DA 06-0474
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 143N
CLAY ROSELLE,
Plaintiff and Appellant,
v.
DAVIS, WARREN & HRITSCO,
WILLIAM A. HRITSCO, and
WILLIAM L. KNOX,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DV-06-12915
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Clay Roselle, Pro Se, Lima, Montana
For Respondent:
J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana
Neil G. Westesen and Matthew F. McLean, Crowley, Haughey,
Hanson, Toole & Dietrich, P.L.L.P., Bozeman, Montana
Submitted on Briefs: February 21, 2007
Decided: June 12, 2007
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and West Group in the quarterly table of noncitable
cases issued by this Court.
¶2 Appellant Clay Roselle (Roselle) appeals from the order of the Fifth Judicial
District Court granting summary judgment in favor of the Respondents. We affirm and
remand.
¶3 William Knox (Knox) is a licensed appraiser. In the fall of 2001, at the request of
the attorney for Roselle’s wife in a dissolution proceeding, he appraised the Roselles’
property. The appraisal was presented to the court at the dissolution trial July 31 through
August 1, 2003. Roselle appealed the property division in the dissolution decree and the
court’s subsequent award of attorney fees and costs. This Court affirmed the district
court in Roselle v. Roselle, 2005 MT 298N, 330 Mont. 399, 126 P.3d 506. Roselle then
filed this action, naming Knox, the appraiser, as well as Mrs. Roselle’s attorney and law
firm—William Hritsco (Hritsco) and Davis, Warren, and Hritsco.
¶4 The District Court granted summary judgment on the following claims made by
Roselle: (1) legal malpractice; (2) malicious prosecution; and (3) fraud. The court
determined that Roselle presented no legal argument regarding the claim of legal
malpractice, as he was not nor ever had been a client of Hritsco or Davis, Warren, and
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Hritsco. Since Roselle was not a client, the court held that there was no duty owed to him
by Hritsco or his firm, and there could be no viable claim for legal malpractice. With
regards to the second claim, malicious prosecution, the District Court determined that the
elements of the claim are “simply not present.” The court also determined that, as to the
fraud claim, Roselle “has not pleaded any of the nine elements of fraud.” In addition, the
court held that the two-year statute of limitations bars any claim for fraud. Further, the
court held that “all of the complaints of fraud have been previously raised, considered,
and rejected both by this Court and the Montana Supreme Court,” and thus the doctrine
of collateral estoppel prohibits repetitive litigation of the same issues.
¶5 Roselle states his issue on appeal as follows:
Judicial Officers, Attorney’s representation to the courts, must have
accountability to the people effected by a standard of justice of their
making, where under Oath to the courts and the people to maintain the
actual truth and the laws of the state. The attorney’s liability is self evident
(Thus the Complaint).
¶6 Knox asks this Court to dismiss the appeal because Roselle’s statement of the
issue does not state grounds “for any coherent or cognizable appeal of the grant of
summary judgment by the District Court generally.” Knox notes that he is neither a
judicial officer nor an attorney and that “[w]hatever the issue is, it does not involve him.”
Knox also requests that this Court impose sanctions under M. R. App. P. 32, possibly in
the form of an award of his attorney fees in this action, both in the District Court and
here, for defending this meritless action.
¶7 Hritsco argues that Roselle’s brief fails to comply with the Montana Rules of
Appellate Procedure, and consequently, his appeal should be dismissed. Alternatively,
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Hritsco argues that the District Court correctly granted summary judgment in favor of
himself and Knox, and this judgment should be affirmed. Hritsco claims that “[t]his
appeal, like Mr. Roselle’s five (5) previous trips to this Court, is frivolous. Rather than
seeking sanction and fees under Mont. R. App. P. 32, however, the Hritsco Defendants
simply want this matter resolved.”
¶8 This Court reviews a summary judgment ruling by applying the same evaluation
that the district court utilizes under M. R. Civ. P. 56. Bruner v. Yellowstone County, 272
Mont. 261, 264, 900 P.2d 901, 903 (1995). A party is entitled to summary judgment if it
establishes that there are no genuine issues of material fact and that it is entitled to
judgment as a matter of law. M. R. Civ. P. 56(c); Miller v. Herbert, 272 Mont. 132, 137,
900 P.2d 273, 276 (1995). The moving party has the initial burden of showing that no
genuine issues of material fact exist. Bruner, 272 Mont. at 264, 900 P.2d at 903. Once
the moving party satisfies this initial burden, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine issue of material
fact does exist. Bruner, 272 Mont. at 264, 900 P.2d at 903.
¶9 As a general rule, this Court will not impose sanctions pursuant to M. R. App. P.
32 unless the appeal is entirely unfounded and intended to cause delay or unless counsel’s
actions otherwise constitute an abuse of the judicial system. Collins v. Collins, 2004 MT
365, ¶ 34, 324 Mont. 500, ¶ 34, 104 P.3d 1059, ¶ 34. In this case, we determine Roselle’s
appeal is without merit and has caused unnecessary delay. We therefore grant Knox’s
request for attorney fees in defending this appeal. Although Knox also requested
sanctions for defense of this action from its inception, sanctions were not requested or
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granted in the District Court. Pursuant to M. R. App. P. 32, we award sanctions to Knox
for the appeal only and remand to the District Court for a determination of a reasonable
amount of such fees and costs to be awarded to Knox.
¶10 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶11 The District Court’s judgment is affirmed as to all parties and this case is
remanded for further proceedings consistent with this opinion.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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