$10. 84-402
I N THE SUPRCLPE COURT O F THE STATE O F MOXTANA
1984
RICHARD C . LUSSY,
P l a i n t i f f and A p p e l l a n t ,
FRANK BENNETT, DONALD CLARK,
JOHN STEVENS and THE F I R S T
SECURITY BANK OF ANACONDA,
F I R S T FEDERAL SAVINGS O F
GREAT F A L L S , F I R S T MONTANA
T I T L E INSURANCE, and SUlJlMIT
VALLEY T I T L E COMPANY, T I C O R
TITLE
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of D e e r L o d g e ,
T h e H o n o r a b l e R o b e r t B o y d , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
R i c h a r d C. L u s s y , p r o s e , S e a t t l e , Washington
F o r Respondents:
K n i g h t , M c L e a n , D a h o o d & E v e r e t t ; D a v i d M. M c L e a n ,
Anaconda, Montana (Bennett, C l a r k , Stevens, F i r s t s e c u r i t y )
J a m e s , G r a y & M c C a f f e r t y ; L a r r y E. Johnson, G r e a t
F a l l s , M o n t a n a ( F i r s t F e d . Savings & L o a n )
Ernmons & C o d e r ; R o b e r t J . E r n m o n s , G r e a t F a l l s ,
14ontana ( F i r s t Mont. T i t l e Ins. )
J a m e s R o b i s c h o n , (Summit V a l l e y T i t l e ) , B u t t e , Montana
S u b m i t t e d on B r i e f s : Nov. 29, 1984
Decided: December 28, 1984
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Richard C. Lussy appeals from an order of the District
Court, Third Judicial District, Deer Lodge County, granting
summary judgment to the respondents. He further appeals from
an order of the District Court refusing to allow hin to file
an amended complaint so as to he allowed attorney fees as a
wro se litigant.
L -
On October 25, 1984, this Court issued. a restraining
order in cause no. 84-407 of this Court enjoining the
appellant from proceeding pro - in any Montana court without
se
requesting a leave to file or proceed, and staying all
pending actions brought by him pro -
se. In prosecuting this
appeal, the appellant is acting pro -
se. We have lifted the
restraining order with respect to this appeal in order to
provide due process to all parties before the court in this
case.
Lussy filed a complaint. in District Cou.rt seeking to
remove a "trespassing house" which protruded onto land to
which he then held title. As to this cause of action the
District Court granted summary judgment in favor of the
respondents, dismissing the complaint with prejudice an.d
awarding to the respondents attorney fees. The District
Court denied Lussy's motion for summary judgment on his
behalf. It also refused to allow Richard Lussy to file an
amended complaint so as to claim attorney fees as a pro -
se
litigant. Lussy appeals the judgment and order.
On August 12, 1974, Henry P. and Dyane Lussy, the
brother and sister-in-law of Richard, acquired title to a
p a r c e l o f l a n d i n Anaconda, t o which w e w i l l r e f e r a s P a r c e l
A. Henry began c o n s t r u c t i o n o f a home on P a r c e l A .
On J a n u a r y 27, 1977, Henry P. L u s s y p r o c u r e d a s u r v e y o f
P a r c e l A which showed t h a t t h e home e r e c t e d by him p r o t r u d e d
by n e a r l y h a l f o n t o t h e a d j a c e n t l a n d t o which w e w i l l r e f e r
as Parcel E. To remedy the situation, Henry P. Lussy
o b t a i n e d a deed from t h e owner, Anaconda Company, on August
1 2 , 1977, a n d r e c o r d e d it on March 1 0 , 1978. A s of t h e d a t e
of t h e Anaconda Company d e e d , Henry P. a n d h i s w i f e Dyane
owned all of Parcels A and B and the residence situated
thereon.
On March 1 0 , 1978 Henry P. and Dyane L u s s y e x e c u t e d a
T r u s t Deed t o t h e F i r s t F e d e r a l S a v i n g s and Loan A s s o c i a t i o n
of Great F a l l s f o r Parcel A only. The T r u s t Deed dict n o t
include t h e description f o r Parcel B, e v e n t h o u g h Henry P.
a n d Dyane owned b o t h P a r c e l s A a n d B a t t h e t i m e a n d Henry
knew t h a t t h e home was l o c a t e d b o t h on P a r c e l A and P a r c e l B .
On J u n e 8 , 1 9 ? 9 , Henry P . and h i s w i f e e x e c u t e d a T r u s t
Deed t o F i r s t S e c u r i t y Bank o f Anaconda a s t h e b e n e f i c i a r y .
T h i s i n d e n t u r e incl-uded P a r c e l s A a n d B t o s e c u r e a n o t e o f
$11,704. The p r o c e e d s of t h e n o t e w e r e u s e d t o e n l a r g e t h e
home l o c a t e d on P a r c e l s A a n d B.
On August 20, 1 9 8 2 , F i r s t F e d e r a l ' s T r u s t I n d e n t u r e was
foreclosed on Parcel A. This had the legal effect of
e l i m i n a t i n g a n y s e c u r i t y i n t e r e s t o f F i r s t S e c u r i t y Rank i n
P a r c e l A f o r i t s l o a n o f J u n e 8 , 1979. F i r s t S e c u r i t y Bank
s t i l l had i t s s e c u r i t y i n t e r e s t i n P a r c e l B.
On March 16, 1983, First S e c u r i t y Rank assigned its
interest i n t h e June 8, 1979 n o t e and t r u s t d e e d t o F i r s t
Montana. A l l payments on t h e J u n e 8 , 1979 n o t e were b r o u g h t
current by Henry F. I,ussy, the father of Henry P. and
Richard, who made the payments up to August 8, 1983.
Thereafter Richard C. L u s s y made t h e payments on t h e n o t e
beginning September 13, 1983, and continued to keep the
payments on t h e n o t e c u r r e n t t o t h e d a t e o f t h e a c t i o n i n t h e
D i s t r i c t Court.
In April of 1983, Richard C. Lussy, Henry F. L,ussy,
Henry P. L u s s y and Dyane E . Lussy f i l e d a c o m p l a i n t i n Deer
Lodge County D i s t r i c t C o u r t a g a i n s t t h e same p a r t i e s a s t h i s
a c t i o n , b u t a l s o i n c l u d i n g a s a d e f e n d a n t Maurice A. Maffei.
The p a r t i e s w e r e a p p a r e n t l y a c t i n g pro E. D i s t r i c t Judge
Mark S u l l i v a n i n t h a t a c t i o n n o t e d t h a t Henry F. L u s s y would
have been the only party entitled to relief and had
acknowledged h e was a c t i n g on b e h a l f o f Henry P. and p e r h a p s
Dyane L u s s y . The D i s t r i c t C o u r t viewed Henry F . ' s action as
c o n s t i t u t i n g t h e unlawful p r a c t i c e of l a w and d i s m i s s e d t h a t
action.
On September 9, 1983, Henry F. Lussy, acting as
attorney-in-fact for Henry P. and his wife, conveyed by
w a r r a n t y d e e d t o R i c h a r d a l l o f P a r c e l B. The e f f e c t o f t h i s
d e e d was t o g i v e R i c h a r d C . Lussy t h e r e c o r d ownership o f
P a r c e l B and t h e appearance of a r i g h t t o l i t i g a t e r e g a r d i n g
P a r c e l B. On September 9 , 1983, t h e d a t e h e a c q u i r e d P a r c e l
B, R i c h a r d f i l e d a c o m p l a i n t a g a i n s t t h e same d e f e n d a n t s i n
Deer Lodge Cou-nty. T h e r e h e s o u g h t damages o f $8,885,000.
T h a t c o m p l a i n t was d i s m i s s e d by R i c h a r d on O c t o b e r 11, 1.983.
On O c t o b e r 14, 1983, Richard Lussy filed the present
action. The compl-aint s e e k s t h e removal o f t h e h o u s e from
Parcel B. In the discovery proceedings Richard testified
t h a t i n t a k i n g t i t l e t o P a r c e l B and i n b r i n g i n g t h e a c t i o n
he intended eventually to divide any money settlement
resultin9 therefrom among the family members 011 an agreed
division of any damages recovered.
Since the note indebtedness with respect to Parcel B was
kept current to the time of the action in the District Court,
First Montana, as the assignee of the trust indenture from
First Security, has not threatened or corrmenced foreclosing
the debt against Richard or Henry P. Lussy.
Richard Lussy filed for summary judgment on his behalf,
and all the remaining respondents filed for summary judgment
in their hehalves. The District Court denied Lussyfs motion
for summary judgment, and granted summary judgments to a.11 of
the respondents. Lussy also moved to amend the complaint by
adding attorney fees for pro - litigants.
se After briefing,
the District Court denied this motion of Lussy's also. This
appeal ensued.
On appeal, Lussy frames the issues as follows:
"(1) The trial court below has so far departed
from the accepted and usual course of judicial
proceedings, as to call for the exercise of
revisory jurisdiction by the Montana Supreme court:
"(A) reversal of the trial courts 3/23/84 ORDER
DENYING MOTION FOR SUPMARY JUDGIUIENT AGAINST ALL
DEFENDANTS BY THE PLAINTIFF RICHARD C. LUSSY ...
'found to be frivolous and champerous in nature and
against public policy and will not be enforced by
this court.'
" ( 2 ) The attorney plaintiff/appellant pro se takes
the unusual challenge of striking drwn as
unconstitutional Section 37-61-215, MCA:
"It shall be unlawful for any court within this
state to allow attorneys' fees in an action or
proceeding before said court in which attorneys'
- - allowed l?y - to either party to such
fees are law
action or proceedinq --party is represented
when such
l?y anyone other - - a duly admitt-eTor licensed
than
at law. (Emphasis added. ) "
attorney --
Simply stated the i.ssu.es appeal presented by the pro
on
- litigant, are:
se
(1) did the District Court err in denying summary
judgment to Richard Lussy; and
(2) is section 37-61-215, MCA, providing no attorney
fees to persons other than attorneys, unconstitutional.
It will be observed that the issues framed by Richard
Lussy do not question the summary judgments granted to the
respondents. His issues do not question the award of
attorney fees to First Montana or the other respondents.
Tnstead, Richard Lussy argues the denial of his motion for
summary judgment and attacks section 37-61-215, MCA, as being
unconstitutional.
The District Court denied Lussy's motion for summary
iudgment because the court found his complaint to be
frivolous and champertous in nature and against public
policy. The District Court was correct. By his own
statement, Richard Lussy acauired title to Parcel R for the
purpose of bringing this action, and dividing the proceeds
among the remaining members of his family. Under section
37-61-408, MCA, an attorney is prohibited from acquiring a
claim or demand for purpose of bringing action. It is
illegal under the statute to give or to promise to give a
valuable consideration to any person as sr, inducement to
place in the hands of the promisor a demand of any kind for
the purpose of bringing an action thereon. Under section
37-61-411, MCA, the same rule applies when a party prosecutes
in person an action instead of acting through an attorney.
Lussy's complaints smacks of champerty, and public policy
reauires dismissal of his action.
Although the issue is not directly raised by Richard
Lussy, we also determine that the summary judgments granted
in favor of the defendants in this case by the District Court
were correct. Defendants Frank Bennett, Dona1.d Clark, John
Stephens, and The First Security Bank of Anaconda have no
interest in either parcel of land in dispute and therefore
Lussy's action for trespass could not be naj-ntained against
them. First Montana Title Insurance is First Security Rank's
assignee of the trust indenture of Parcel B, the land
allegedly encroached upon. In his deposition Lussy stated
that this defendant had no involvement with the alleged
trespass. Summit Val-ley Title Company's involvement in the
suit arises from being a trustee of both trust indentures.
The first indenture was extinguished by foreclosure. The
second indenture on Parcel R continues. Summit Valley owes
Richard Lussy a duty as trustee under the indenture, but that
is its only connection to the property. Summit Valley has no
connection with the alleged trespass.
First Federal Savings and Loan Association and Ticor
Title are involved. Those respondents are the only parties
named in the suit that conceivably could be liable in
trespass. However the District Court was correct in ordering
award of summary judgment in their favor also.
In Harris v. Issac 11940), 111 Mont. 152, 158, 107 P.2d
137, 141, this Court stated that a cause of action in
trespass does not accrue unless the injury complained of i-s
shown to be the direct and proximate result of the
defendants ' wrongful- or negligent acts or defaults. The
record reveals no such evidence and it was the obligation of
Lussy, as the party defending summary judgment, to establish
a genuine issue of material fact with respect to defendants
in order to prevent summary judgment.
With respect to the second issue, the purported
unconstitutionality of section 37-61-215, MCA, Richard Lussy
has no standing to question its validity in any event. He is
not a prevailin? party in the action below. The general rule
is in the ~hsenceof statute or contract, attorney fees will
not be awarded. Joseph Russell Realty Co. v. Kenneally
(1980), 185 Mont. 496, 505, 605 P.2d 1107, 1-112. On a
reciprocal basis, if the respondents were entitled to
attorney fees in this case by virtue of contract, Lussy would
be entitled to attorney fees on a reciprocal basis under
section 28-3-704, MCA. However to bring himself within the
latter section, he must again be the prevailing party.
J-,ussy purports to bring himself within the statute
allowing attorney fees, on the basis that he was the
attorney-in-fact for the members of his family. Of course he
is confusing an attorney authorized to practice law with a
.
person clothed with the powers of an agent. He further
claims that by proceeding pro - he is in truth an attorney,
set
and as such is entitled to attorney fees. It may be said
that such an argument is frivolous.
Richard Lussy has manufactured in his arguments, an
amorphous theory of recovery called "Justinhoard." He
apparently means to say that judges and lawyers hoard justice
or the means of obtainins justice to themselves forming what
he calls a "cesspool of corruption." Jurisprudentially, he
is plowing new ground, but we see little prospect of a crop.
Richard C. Lussy, by his various pro - actions, has
se
caused the courts of Montana some considerable difficulty.
Fe has sued judges, attorneys and others left and right,
l
charging conspiracies, ahuse of "Justinhoard," and expounding
like theories of law. While his misdirected efforts have
caused the courts difficulty, the real tragedy is that he has
cost himself a considerable amount of money and wasted time
i n h i s vain pursuits. However much w e d e s i r e t o k e e p t h e
c o u r t s open t o a l l p e r s o n s s e e k i n g t o a d j u s t t h e i r r i g h t s ,
d u t i e s a n d r e s p o n s i b i l i t i e s , w e must a l s o t a k e i n t o a c c o u n t
t h e e f f e c t t h a t h i s a c t i o n s b r i n g on o t h e r p a r t i e s t o h i s
suits. I n t h i s case, t h e respondents a r e e n t i t l e d t o t h e i r
peace. I t is f o r t h a t reason we l i f t e d t h e r e s t r a i n i n g o r d e r
heretofore entered against Mr. Lussy, to bring this
p a r t i c u l a r case t o a conclusion.
J u d g m e n t s and o r d e r o f t h e D i s t r i c t C o u r t a r e a f f i r m e d .
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"yk L.c2,5 L-LL,,
Justice
I
W e Concur: