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No. 99-614
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 198
300 Mont. 450
5 P.3d 1026
SUZAN KINSEY-CARTWRIGHT,
Plaintiff and Appellant,
v.
FLOYD A. BROWER,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Musselshell,
The Honorable John R. Christensen, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Matthew J. Sisler, Attorney at Law, Missoula, Montana
For Respondent:
David M. Wagner, Crowley, Haughey, Hanson, Toole, & Dietrich, P.L.L.P.,
Billings, Montana
Submitted on Briefs: February 17, 2000
Decided: July 20, 2000
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
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1. ¶The Plaintiff, Suzan Kinsey-Cartwright, filed a complaint in the District Court for
the Fourteenth Judicial District in Musselshell County, in which she alleged that the
Defendant, Floyd A. Brower, trespassed on her property and assaulted her. The
District Court awarded Brower summary judgment. Kinsey-Cartwright appeals the
judgment of the District Court. We affirm the District Court.
1. ¶The issues on appeal are:
1. Did the District Court err when it awarded Brower summary judgment?
2. Did the District Court abuse its discretion when it sanctioned Kinsey-Cartwright
pursuant to Rule 11, M.R.Civ.P.?
1. ¶3. Should sanctions be imposed against Kinsey-Cartwright for filing a frivolous
appeal pursuant to Rule 32, M.R.App.P.?
FACTUAL BACKGROUND
1. ¶Suzan Kinsey-Cartwright and Douglas M. Burleson had a dispute over an easement
across Kinsey-Cartwright's property. Burleson hired attorney Floyd A. Brower to
represent him, and filed a claim for injunctive relief. Burleson alleged that he had an
easement over Kinsey-Cartwright's property and asked the District Court to enjoin
her from obstructing the alleged easement. Kinsey-Cartwright hired attorney
Matthew J. Sisler to represent her.
1. ¶On May 15, 1998, Burleson and Brower investigated the disputed easement.
During his deposition, Brower testified that he and Burleson drove up the alleged
easement until they reached a gate, which was crossing the road near Kinsey-
Cartwright's home. Brower testified the following then occurred:
A. She came out of the house and asked me what I was doing.
Q. Who?
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A. Suzan Kinsey and I replied, I'm here because these gates are not to be locked, one;
they're not even to be here, two; and I wanted them removed now.
Q. You realized that this was her home, right?
A. I wasn't even off the easement. I was standing on the easement when I said that.
Q. On her place?
A. I'm standing on the easement. I'm entitled to be there. I was standing on the easement.
She had two dogs that were barking and yelping, so then voices were raised. She then
advised me that-although the locks appeared to be locked, they weren't. Then she asked
me if I wanted to talk to her attorney and I said, yes; I' ll talk to an attorney.
She then went back in the house. She went back in the house and one of the dogs went in
the house. She had chained one up at the corner of the house. I went back, started taking
more pictures. And when she came out of the house with this cordless telephone in her
hand, holding it out, she unchained-either one dog came out of the house with her or she
unchains one, but there was one dog there and he was between us. He was on the
easement. And she said, do you want to talk to my attorney? And I said, sure. Every time I
would advance to talk to her, this dog would try to attack me from the right. And so I
would go back, she would come up and she would hand this telephone, and this happened
about three times. This dog was really making passes at me.
Finally, I said, if the son-of-a-bitch bites me, I'm going to have him destroyed and I'm
going to sue you, and she had a sparkle in her eye and a big smug look on her face and she
said nothing. She went for the phone like this again. I moved toward it and he really tried
to take me. And I said, again, if that son-of-a-bitch bites me, I'm going to have him
destroyed and I'm going to sue you. This got her attention.
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She got a hold of the dog. He was lunging. She still had the phone in this hand and he was
lunging, he was lunging and he was lunging. So I went kind of this way and she handed
the phone to me. I backed away.
The words on the other line were, Floyd, you're trespassing and I replied, you don't know
what you're talking about. I was president of this company. [] Rodegheiro and I drafted
these easements, get off my back. You don't know what you're talking about. Goodbye.
I then moved to hand the phone back to her and she said, you better look out, he's liable to
bite you. You better lay this on the ground. So I did, laid it on the ground and I retreated to
the pickup and this dog was lunging. She was trying to hold him as she backed toward her
house. There was no time when she was in the yard that there wasn't a dog in between us
at her side. And the only time that I was within arm's length was when I touched that
telephone.
1. ¶Kinsey-Cartwright described the event in her affidavit as follows:
On May 15, 1998, Floyd Brower and Douglas Burleson entered upon Mrs. Kinsey-
Cartwright's property despite her requests and demands for them to leave.
On May 15, 1998, Floyd Brower exited his pickup truck and assaulted Suzan Kinsey-
Cartwright by flailing his arms and fists in the air, by shouting profane words and by
approaching her in an intimidating fashion, creating the reasonable apprehension of bodily
injury.
On May 15, 1998, Floyd Brower stepped well beyond the alleged 60 foot summer access
easement and into Mrs. Kinsey-Cartwright's yard when Floyd Brower assaulted and
intimidated her.
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Kinsey-Cartwright also testified during her deposition that she was frightened, and that
Brower said he was going to slap her. When asked if Brower used the word smack,
Kinsey-Cartwright testified: "Yes, you did. It was smack or slap. You were yelling so
loudly there were times I didn't understand what you were saying." She also testified that
she could have misunderstood Brower's words.
1. ¶During his deposition, Burleson testified that Kinsey-Cartwright's dogs were
barking loudly; that Kinsey-Cartwright and Brower were both speaking loudly; and,
that other than calling the dog a "son-of-a-bitch," and maybe using the phrase "damn
gates," Burleson did not recall Brower speaking profanely. Burleson also testified
that, although Brower may have pointed his finger toward Kinsey-Cartwright, he
was not shaking his fist; that during the exchange between Brower and Kinsey-
Cartwright, the closest the two were to one another was 10 or 15 feet; and that
Brower was never more than 15 feet from the vehicle.
1. ¶Following the confrontation, on the same day, May 15, 1998, Kinsey-Cartwright
drafted a complaint against Brower in which she alleged that Brower assaulted her
and trespassed on her land. Subsequently, both parties moved the District Court for
summary judgment. On September 2, 1999, the District Court granted Brower
summary judgment. It also sanctioned Kinsey-Cartwright pursuant to Rule 11, M.R.
Civ.P. The District Court found:
Sisler, apparently upset over the way he was treated by Brower, immediately drafted a
Complaint on behalf of Kinsey-Cartwright alleging she was civilly assaulted by Brower
(because he yelled obscenities at her) on that day and that Brower had unlawfully entered
her property. Without further investigation, the Complaint went in the mail and was filed
the following Monday in the Musselshell County Clerk of Court's office.
Kinsey-Cartwright then appealed the District Court's decision to this Court.
1. ¶On February 17, 2000, after the parties filed their briefs with the clerk of this
Court, Brower moved this Court to strike portions of Kinsey-Cartwright's reply
brief. Brower asserted that Kinsey-Cartwright improperly raised factual and legal
arguments regarding assault and trespass in her reply brief which were not raised in
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her opening brief. On March 7, 2000, Kinsey-Cartwright moved this Court to "join
this appeal" with her appeal from the judgment entered in Cause No. DV 98-42. She
asserted that the easement issue resolved in that case is inextricably interrelated with
the assault and trespass claims on appeal in this case. On March 28, 2000, we issued
a consolidated order in which we granted Brower's motion to strike those portions of
Kinsey-Cartwright's reply brief addressing assault and trespass and denied Kinsey-
Cartwright's motion to consolidate.
ISSUE 1
1. ¶Did the District Court err when it awarded Brower summary judgment?
1. ¶We review summary judgment orders de novo. See Motarie v. Northern Montana
Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. We
determine whether the district court correctly applied Rule 56, M.R.Civ.P., which
provides that summary judgment is only appropriate where there is no genuine issue
of material fact, and the moving party is entitled to judgment as a matter of law. See
Gilkey v. Schweitzer, 1999 MT 18, ¶ 9, 295 Mont. 345, ¶ 9, 983 P.2d 869, ¶ 9.
1. ¶With the exception of four sentences, Kinsey-Cartwright's entire argument in her
brief is devoted to arguing that no easement burdened her land. This case, however,
is an appeal from the District Court's award of summary judgment with respect to
Kinsey-Cartwright's complaint of trespass to land and assault. It is not an appeal
from the District Court's judgment in Burleson v. Kinsey-Cartwright, et al, DV-98-
42 regarding the validity of the easement over Kinsey-Cartwright's property.
Therefore, those arguments regarding the validity of the easement are irrelevant to
this appeal.
1. ¶The four sentences in Kinsey-Cartwright's opening brief relating to trespass to land
and assault were:
The lower court determined that Mrs. Kinsey Cartwright's claims of assault and trespass
were not supported by fact or law. The court was wrong on both issues. The facts
contained in Mrs. Kinsey Cartwright's testimony supported the claims. The law, applied to
Mrs. Kinsey Cartwright's facts, supported the claims.
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1. ¶This is not a legal argument. It contains no discussion of the law relating to
trespass to land or assault; it contains no citation to legal authority; it contains no
citation to the record; and it contains no application of the law to the facts. It is
simply a collection of conclusions. In State v. Blackcrow, 1999 MT 44, ¶ 33, 293
Mont. 374, ¶ 33, 975 P.2d 1253, ¶ 33, we held:
It is not this Court's obligation to formulate arguments or locate authorities for the parties
in support of their positions on appeal. See Johansen v. State, Dept. of Natural Resources,
1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24; Small v. Good (1997), 284
Mont. 159, 163, 943 P.2d 1258, 1260; State v. Sol (1997), 282 Mont. 69, 76, 936 P.2d 307,
311; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1127.
Accordingly, we conclude that there is no meritorious argument to consider on appeal
from the award of summary judgment in this case. Therefore, we hold that the District
Court did not err when it awarded Brower summary judgment.
ISSUE 2
1. ¶Did the District Court abuse its discretion when it sanctioned Kinsey-Cartwright
pursuant to Rule 11, M.R.Civ.P.?
1. ¶We review the imposition of discovery sanctions to determine whether the district
court abused its discretion. Sullivan v. Sisters of Charity of Providence of Montana
(1994), 268 Mont. 71, 77, 885 P.2d 488, 492. We give deference to the trial court
because it is in the best position to know whether the party in question has
disregarded the other's rights, and is in the best position to determine which sanction
is most appropriate. Sullivan, 268 Mont. at 77, 885 P.2d at 492.
1. ¶The purpose of the Montana Rules of Civil Procedure is to "secure the just, speedy,
and inexpensive determination of every action." Rule 1, M.R.Civ.P. When litigants
and their attorneys abuse the rules they are subject to sanctions. See Sullivan, 268
Mont. at 77, 885 P.2d at 492. The district courts should punish those who engage in
dilatory discovery actions rather than patiently encourage their cooperation. See
Morris v. Big Sky Thoroughbred Farms, Inc., 1998 MT 229, ¶ 13, 291 Mont. 32, ¶
13, 965 P.2d 890, ¶ 13 (citing Owen v. F. A. Buttery Co. (1981), 192 Mont. 274,
278, 627 P.2d 1233,1235.) Rule 11, M.R.Civ.P., provides:
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Every pleading, motion, or other paper of a party represented by an attorney shall be
signed by at least one attorney . . . .
....
The signature . . . constitutes a certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of the signer's knowledge, information,
and belief formed after reasonable inquiry it is well grounded in fact and is warranted by
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.
....
If a pleading, motion, or other paper is signed in violation of this rule, the court, upon
motion or upon its own initiative, shall impose upon the person who signed it, a
represented party, or both, an appropriate sanction . . . .
However, before the district court can impose sanctions pursuant to Rule 11, M.R.Civ.P.,
it must conduct a hearing. See State ex rel. Lovins v. Toole County (1996), 278 Mont. 253,
263, 924 P.2d 693, 698 (citing Lindey's, Inc. v. Goodover (1994), 264 Mont. 489, 497,
872 P.2d 767, 772).
1. ¶The District Court found that Kinsey-Cartwright's attorney filed her complaint
without conducting an investigation into the facts. Kinsey-Cartwright does not
dispute the District Court's findings, rather she contends that the because the District
Court failed to conduct a hearing before it imposed Rule 11 sanctions, the Court's
sanctions were improper. Brower responds that Kinsey-Cartwright did not request a
hearing.
1. ¶We will not review a district court's procedural error unless the appellant has made
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a timely objection. Green v. Green (1978), 176 Mont. 532, 536, 579 P.2d 1235,
1237. In Green we said, "[i]t has long been the rule of this Court that on appeal we
will not put a District Court in error for a ruling or procedure in which the appellant
acquiesced, participated, or to which appellant made no objection." Green, 176
Mont. at 536, 579 P.2d at 1237. We will not hold a district court in error for an
omission which it was not given an opportunity to correct. See State ex rel. Lovins,
278 Mont. at 257, 924 P.2d at 695.
1. ¶Kinsey-Cartwright was clearly entitled to a hearing regarding the District Court's
imposition of Rule 11 sanctions. However, Kinsey-Cartwright cites no objection to
the District Court's failure to conduct a hearing, and our review of the record reveals
none. Since Kinsey-Cartwright failed to object, we will not hold the District Court
in error for failing to conduct a Rule 11 hearing. Accordingly, we affirm the District
Court's imposition of sanctions pursuant to Rule 11, M.R.Civ.P.
ISSUE 3
1. ¶Should sanctions be imposed against Kinsey-Cartwright for filing a frivolous
appeal pursuant to Rule 32, M.R.App.P.?
1. ¶Brower requests the imposition of sanctions against Kinsey-Cartwright for filing a
frivolous appeal pursuant to Rule 32, M.R.App.P., which provides the following:
If the supreme court is satisfied from the record and the presentation of the appeal in a
civil case that the same was taken without substantial or reasonable grounds, such
damages may be assessed on determination thereof as under the circumstances are deemed
proper.
1. ¶Kinsey-Cartwright's brief contained only four sentences discussing trespass to land
and assault. In those four sentences, Kinsey-Cartwright did not discuss the facts or
the law. The remainder of her argument was dedicated to an easement issue, which
was not included in this appeal.
1. ¶This Court is burdened by a heavy volume of business and the problem is
needlessly aggravated when frivolous appeals are taken. See CNA Ins. Cos. v. Dunn
(1995), 273 Mont. 295, 302, 902 P.2d 1014, 1018. We conclude that this appeal was
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taken without substantial or reasonable grounds. We further conclude that this is a
proper case in which to impose sanctions for a frivolous appeal pursuant to Rule 32,
M.R.App.P., and we, therefore, remand to the District Court for a determination of
Brower's reasonable costs and attorney fees incurred on appeal.
1. ¶The judgment of the District Court is affirmed and this case is remanded for further
proceedings consistent with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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