Gregory v. Seliski ( 1996 )

No. 95-504
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
ARTHUR A. GREGORY and
DOROTHY R. GREGORY,
Plaintiffs and Respondents,
v.
DON SELISRI,
Defendant and Appellant.
APPEAL FROM: Discrict Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald Seliski, Forsyth, Montana (pro se)
For Respondent:
George W. Huss, Brown & Huss, Miles City, Montana
Submitted on Briefs: June 4, 1996
Decided: September 26, 1 9 9 6
Justice William E. Hunt, Sr. delivered the Opinion cf the Court
Pursuant to Section I..Parsgraph 3 ! c : , Montana Supreme Courrr.
1938 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its resu!t
to Montana Law Week, State Reporter and West Publishing Company.
In February 1995, respondents Arthur and Dorothy Gregory
(Gregorys) instituted proceedings in the Sixteenth Judicial
District C o ~ r t ,Rosebud County, seeking an injunction and damages
for trespass and intentional infliction of emotional distress.
Appellant Don Seliski (Seliski), defendant below, denied the
allegations and counterclaimed, alleging intentional infliction of
emotional distress and seeking injunctive relief against Gregorys.
A jury awarded Gregorys damages for trespass, damages for
in;entionai infliction of emotional distress, and punitive damages.
The District Court awarded a permanent injunction in favor of
Gregorys against Seliski. Seliski appeals pro se.
We affirm.
ISSUE
Seliski raises twenty-nine "issues" on appeal, grouped into
chree separate categories. Seliski's contentions cover nearly
every aspect of this case, and clearly establish his
dissatisfaction with the judgment rendered at the District Court
level. Xowever, most of Seliski's contentions have no legal or
factual basis, are not framed with any degree of specificity, and
generally are not conducive to review by this Court. Therefore, we
conclude thai we can properly consider only one issue:
Was the jury verdict supported by substantial credible
evidence?
FACTS
This case reached the District Court as a result of a birter
dispute between Seliski and Gregorys, next-door neighbors in
Forsyth, Montana. Gregorys, who purchased their property in 1964,
became neighbors with Seliski in 1979 when he purchased an adjacent
lot. Initially, the parties were friendly toward each other, but
the relationship turned sour when Gregorys installed a chain link
fence in 1988 which separated the properties. The fence enclosed
on Gregorys' property a dirt roadway running parallel to the
properties' coinmon border, Seliski had previously used the roadway
at certain times to access the back portion of his property.
The Northern Pacific Railroad initially owned the property
purchased by Gregorys in 1964, and Northern Pacific employees used
the roadway to access a pumping station located at the back of the
property, near a levee overlooking the Yellowstone River. During
Northern Pacific's ownership of the property, some citizens of
Forsyth used the roadway as a fishing access. A Mrs. Hollowell
succeeded in ownership of the property, and she in turn sold the
property to Gregorys in 1964. During the period of her ownership,
Mrs. Hollowell allowed the public to use the roadway to access the
ri.ver.
S e l i s k i ' s mother Helen i n i t i a l l y owned t h e p r o p e r t y p u r c h a s e d
by S e l i s k i i n 1979. Helen s o l d t h e p r o p e r t y t o Howards, who i n
turn sold the property t o S e l i s k i . During t h e p e r i o d of their
ownership, Howards r a r e l y used t h e roadway a t i s s u e i n o r d e r t o
access t h e i r property. A t a l l t i m e s p r i o r t o t h e e r e c t i o n of t h e
fence, S e l i s k i ' s u s e of t h e roadway o v e r G r e g o r y s ' p r o p e r t y was
permissive; i t was n o t u n t i l 1988 t h a t Gregorys were aware t h a t
S e l i s k i c l a i m e d a r i g h t t o u s e t h e roadway.
The e r e c t i o n of the fence instigated a war of words and
r e t a l i a t o r y a c t i o n s between Sel.i,ski and G r e g o r y s , a w a r which,
according to the record, was waged primarily by Seliski: he
frequently called Arthur Gregory a "son of a bitch" and a
" b a s t a r d , " i m p l i e d t h a t h i s dog was s m a r t e r t h a n A r t h u r Gregory,
and r e f e r r e d t o b o t h Gregorys a s "dumb"; he, on one o c c a s i o n ,
p a r k e d h i s c a r i n tkie middle of the s t r e e t , r a n down t h e f e n c e
l i n e , and y e l l e d a t Dorothy Gregory " s t i c k i t up your a s s and fuck
i t ",. he threatened the safety of the Gregorys' dog; and he
f r e q u e n t l y p a r k e d h i s v e h i c l e s i n f r o n t of G r e g o r y s ' p r o p e r t y f o r
p r o l o n g e d p e r i o d s of time, blocking Gregorys' f r e e u s e of their
p r o p e r t y and r e t u r n i n g t h e v e h i c l e s i n f r o n t of G r e g o r y s ' p r o p e r t y
s h o r t l y a f t e r being requested t o move them by law enforcement
officials. I n 1988, b o t h Gregorys were n e a r l y 7 0 y e a r s o l d w h i l e
S e l i s k i was some 2 0 y e a r s younger.
The major b a t t l e i n t h i s war o c c u r r e d i n t h e e a r l y morning
h o u r s o f A p r i l 1 4 , 1992, when S e l i s k i d r o v e one of h i s vehic1.e~
upon Gregorys' property, cut down a s e c t i o n of the chain l i n k
fence, rolled back the fencing, removed a fence post, and drove
oato his own property. Seliski had neither requested nor received
permission from Gregorys to enter their property and remove a
portion of the fence, had not warned Gregorys of his intent to do
so, and had not instituted any legal proceedings to gain access.
Seliski claimed to have entered Gregorys' property under a right of
prescriptive easement. This incident prompted Gregorys to file the
lawsuit which we are reviewing here.
At the outset of the District Court case Seliski was
represented by counsel, but continued his defense pro se after his
lawyer was suspended from the practice of law by this Court.
Seliski participated intermittently in the pretrial process; on
occasion, he failed to meet deadlines or appear at conferences.
Nevertheless, Seliski was able to prepare a comprehensive defense,
indicating to the court and opposing counsel in a proposed pretrial
order dated February 2, 1995, his intention to present 54 witnesses
and 56 exhibits at trial. At the three day trial that began
February 15, 1995, Seliski presented fifteen witnesses, testified
on his own behalf, and cross-examined the Gregorys, plaintiffs'
only witnesses other than Seliski himself.
After hearing the evidence presented, the jury returned a
verdict which awarded Gregorys $280.00 damages for trespass,
$5,000.00 damages for intentional infliction of emotional distress,
and $20,000.00 punitive damages. The court conducted a hearing
regarding the amount of punitive damages, and ordered that the
award be lowered to $15,000. The court also awarded a permanent
injunction in favor of Gregorys against Seliski. Seliski appealed
STANDARD OF REVIEW
Recently, this Court explained the standard of review
applicable to 0.n determination of the sufficiency of evidence to
support a jury verdict:
We will affirm the jury's verdict if there is substantial
credible evidence to support the verdict. This Court's
role is not to agree or disagree with a jury's verdict.
Once we conclude that substantial evidence supports the
verdict, our inquiry is complete. Substantial evidence
has been defined as evidence a reasonable mind might
accept as true and can be based on weak and conflicting
evidence. When we determine whether substantial evidence
supports the jury's verdict, we review the evidence in a
light most favorable to the party who prevailed at trial.
If the evidence at trial conflicts, the jury's role is to
determine the weight and credibility of the evidence.
Cechovic v . Hardin & Associates, Inc. (1995), 273 Mont. 104, 112,
902 P.2d 520, 525 (citations omitted).
DISCUSSION
Was the jury verdict supported by substantial credible
evidence?
In their complaint, Gregorys alleged trespass and intentional
infliction of emotional distress. In his answer, Seliski alleged
that he had a prescriptive.easement over Gregorys' property, and
alleged intentional infliction of emotional distress on the part of
Gregorys .
This Court has adopted the elements of trespass to real
property as provided in the Restatement (Second) of Torts, § 158:
One is subject to liability to another for trespass,
lrrespectlve of whether he thereby causes harm to any
legally protected interest of the other, if he
intentionally (a) enters land in possession of the other,
....
Ducham v . Tuma (1994:, 265 Mont . 436, 440, 877 P.2d 1002, 1005. We
are aware that " icjonduct which otherwise would constitute an
intentional trespass is not unlawful if it is privileged conduct
pursuant to an easement. " , 877 P.2d at 1005. We recently
discussed the elements of a prescriptive easement:
To establish either a public or private easement by
prescription, the party claiming the easement must show
o p e n , notorious, exclusive, adverse, continuous, and
uninterrupted use of the easement claimed for the full
statutory period. The statutory period is five years.'
In order for a claim to be adverse, 'the use of the
alleged easement must be exercised under a claim of right
and not as a mere privilege or license revocable at the
pleasure of the owner of the land; such claim must be
known to, and acquiesced in by, the owner of the land.'
Swandal Ranch Co. v. Hunt (19961, 915 P.2d 840, 843, 53 St.Rep.
361, 362 (citations omitted).
It is undisputed that Seliski intentionally entered Gregarys'
property on April 14, 1992. To support his prescriptive easement
claim, Seliski presented testimony that he, his family, and others
in the community of Forsyth had at various times over the course of
some '75 years used the dirt roadway on Gregorys' property.
However, there was ample evidence that such use was
permissive. In addition, evidence was presented which showed that
Gregorys at ail times maintained their right of ownership of the
roadway: they refused to dedicate the roadway to the city of
Forsyth for the installation of a pipeline; they denied Howards the
use of the roadway in conjunction with a proposed trailer park at
the rear of Howards' property; and they denied the public access to
the river. With respect to Seliski, Gregorys testified that they
permitted him to ase the roadway to access the rear of his property
because of their desire to be lgneighborly. Moreover, Gregorys
"
testified that they were first aware of Seliski's claim of right to
use the roadway in 1988, after they had erected the fence.
Gregorys also testified that any use of the roadway by anyone prior
to April 14, 1992, was permissive.
There was clearly an abundance of evidence presented at trial
on the basis of which a jury could conclude that Seliski did not
establish an easement by prescription over the roadway on Gregorys'
property. We hold that there was substantial credible evidence to
support the jury's verdict that Seliski trespassed on Gregorys'
property.
The jury also determined that Seliski was culpable for
intentionally inflicting emotional distress, and awarded Gregorys
punitive damages. This tort is recognized as an independent cause
of action in Montana. Saceo v. High Country Independent Press,
Inc. (1995), 271 Mont. 209,. 896 P.2d 411. In Sacco we adopted a
new tesr: for negligent infliction of emotional distress, and in
doing so altered the traditional elements of intentional infliction
of emotional distress. Sacco, 896 P.2d at 426-28. In that case we
stated that
an independent cause of action for intentional infliction
of emotional distress will arise under circumstances
where serious or severe emotional distress to the
plaintiff was the reasonably foreseeable consequence of
the defendant's intentional act or omission.
, 896 P.2d at 428.
The record is replete with examples of Seliski's actions, many
of which have been recounted in the facts section of this opinion:
screamed profanities; threats; cars parked solely to harass; and,
of course, destruction of property. In addition, Gregorys
testified that they were afraid of Seliski and that his conduct had
caused each of them to experience nightmares. The evidence in the
record establishes that Seliski engaged in a pattern of harassment
of an elderly couple with little regard for the consequences of his
conduct or, once the consequences were known, remorse. It was
reasonably foreseeable that Gregorys would become emotionally
distressed as a consequence of Seliski's intentional acts
I1
1 Sacco we also stated:
We conclude that an award of punitive damages is the
proper method of addressing the culpability and
intentional nature of the defendant's conduct in an
intentional infliction of emotional distress case.
w,896 P.Zd at 428. We hold that the jury verdict that Seliski
intentional-ly inflicted emotional distress and Lhat Gregorys be
awarded punitive damages was supported by substantial credible
evidence.
We conclude with the reminder that while we consider and make
ailowances for pro se litigants, we cannot allow these parties to
isnore cotirt rules and procedures. Prompted by the particular
circumstances here, we urge .pro se litigants and attorneys alike to
9
rake care to articulate their issues on appeal, and ground their
issues rn law and fact; otherwise, review by this Court will not be
forthcoming .
We Concur:
Justices
I hereby certiQ that the foiiowin certified order was sent by United
fAiowing named: