addition, the court submitted several of Kuntz's
interrogatories to the jury.
During the jury's deliberations, the jury submitted a list of
questions relating to Kuntz's interrogatories to the court for
clarification. The court told Kuntz that:
I intend to advise the jury that they need not consider
nor answer the interrogatories propounded to them by the
defendant, unless the defendant can show me or tell me
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why the answers to these questions can be relevant
concerning any matter relating to this case. 1'11 ask
you to tell--put in the record why these questions are
relevant.
Kuntz made no such showing. Accordingly, the court instructed the
jury to cease in its attempt to answer Kuntz's interrogatories.
Thus, from the record, it is clear that the District Court
carefully considered the instructions and interrogatories offered
by Kuntz. The court was acting within its discretion in refusing
Kuntz's offered instructions and interrogatories and in instructing
the jury not to answer several of Kuntz's irrelevant
interrogatories.
5. Did the District Court err in overruling Kuntz's
objection to statements in the closing argument relating to the
"lumberyard property?"
Kuntz asserts that Fadness' counsel made an improper reference
to the price Kuntz paid for the former UBC Lumberyard in Wolf
Point. The court directed Kuntz that "[nlow I'm not going to let
you get up here and give a speech. You have not made a definite
objection. [Plaintiff's counsel] [ylou may proceed." Furthermore,
we note that in objecting, Kuntz was able to correct any
misstatement of the purchase price. We determine that the District
Court did not abuse its discretion in overruling Kuntz's objection
to statements regarding the "lumberyard property."
6. Did the District Court award excessive fees to Fadness?
Under the terms of the mortgage, Fadness is entitled to costs
and reasonable attorney's fees. Kuntz asserts that the fees and
costs awarded against him were excessive. A hearing was held to
determine the amount of fees and costs due to Fadness. At the
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hearing, Kuntz offered the testimony of witnesses regarding the
fees charged by other attorneys in the area in an attempt to
challenge the fees requested by Fadness' counsel.
During the hearing, the court also questioned the fees and
reduced the amount of fees and costs for travel to Wolf Point as
well as the amount of fees requested for the deposition of real
estate agent Cody. The District Court also stated that "Mr. Kuntz,
I think your actions in this matter are the very things that made
this case so complicated." Thus, from the record it is clear that
the District Court considered all of the evidence and testimony
presented and did not abuse its discretion in its award of costs
and attorney's fees.
7. Did the District Court err in not granting Kuntz's
motion for a directed verdict?
Kuntz asserts that the District Court improperly denied his
motion for a directed verdict. A motion for a directed verdict is
properly granted only in the complete absence of any evidence to
warrant submission to the jury, and all inferences of fact must be
considered in the light most favorable to the opposing party. If
the evidence viewed in a light most favorable to Fadness indicates
that reasonable men could differ as to the conclusions drawn from
the evidence a directed verdict is not proper. Guertin v. Moody's
Market (1994), 265 Mont. 61, 69, 874 P.2d 710, 715. From the
record, and from the jury's verdict, it is apparent that there was
sufficient evidence to overcome Kuntz's motion for a directed
verdict. Accordingly, we hold that the District Court did not err
in denying Kuntz's motion for a directed verdict.
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8. Did the District Court err in not allowing Kuntz to make
a motion for a new trial at the conclusion of the jury trial?
Kuntz asserts that he was not allowed to make a motion for a
new trial in court because he was in the custody of the sheriff at
the close of the case. We note that pursuant to Rule 59(b),
M.R.Civ.P., a party has ten days after the service of notice of
entry of judgment within which to file a motion for a new trial.
Accordingly, Kuntz was not prejudiced because he was not able to
move for a new trial in court. Kuntz had ten days after the
service of notice of entry of judgment to move for a new trial.
Under Rule 59(a), M.R.Civ.P., Kuntz was required to "state
with particularity the grounds [for the motion for a new trial], it
not being sufficient merely to set forth the statutory grounds. .
11 Here, Kuntz made no such motion and did not articulate any
particular grounds whatsoever to the District Court. In fact,
Kuntz did not even file a motion for a new trial with the district
court. Rather, Kuntz asserts that "it would have been an [sic]
useless exercise for Defendant to reduce to writing, a Motion which
the District Judge would not allow to be made in Court."
We do not agree with Kuntz's assertion that it would have been
a "useless exercise" to file a motion for a new trial. Kuntz's
obligation to comply with Rule 59(b), M.R.Civ.P., was not suspended
merely because he was dissatisfied with the District Court's
rulings. In failing to properly make a motion for a new trial,
Kuntz is deemed to have waived any objection. Accordingly, we hold
that Kuntz waived this issue on appeal due to his failure to file
a motion for a new trial pursuant to Rule 59, M.R.Civ.P., with the
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District Court.
Affirmed.
We concur:
us ices
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