No. 82-58
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
RON JOHNSON and MARILEE JOHNSON,
plaintiffs and Respondents,
VS.
DANIEL S. MURRAY,
Defendant and Appellant.
Appeal from: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt
Honorable M. James Sorte, Judge presiding.
Counsel of Record:
For Appellant:
George T. Radovich argued, Billings, Montana
For Respondents:
McDonough, Cox and Simonton, Glendive, Montana
Richard Simonton argued, Glendive, Montana
Submitted: September 13, 1982
~ecided: December 21, 1982
Filed: !JEg::;a Ai(.Jsr
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Daniel S. Murray appeals from a judgment by default
entered against him in the Fifteenth Judicial District
Court, Roosevelt County, awarding general damages of $100,000,
punitive damages of $100,000, attorney fees of $1,500 and
costs in favor of the plaintiffs Ron and Marilee Johnson.
We affirm.
Murray raises two issues: (1) that he was deprived of
due process in the entry of his default and the granting of
the default judgment, and (2) that the damages awarded are
excessive.
On September 3, 1980, highway patrolman Duane Bratland,
an officer under the supervision of plaintiff Ron Johnson,
issued a daytime speeding ticket to Murray in Dawson County.
The maximum fine for the speeding charge was $5.
On September 30, 1980, Murray responded to the ticket
by filing in the Justice Court a document entitled "Counter-
claim". In it he accused Ron Johnson, Marilee Johnson and
others of "intimidation of private citizens, compounding a
felony, attempting to take money under false pretenses,
using unauthorized police powers, operating a radio transmitter
without a FCC license, failure to display FCC license,
vexing and harassing." He demanded damages from the defendant
of $1,050,007, plus court costs and attorney fees at $100
per hour. The justice of the peace dismissed Murray's
counterclaim for lack of jurisdiction.
About the time of the dismissal in Justice Court,
Murray filed with the clerk and recorder of Roosevelt County,
where the Johnsons resided, documents entitled "Notice and
Demand," and "Memorandum of Law" which purported to be
liens upon the Johnsons' real property. At about the same
time, Murray approached local banks with another "Notice and
Demand" entitled "Claim of Common Law Writ of Attachment
with Memorandum of Law" and attempted to attach or detain
the Johnsons' checking and savings accounts along with any
of their stocks, bonds and safe deposit boxes.
On December 2, 1980, Johnsons' attorney wrote to Murray,
demanding that the purported liens be removed within ten
days or suit would be filed. Murray responded to this
letter with a "Declaration of Notice and Demand" which
essentially repeated and demanded compliance with the purported
liens.
On May 27, 1981, Johnsons brought this action against
Murray, asking for damages for slander of title, defamation,
violation of their rights to privacy and their right to own
property. The Johnsons requested general damages, punitive
damages, costs and attorney fees.
Summons was served on Murray in Yellowstone County on
June 3, 1981.
On June 24, 1981, the clerk of the District Court in
Roosevelt County received in the mail from Murray an instrument
entitled "Answer to Complaint, Special Appearance, Offer to
Release Liens." Murray, however, did not submit the necessary
$10 filing fee. On the date of receipt, the clerk of the
District Court mailed to Murray a bill for the $10 filing
fee, meanwhile holding the "Answer" without filing the same.
Murray had served his answer upon the Johnsons, hut not upon their
attorney.
On August 28, 1981, the attorneys for the Johnsons
filed with the clerk of the District Court their written
request for the entry of Murray's default for his failure to
plead or otherwise defend as provided by law.
On September 1, 1981, the attorneys for the Johnsons
served written notice of application for default judgment
upon Murray, and filed the original with the clerk of the
court, that on SePke- 29,1981, at 11:OO a.m., in the Roosevelt
County courthouse, the plaintiffs would present testimony
regarding the extent of their damages in the matter, because
of Murray's default.
On September 11, 1981, Murray sent the $10 filing fee
to the clerk of the District Court, who thereupon filed the
"Answer" in the court file.
On September 16, 1981, Richard A. Simonton, as attorney
for the Johnsons, filed an affidavit for entry of default to
the effect that the defendant had been served on June 3,
1981, that the time for the entry of his answer had expired,
and that he had not answered or otherwise moved for extension
of time to answer. On September 16, 1981, the default of
Murray was entered in the case.
On September 28, 1981, the day before the time scheduled
for the hearing on the entry of judgment by default, Murray
filed in the District Court an instrument entitled "Notices;
Special Appearance; Display of Bad Faith; Request for Voluntary
Dismissal; Demand for Jury Trial."
On September 29, 1981, Murray did not appear in person
or by counsel for the hearing on the entry of judgment by
default. At 20 minutes past the appointed time for the
hearing, the District Court proceeded to take testimony
from the Johnsons with respect to the amount of damages.
Witnesses included Roger Wimmer, an abstractor from Wolf
Point, Montana, and the plaintiffs Ron Johnson and ldarilee
Johnson. In its findings, the District Court found the
procedures substantially as we have recited them foregoing;
determined that the Johnsons were required to retain counsel
for the purpose of protecting their rights and to remove the
cloud upon the title of their real property created by the
filing of the liens; that such liens did cloud the title to
Johnsons' real property; that the Johnsons were not guilty
of intimidation, compounding a felony, taking money under
false pretenses, using in an unauthorized manner their
police powers, nor had they vexed or harassed Murray; that
they had no personal contact with him, and were not involved
in the issuance of or the enforcement of the citation issued
to him on September 3, 1980; that Marilee Johnson in particular
did nothing to abuse the defendant and had no connection
other than being the subject of his attack by way of liens.
The District Court concluded that the placement and retention
by Nurray of the alleged common law liens against the Johnson
property in Roosevelt County slandered the title and caused
a cloud upon it, reducing its value and saleabili-by;that
the counterclaim was a public document and available for
public inspection and it charged the Johnsons with the
commission of crimes which were false, untrue and damaging
statements, and were libelous per se with regard to the
reputation, business and standing of the Johnsons in the
community; that the liens and writs of attachment by Murray
were intentional attempts to harass, embarrass and intimidate
the Johnsons without statutory or case authority and violated
the Johnsons' right to privacy and to own or possess property
and hindered and obstructed the Johnsons' personal rights; khat the
alleged common law liens were void without recognition in
Montana case law or statutory law and should be stricken
from the record; that the plaintiffs had incurred attorney
fees of $1,500, plus additional costs in prosecuting the
action to remove the liens. On this basis, the court entered
the damages which we have recited earlier.
Following the service of the notice of entry of judgment
against him, Murray moved to set aside the judgment under
Rule 60(b), I4.R.Civ.P. Johnsons resisted the motion on the
ground that he had failed to show facts sufficient to con-
stitute mistake, inadvertence, surprise or excusable neglect,
or that he had a good defense to the complaint. The District
Court on December 30, 1981, denied the motion to set aside
a default judgment and the appeal to this Court ensued.
At all stages of the proceedings in the District Court,
and until this appeal, Murray represented himself, acting
as his own counsel in filing pleadings and documents, and
conducting correspondence with Johnsons' attorney.
WAS THE DEFAULT JUDGMENT AGAINST PIURIiAY PROPER?
Defaults are controlled by Rule 55, M.R.Civ.P. The
pertinent parts of that rule follow:
"Rule 55(a). Entry. When a party against whom
a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided
by these rules and that fact is made to appear
by affidavit or otherwise, the clerk shall enter
his default.
"Rule 55 (b). Judgment. Judgment by default may
be entered as follows:
"(2) Ey the court. In all other cases the party
entitled to a judgment by default shall apply to
the court therefore; . . . If the party against
whon. judgment by default is sought has appeared
in the action, he . . .
shall be served with
written notice of the application for judgment
at least 3 days prior to the hearing on such
application. If . . . it is necessary to
take an account or to determine the amount of
damages . . . the court may conduct such hearings
. .. as it deems necessary and proper and shall
accord a right of trial by fury to the parties
when and as required by any statute in the state
of Montana.
"Rule 55(c), Default--settins aside--extension of
time & court or stipulation of parties. For good
cause shown the court may setYsi.de an entry of
default and, if a judgment by default has been
entered, may likewise set it aside in accordance
with Rule 60(b). No default of any party shall
be entered, and no default judgment shall be entered
against any party, except upon application of the
opposing party . . . In any case if a party in
default shall serve and file his appearance, motion
pleading or proceeding prior to application to the
clerk for default, then such defaulting party shall
not thereafter be considered in default as to that
particular appearance . . ."
Under Rule 55, it is clear that the entry of default
by the clerk and the entry of judgment by the District Court
are two distinctly different acts. Sealey v. Majerus (19671,
149 Mont. 268, 271, 425 P.2d 70. In that case we said:
"Reference to Rule 55(a) clearly points out
the error in defendant&' ccntentions one and
three. Entry of default by the clerk requires
no notice to the party in default. Entry of
default IS NOT a judgment. It is only a step
in the process of securing judgment by default
. . ." 149 Mont. at 271.
In this case, although Murray had forwarded an answer
by mail to the clerk of the District Court, which was received
by the clerk on June 24, 1981, he did not at the same time
tender or pay the $10 filing fee required.
Under section 25-1-201, a clerk of the District Court
is required to collect from each defendant or respondent on
his appearance the sum of $10. The clerk is required to
deposit 40 percent of such fees in the general fund of the
county, and the remaining portion is remitted to the State.
Under section 25-10-403, each party to a civil action is
required to pay the fees fixed by law for the performance of
any service or duty by any officer of the court, and the
officer may not be required to perform such service or duty
until the fees fixed are on demand first paid or tendered.
Under section 7-4-2515, PKA, county officers, including the
clerk of the court must not in any case perform any official
services unless the fees prescribed for such services are
paid in advance. It was proper in this case, therefore, for
the clerk of the District Court to hold the proffered answer
of Murray in suspense and not file the same until the officially
required fee had been tendered or paid.
Because Murray's answer had not been filed within the
time required, after service of the sumrrions conplaint
and
upon him, it was proper for the plaintiffs to request the
entry of his default and to make application therefor on
August 27, 1981. The application for his default was made
prior to the filing of his answer on September 11, 1981.
Under Rule 55(c), quoted above, any party in default must
serve and file his appearance prior to the application to
the clerk for default.
Since application for the entry of default by the clerk
was timely made by the Johnsons, through their attorney, the
District Court clerk was ccrrect in entering the default of
Murray on September 16, 1981, upon receipt of the affidavit
that no answer or appearance had been made as required by
law by Murray at the time of the application for default.
Johnsons gave written notice to Murray that they would
apply to the District Court for judgment by default in
plenty of time and certainly in compliance with Rule 55(b)(2),
8.R.Civ.P. The time for hearing was set for September 29,
1981. Neither Murray nor anyone representing him appeared
at the hearing for the purposes of establishing danages
under Rule 55(b)(2). There was no reason for the District
Court not to proceed to take evidence for the purpose of
determining damages.
On the day before the hearing, September 28, 1981,
Murray had filed his "Notice, Special Appearance." There
is no provision for the filing of any such pleading in the
Rules of Civil Procedure. His purported pleading included a
demand for jury trial. When a party is in default, he has
no statutory or constitutional right to have a jury assess
the damages. Even if the court utilized, in the exercise of
its discretion, a jury to assess the damages, it is n ~ t
because of the protection of the Seventh Amendment, but to
inform the conscience of the court. 5 Moore's Federal
Practice (2d ed. ) , 5 38.19 [3] .
Having determined that the proper procedures were
followed by counsel for the Johnsons and by the District
Court in proceeding and entering default judgment, we now
consider whether the District Court ruled properly in refusing
to set aside the default judgment upGn motion of Murray.
Rule 55 (c), M.R.Civ.P., provides that if a judgment by
default has been entered, it may be set aside in accordance
with Rule 60(b), M.R.Civ.P. Under Rule 60(b), the grounds
set out and relied on by Murray were "mistake, inadvertence,
surprise, or excusable neglect." Murray contends that his
failure to submit the required filing fee was an inadvertent
mistake, and that he had not received from the clerk of the
court the bill for the fee which she mailed on June 11,
1981. He also contended that since he was appearing pro-
- se
that he should be held to much less stringent standards than
applied in cases where attorneys are representing the parties.
In denying the motion of Murray to set aside the default
judgment, the District Court agreed with the Johnsons that
Murray's negligence was not excusable in his failure to pay
the filing fee until 2 1/2 months later and after the request
to enter his default had been submitted; that he had failed
to present a prima facie meritorious defense in the answer and
t h a t t h e e v i d e n c e i n d i c a t e d overwhelmingly t h a t h e had no
d e f e n s e t o t h e a c t i o n s f o r l i b e l and s l a n d e r o f t i t l e .
A l t h o u g h Murray was a c t i n g a s h i s own a t t o r n e y , t h e D i s t r i c t
C o u r t found t h a t h i s r e c k l e s s d i s r e g a r d f o r t h e r i g h t s and
feelings of the plaintiffsand h i s further attempt a t t h a t
s t a g e t o prolong t h e l i t i g a t i o n w e r e adequate reasons t o
deny h i s motion t o s e t a s i d e t h e judgment.
The D i s t r i c t C o u r t r e l i e d on M i h e l i c h v . B u t t e E l e c t r i c
Railway Company ( 1 9 2 9 ) , 85 Mont. 604, 622, 281 P . 540, 547,
wherein t h i s Court s a i d :
"Mere f o r g e t f u l n e s s o r a m i s t a k e s u c h as i n d i c a t e d
i s n o t ground f o r s e t t i n g a s i d e a d e f a u l t . (Citing
cases.) When o n e i s i n d e f a u l t and a p p l i e s t o t h e
c o u r t f o r r e l i e f , h e must b r i n g h i s c a s e w i t h i n
some o n e o f t h e g r o u n d s g i v e n i n [ R u l e 60(b),
M.R.Civ.P.1 b u t e v e n t h e n r e l i e f i s g r a n t e d o n l y
a s a m a t t e r o f g r a c e and c a n n o t b e demanded a s
a matter o f r i g h t ; i n o t h e r words, t h e s t a t u t e
r e f e r s t h e m a t t e r t o t h e sound l e g a l d i s c r e t i o n o f
t h e t r i a l c o u r t and i t s r u l i n g w i l l b e i n t e r f e r e d
w i t h o n l y when a showing o f m a n i f e s t a b u s e of
t h a t d i s c r e t i o n i s made."
I n t h e circumstances here w e f i n d t h a t t h e District Court
d i d n o t abuse i t s d i s c r e t i o n i n r e f u s i n g t o set a s i d e t h e
d e f a u l t judgment a g a i n s t Murray.
A s a f u r t h e r ground f o r r e f u s i n g t o s e t a s i d e t h e d e f a u l t
judgment, t h e D i s t r i c t C o u r t n o t e d t h a t Murray, a l t h o u g h n o t i f i e d ,
c h o s e n o t t o a p p e a r a t t h e h e a r i n g f o r t h e e n t r y o f judgment
by d e f a u l t , t h e r e t o o f f e r any m i t i g a t i n g e v i d e n c e he may h a v e
had w i t h r e s p e c t t o damages.
I S THE EVIDENCE SUFFICIENT TO SUSTAIN THE VERDICT?
Insufficiency of t h e evidence t o j u s t i f y t h e v e r d i c t o r
o t h e r d e c i s i o n i s o r d i n a r i l y a ground f o r a motion f o r a new
t r i a l i n t h e D i s t r i c t Court. S e c t i o n 25-11-102, MCA. blurray
made no m o t i o n f o r a new t r i a l i n t h e D i s t r i c t C o u r t and
p e r h a p s u n d e r t h e p o s t u r e o f t h e p l e a d i n g s h e r e he c o u l d n o t
have done so. In any event, denial of a motion for a new
trial is not an appealable order (Rule 1, M.R.App.Civ.P.).
When a case comes before this Court where a motion for a new
trial has not been made, this Court will review the evidence
to determine whether there is any substantial evidence to
justify the verdict. Harrington v. H. D. Lee Mercantile
Company (1934), 97 Mont. 40, 55, 33 P.2d 553.
A judgment for damages must be supported by substantial
evidence. Bjerum v. Wieber (1967), 149 Mont. 375, 427 P.2d
62. The damages awarded must be reasonable. Section 27-1-
302, MCA. When there is strong evidence of the fact of
damage, defendant should not escape liability because the
amount of damage cannot be proven with precision. Winsness
v. M. J. Conoco Distributors (Utah 1979), 593 P.2d 1303.
The law does not require that any witness should have expressed
an opinion as to the amount of damages that would compensate
for humiliation, distress, or embarrassment. The law requires
only that the trier of fact exercise calm and reasonable
judgment, and the amount of award rests of necessity in the
sound discretion of the trier of fact. Bourke v. Butte
Electric and Power Company (1905), 33 Mont. 267, 83 P. 470:
Freddy L. Johnson and Clara Johnson v. United States of
America v. Timothy B. Hay (U.S.D.C. 1981), CV 77-20-GF, 38
St.Rep. 599, 604.
To sustain an award of punitive damages against the
objection that the evidence is insufficient, there must
be substantial evidence in the record of oppression, fraud or
malice, actual or presumed, toward the plaintiff, where the
punitive damage award is given for the sake of example and
by way of punishing the defendant. Section 27-1-221, MCA.
Here Murray, in response to receiving a ticket for a
highway violation, for which the maximum fine was $5, filed
in the Justice Court his "counterclaim" against several
defendants, including the Johnsons, charging intimidation of
private citizens, compounding a felony, attempting to take
money under false pretenses, using unauthorized police
powers, operating a radio transmitter without an FCC license
and failure to display an FCC license. This purported
counterclaim was for the sum of $1,050,007, plus court costs
and attorneys at $100 per hour.
When his counterclaim was dismissed, he then prepared
and filed a "notice and demand" purporting to be a common
law lien on the personal property, crops, machinery, cars,
trucks, household goods, wills, estates, equity liens and
trusts of the respondents. He filed a "notice and demand"
containing a memorandum of law, in which he gave notice that
he intended to secure money darriages and exercise his civil
and constitutional rights against the Johnsons, and that he
would claim a lien upon the real property in Wolf Point,
owned by the Johnsons. Here again, the demand was for
$1,050,007. He then gave notice to "all banks in the State
of Montana" and delivered to several banks, a "notice
and demand" purporting to be a claim of common law writ,
asserting a lien upon the checking accounts, savings accounts,
stocks, bonds, and safe deposit boxes of the Johnsons,
attaching the same "instantor" and requiring the banks to
hold such items as security not to release the same until
his action was settled in a court of competent jurisdiction
"under the common law. " On December 8, he delivered to the
attorneys for the Johnsons a declaration of notice and
d e ~ a n dinforming the attorneys that he had "liened" the
property, bank accounts and hand signatures of the Johnsons
as a claim for the violation of his "unalienable rights"
which liens he said shall remain in force for 100 years and
would only be removed by hin: when damages had been paid or a
settlement to his satisfaction reached. He claimed "your
property cannot be sold, your bank accounts cannot be touched,
and your hand signatures, marks and brands, trademark, may
not be lawfully affixed or used by yourselves, agents,
attorneys, commissioners or executors until the release of
each lien by nyself."
At the hearing for damages, a licensed abstractor
testified that the imposition of the purported lien cast a cloud
on the title of the real property of the Johnsons which
would require at least the expense of removing the same and
that the market value of the Johnson property was thereby
reduced. Both the Johnsons testified to the humiliation,
embarrassment, distress and ridicule each felt as they went
to the banks to explain that the lien should have no effect
against them and their property, and the necessity they felt
to explain to their neighbors and fellow residents in their
county that the purported counterclaims against them had no
basis in law or in fact.
The District Court was particularly impressed with the
attack on Marilee Johnson, the wife of Ron Johnson, who
could have had no connection with the issuance of the speeding
charge against Murray and whose inclusion as an object of
Murray's lien campaign seemed.particularly vengeful and
improper.
Although opportunity was given to Murray to disniss and
discharge the purported lien claims in exchange for a dismissal
of t h e Johnsons s u i t a g a i n s t him, he d e c l i n e d t h a t o f f e r .
I n h i s " s p e c i a l a p p e a r a n c e " f i l e d t h e day b e f o r e t h e
dan-iage h e a r i n g , on September 28, 1981, he i n s i s t e d t h a t
Johnson s h c u l d " n e g o t i a t e " w i t h him t o release t h e l i e n s ,
and r e p e a t e d h i s o f f e r t o release t h e l i e n s s t a t e d i n h i s
earlier, late f i l ~ d
answer; t h a t he would be " w i l l i n g t o
discuss with Mr. Johnson a r e l e a s e o f t h e l i e n s i f he would
choose t o n e g o t i a t e p r i v a t e l y w i t h t h e d e f e n d a n t . "
Murray c l a i m s he d i d n o t r e c e i v e a b i l l from t h e c l e r k
of t h e c o u r t f o r t h e f i l i n g f e e , m a i l e d t o him on o r a b o u t
June 2 4 , 1981. H i s d e n i a l , however, i s r e f u t e d by t h e
l e t t e r from t h e c l e r k o f t h e c o u r t m a i l e d t o Murray i n which
t h e c l e r k s t a t e d t h a t a b i l l had i n f a c t been m a i l e d t o him
on t h a t d a t e and t h a t s h e had no r e s p o n s e from him t o t h e
bill.
I t i s c l e a r from t h e r e c o r d , t h e r e f o r e , t h a t Murray h a s ,
w i t h o u t c a u s e o r j u s t i f i c a t i o n , a f f e c t e d t h e market v a l u e o f
t h e Johnsons r e a l p r o p e r t y , i n t e r f e r e d w i t h t h e i r u s e o f
t h e i r p r i v a t e p r o p e r t y , f a l s e l y c h a r g e d them w i t h t h e commission
of c r i m e s , and p u r p o s e l y s u b j e c t e d t h e Johnsons t o embarrassment,
d i s t r e s s , h u m i l i a t i o n and r i d i c u l e . He d i s r e g a r d e d t h e b i l l
o f t h e c o u n t y c l e r k f o r t h e f i l i n g o f h i s answer u n t i l
d e f a u l t had been a p p l i e d f o r a g a i n s t him. H e ignored a
n o t i c e t h a t a h e a r i n g f o r damages a g a i n s t him would be h e l d
and f a i l e d t o a p p e a r a t t h e h e a r i n g . He had shown u t t e r
d i s r e g a r d f o r t h e r i g h t s and p r i v a c y of t h e J o h n s o n s , and
u t t e r d i s d a i n f o r t h e proceedings i n t h e c o u r t s . H i s documents
and a c t i o n s a g a i n s t t h e Johnsons e v i n c e m a l i c e , b o t h a c t u a l
and presumed, and s u s t a i n t h e award o f p u n i t i v e damages
a g a i n s t him. W c a n n o t f i n d t h a t t h e D i s t r i c t C o u r t , i n awarding
e
g e n e r a l damages, a c t e d u n r e a s o n a b l y , and w i t h o u t t h e e x e r c i s e
of common deliberate judgment, nor that the general damages
in the circumstances are unreasonable. There is sufficient
evidence in the record to sustain the awards of damages,
both general and punitive, and the attorneys fees and costs.
It seems pertinent for us to comment especially on the
language of the statute, section 27-1-221, MCA, allowing the
award of exemplary damages "for the sake of example." While
we feel that the defendant was misguided (by what or by whom
we cannot know) in his interpretation of the law and the
role of the courts, he aggravated that misguidance by deliberate,
unprincipled actions which no society governed by law and
not by men could tolerate. We have had other examples in
recent years of persons asserting dark and ominous common
law rights superseding our constitutions and our statutes.
The attorney general of this state has been called upon to
issue an opinion that nonstatutory "common law liens" filed
against public officers on the mere whims of the claimed
lienors are invalid, and to instruct county clerks and
recorders not to accept the same for filing. There is a need
for example against this kind of lien claims.
Affirmance of the exemplary damages in this case may
well alert those inclined to follow the example of Daniel
Murray--they may well be traveling a rocky road.
Affirmed.
1 Justice
W e Concur:
C h i e f {uscice \
Justices
Mr. Frank B. Morrison, Jr., dissenting:
I respectfully dissent.
I concur in that portion of the majority opinion which
affirms the cause of action and the award of punitive damages.
There is substantial credible evidence from which the trial
court could have found malice and upon which the trial court
could have made an award of $100,000 in punitive damages by
way of example.
I dissent from the majority in affirming the award of
$100,000 in compensatory damage. In my opinion the record
does not show actual damages which could conceivably support
the compensatory award made by the trial court.
The record of the default proceedings held in the trial
court shows the following testimony bearing upon compensatory
damages.
ROGER WIMMER, ABSTRACTOR
"Q. Now do you have an opinion, in your capacity
as an abstractor, as to whether or not such a lien
would be a cloud on the title to the Johnson
property?
"A. Yes I do.
"Q. And what is your opinion?
"A. In my opinion it would definitely put a cloud
on the title.
"THE COURT: And to a prospective purchaser that
would appear to be a big question mark, wouldn't
it?
"A. Yes."
RON JOHNSON, PLAINTIFF
"Q. Now these liens that have been filed by Mr.
Murray, how has that affected you?
"A. I was very angry to begin with, and I am
still a little put out about it, and I think a lot
of people knew about it long before I did, that
these liens had been filed, and there has been a
lot of ribbing about it, and people still kind of
look at you with such a jaundice eye and 'Well if
you are so innocent, what are you doing in Court?'
or 'Why did this guy file this lien on you?', and
I think the biggest problem is the drawn out
explanation that has to take place in order to
hopefully satisfy your friends that you really
haven't done anything wrong."
MARILEE JOHNSON, PLAINTIFF
"Q. Mrs. Johnson, how has this matter affected
you?.
"A. I think it has been very embarrassing.
"Q. In what ways?
"A. Well, sometimes my husband talks about
finding another job and -- or maybe transfer-
ring and if we were to move, we would have
problems trying to sell our property for one
thing and the idea of somebody controlling your
bank account is very upsetting, and it would
be very hard for us to manage things that way;
I think the whole thing is terrible and I have
been very annoyed when I heard that a lien was
put on our property of that kind, because I
didn't know that anyone could do that."
This is the extent of the testimony bearing upon damages
to the plaintiffs. The majority opinion states:
"At the hearing for damages, a licensed
abstractor testified that the imposition
of the purported lien cast a cloud on the
title of the real property of the Johnsons
which would require at least the expense
of removing the same and that the market
value of the Johnson property was thereby
reduced. "
I find no support in the record to show a diminution in
the market value of the Johnson property. Furthermore, there
is no evidence that the Johnson property was ever offerred
for sale during the time in question. With the exception of
testimony regarding plaintiff's embarrassment and anger the
only evidence showing loss to the plaintiffs is the time that
plaintiffs personally spent in attempting to secure release
of the liens.
The conduct of the defendant is inflammatory. In my opinion
this conduct led to an award based upon passion and prejudice.
The following statements by plaintiffs' counsel and by the court
are taken from the final remarks which appear in the transcript.
MR. SIMONTON:
" ... I believe we have shown that the title
of their property have been slandered and I
think it would be just to award one million
fifty thousand seven dollars which we have
requested, but I don't know how realistic
that is; I have nothing at this time to show
what his worth is because he didn't appear, but when
you consider that this was certainly done mal-
iciously after we offered to forget the whole
thing in December and the response was that things
had to be done on his terms or not at all, and it
is obvious that this was done maliciously, it has
caused the Plaintiffs a great deal of concern,
anguish, time and embarrassment and to punish this
defendant and others like him, I would like to see
a judgment of at least fifty thousand dollars,
Your Honor.
"THE COURT: Well I think it might be unrealistic;
I think the conduct and all its particulars, that
he slandered the title and liabled and accused
people of crimes that is liable per sae. There is
no question in my mind that he should be punished
in the way of exemplary damages. I think it might
be more realistic to find damages in the amount of
$100,000.00 and punitive damages in the amount of
$100,000.00; . .."
The court further awarded $1500 in attorney's fees.
A fair summary of the above quoted remarks of counsel
for plaintiff show that he sought a total award of $50,000
primarily in the form of punitive damages. The court rejected
request of plaintiff's counsel and awarded $200,000. The
$100,000.00 awarded for punitive damages can be supported as
within the trial court's discretion based upon the extremely
vexatious nature of the defendant's conduct. However, I can
find no evidence in the record to support an award of $100,000.00
in compensatory damage.
Rather than remand this case for a trial on compensatory
damages I would enter a remittitur allowing plaintiff $5,000
in compensatory damages for mental and emotional distress
and affirm the balance.
We concur in the foregoing dissent.
Mr. Justice Daniel J. Shea, dissenting:
I dissent.
First, this Court should set aside the default judqment entered
i this case.
n It has always been the policy of this Court to favor
trial on the merits, and this case is no exception. Second, I agree
with Justice Morrison's dissent to the extent that he shms there
was no basis i the record for the award of coqxmsatory damages in
n
the m u n t of $100,000. However, assuming that the default judgmmt
would not be set aside, I would order a new trial on the question of
compensatory damages. It is not a good practice for this Court to
determine for ourselves what the damages should be. Third, I would
set aside the judgment awarding $100,000 punitive damages, and again
order that the trial be again held to determine the amount.
The record quoted by Justice Morrison reveals several factors
bearing on damages. First counsel for plaintiffs at no time
indicated what he considered an appropriate m u n t to be for
compensatory damages. It is also clear that he believed +he entire
iudcpent should be "at least fifty thousand dollars" which of course
included b t h compensatory damages and punitive damages. I view an
award of damages as based only on passion and prejudice of the trier
of fact when the basis of the total judgment of $200,000 ($100,000
compensatory damages and $200,000 punitive damages is that the court
believed the defendant should be punished. Although the acts of
defendant cannot in any way be condoned, it is clear that the
corrpensatory damages awarded to plaintiffs were awarded because of
the outrageous acts of the defendant rather than the actual damages
sustained by the plaintiffs.
In addition, the trial court awarded $1,500 attorney fees.
Plaintiffs' counsel said he had at least 20 hours on the case and
wanted compensation at the rate of $75 per hour. The court, with no
further adieu, set the attorneys fees at $1,500. Although defendant
has not appealed Cram the attorneys fees award as a separate ground,
nonetheless I find no basis i the law to award an attorney fee i
n n
this kind of action.
What has happened to the defendant here does not speak too
highly of the fair judicial treatment to which he is entitled,
regardless of the outrageous acts he m y have perpetrated on the
plaintiffs. Justice would best be served by setting aside the
default judgment and letting the case proceed on its merits--to a
iury if that is the wish of either of the parties.