November 10 2009
DA 08-0441
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 382N
GREGORY FOSTER,
Plaintiff and Appellant,
v.
MARGUERITE BOYD HERNANDEZ
and RAUL HERNANDEZ,
Defendants and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 08-0135
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gregory Foster, self-represented litigant; Richmond, California
For Appellees:
Terry L. Seiffert, Attorney at Law, Billings, Montana
Submitted on Briefs: October 14, 2009
Decided: November 10, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 2006, 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 its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Gregory Foster (Foster) appeals from orders of the Thirteenth Judicial District
Court, Yellowstone County, granting summary judgment and awarding Rule 11 sanctions
to Marguerite Boyd Hernandez and Raul Hernandez (Hernandez). We affirm.
¶3 This appeal originated from a probate administered by Hernandez as personal
representative to the estate of Benjamin Boyd, Sr. In order to settle pending estate claims
related to travel expenses Foster incurred completing a DNA test, Foster and Hernandez
signed a stipulation awarding Foster $1000, a prorated bond premium, and payment of
real estate taxes on property he received from the estate. The stipulation specifically
provided that “Foster will raise no further objections or further claims relating to the
above referenced estate or against the Personal Representative.” However, Foster filed
this civil action against Hernandez on January 25, 2008, alleging fraudulent selling of
real property, breach of fiduciary duty, and lack of notice. Hernandez moved for
summary judgment on April 21, 2008. Although the District Court specifically requested
a proper mailing address from Foster at the scheduling conference, Foster did not respond
to the motion for summary judgment, nor appear at the hearing. The court granted
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summary judgment to Hernandez on May 20, 2008. Hernandez then moved for Rule 11
sanctions on May 27, 2008. Foster moved to set aside the summary judgment on June 9,
2008, claiming he was not notified of the summary judgment hearing. The court granted
Hernandez’s motion for sanctions, denied Foster’s motion to set aside the summary
judgment, and further sanctioned Foster for his motion. Foster failed to appear at either
hearing on sanctions. Foster now appeals.
¶4 Foster raises a number of issues on appeal that were never presented to the District
Court. This Court will not address issues raised for the first time on appeal. State v.
Wetzel, 2005 MT 154, ¶ 13, 327 Mont. 413, 114 P.3d 269. The only issues properly
before the Court in this appeal relate to the grant of summary judgment and imposition of
sanctions.
¶5 Foster claims that he was not notified of the summary judgment hearing, yet
Hernandez’s summary judgment motion certifies that a copy was sent to Foster’s Billings
address. This is the same address that Foster used in his complaint and confirmed was
correct at the scheduling conference. This Court has determined that service is complete
upon mailing, pursuant to M. R. Civ. P. 5(b). In re Marriage of Weber, 2004 MT 206,
¶ 17, 322 Mont. 324, 95 P.3d 694. Thus, service was complete here.
¶6 M. R. Civ. P. 11 provides that the signing of a pleading or motion certifies that 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.” The rule further provides that the court shall impose
sanctions on a violating party, which may include an order to pay reasonable attorney
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fees incurred because of the pleading or motion. M. R. Civ. P. 11. Foster signed a
stipulation providing that he would “raise no further objections or further claims” against
the estate. Nonetheless, Foster initiated this action, which is neither “well grounded in
fact,” nor “warranted by existing law.” The sanctions awarded by the District Court
amount to the reasonable attorney fees incurred in defense of Foster’s frivolous claim.
The District Court did not abuse its discretion in awarding sanctions.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that the
appeal is without merit because the issues are clearly controlled by settled Montana law;
the issues are factual and there clearly is sufficient evidence to support the findings of
fact below; and the issues are ones of judicial discretion and there clearly was not an
abuse of discretion.
¶8 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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