Gregory v. Spannagel

No. 02-172
[N Ti-ltr: SLJPKEME COGKT OF THE STATE OF R.lONT.ANA
2002 I T 297N
and
ROE GREGORY, SR.. . ..
k c 2 ,,
,q
Petitioner and Appellant, .tiiiJ
V.
ELI SPAYNAGEL, JR., and JE.4N K. SPANNAGEL, his wife.
Respondents and Respondents
APPEAL FROM: District Court of the Sixteenth .ludicial District,
In and for the County of Rosebud,
The Honoral~le L. Hegel, Judge presiding.
Joe
COUNSEL OF RECORD:
For Appellant:
Ron Gregory, Sr. (pro se), Forsylh. TLZontana
For Respondents:
Geoffrey R. Kcller, Matovich Kc Keller, P.C., Billings, Montana
Sub~nitted Briefs: Juire 6, 2002
on
Decided: December 12; 2002
Filed:
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75 2. Did the District C'ourt abuse its discretion when it affirmed the award of arrorney
fees and iniposcd Rule I 1 sanctions against Ron Gregory, Sr.'?
FACTIJAL A N D PROC:EDI,!RAL BACKGROI!UD
*6 On July 28, 1907, Ron Gregory, Jr., prrrchased approximately 5,828 acres ofproperty
on adjacent parcels from XIent Land Corporation. Apparently Grcgory. Jr., and Grcgory, Sr.,
purchased this property as part of a joint venture to develop the property for ranching and
residential purposes.
7 Shortly after moving onto the property, a dispute arose between the Gregorys and
Spannagels regarding road access to the Gregory property. There were two main routes for
access to thc Gregory land. The first, a gravel road that lvinds through the Gregory parcel,
exits at the north end of the Gregory parcel and continues for two niilcs no12h where it passes
under Interstate Elighway 94. The height of vehicles which can pass under 1-94 is limited.
The second, "Reservation Creek Road," is a county road that runs north to 1-94 and lies
itnmcdiately to thc \vest of the parties' property on "Section 13." To access the Gregory
parcel by way of the second road-known as the "well roadw--vehicles
must cross over the
western half of Section 13, which the Spannagels own, to reach the eastern half of Section
13, which forms part of the Gregory property.
"8
i The Gregorys began developing their parcel, and traversed the "well road" on scveral
occasions to deliver materials to the Gregory parcel. M'hile some ofthc use was permittedl
eventually, the Spannagels objected to the use and delivered a Criminal Trespass Yotice to
the Gregorys on October 10, 1907, warning them of civil and criminal sanctions for fi~l-ther
use of tlic "well road" on the westem half of Section 13. Gregorys filed a pclilion for
tietiaratory relief and sought a TRO arrd isijuilcrion against tile Spannagels on Xoveinbcr 20,
1907. The District Cou~?initially granted the TRO. However, after Spannagels filed a
motion to dissolve the TRO on Xovember 24, 1097. the court held a heariug on Uovember
25, 1997, modified the TRO temporarily after the hearing, and later quashed the TRO on
December 9, 1097. Gregorys requested reconsideration on I>ecember 2") 1097, and
Spa~lnagels
filed a timely response. The District Court eventually denied reconsideratio11
over one year later on January 1 1, 19%').
19 Spannagels then filed a motion for attorney fees on January 15, 1999, pursi~artt
to
5 27-19-306, MCA. Shortly thereafter, Gregorys amended their petitiorl for declaratory
judgment, and alleged, as an altenrate theory, a right to prescriptive use of tlte "Quist
homestead road." In its November 29, 1990, Memora``dum Order, the District Court
and
concluded that Ciregorys failed to timely respond to Spannagels motion for fees and
otherwise concluded that the Spannagels deserved fees on the merits of their successful
defense against the 'TKO.
711 0 On January 20, 2000, Gregorys n~oved dismiss their amended petition without
to
prejudice, On Jasiuary 31, 2000, one of Ciregorys' attorneys moved to withdraw from
representation at Gregory, Sr.'s, request and Gregory, Sr., appeared without counsel at a
hearing and presented and filed a motion to the court on behalf ofhis son and himself to sct
aside the District Cot~rt's
Nove~nher 190") or-dcr granting attorney fees to the Spannagels.
29,
C;regory, Sr., claimed thzit pursuant to Rule (jO(b), M.R.C'iv.P., there were sufficient grounds
to set tile order aside, including "newly-discovered e .idence" oi'rhe "Quist homestead road"
~
cascnler.it a~rdscvcral alicgations that Spar~nagelscomn~ittcdfraud and made fi-audtiicnr
representations before the court during the TRO hearings and during settlement negotiatiosis.
Spannagels opposed the motion, contended that Gregory, Sr.. was not pel-tnitted to represent
Ciregot-y, Jr., that rhc Quist easement was irrelevant to the TRO issue, that the motion was
untimely, and that no settlement agreement had ever been reached.
71 1 Spannagels requested an opportunity to take the deposition of Gregory?.lr., who was
absent from these proceedings, and Gregory, Sr., filed an objection on his son's behalf, noting
that his son was in Hong Kong and unavailable for the deposition. Gregory, Jr., st~bmitted
a letter to the court indicating his wisl-,tllat Grcgory, Sr., represent him as "spokesman" for
the family arrd pursuant to his power of attorney.
711 2 On February 9,2000, Gregorys' remaining counsel withdrew from representation. On
February 11, 2000, Grcgory, Sr., filed a reply to the Spannagels' response to the Grcgorys'
motion to set aside attorney fees. On February 14, 2000, (iuegory, Sr., tiled a motion to
prohibit taking Gregory. Jr.'s, deposition the next day, and neithcr Gregory, Jr., or Gregory,
ST.,appeared at the deposition. 1 February
0 1 29, 2000, the Spa~lnagels
moved to prohibit
Gregory, Sr.. from the unauthorired practice of law.
7113 The District Court considered the pending motions and on Deccmber 3,2001. issued
a blemorandunr and Ordcr Regarding Attorney Fees, Motion to f>isrniss and Other Pendi1,g
affirmed its earlier atvard of attorney fees, concluded there was
Motions. The District C'o~rrt
1 0settletnent
1 agreement and that none of Gregory, Sr.'s, contentions were meritorious. It
found that his motion to set the award aside was ti-ivoious, and warded attorney fees for
dei'cnding against that motion. The court dcterrnincd that Gregory. Sr., cngagcci in the
unlawful practicc of law by representing Gregory, Jr. The court ordered that Gregorys be
jointly and severally liable for S3565.54 of attorney fees for defending against the TRO, that
Gregory, Sr.. represent only his own interests, and also awarded attorney fees in the amount
of $2328.80 for having to defend against the motion to set aside.
STANDARD OF REVIEW
114 When reviewing a district court's order granting or denying injunctive relief, v-e
determine whether the court abused its discretion. S~veet
(;riiss Farn2.s v. Ho(lrd ufCo~int;l..
2200 f)MT 147, 7 20, 300 Mont. 66, "1 22, 2 P.3d 825, 1' 20. We review a district
Conllrss.
court's findings of fact to determine whether the court's findings are clearly erroneous.
G~ttJzrie Hurdj,, 2201 .MT 122, i ! 24, 305 Mont. 367,1! 24, 28 P.3d 467,Tj 24. We review
1,.
a district court's conclusions of law for correctness. Curbor1 Counv 1). C'nion Reserve Coed
Cb., (1995)? 271 Mont. 450, 46") 898 P.2d 680, 680. When a district court concludes
Irzc.
a violation of Rlrle 11 M.ti.Civ.P., occurred, we will reverse only where there is a n~anifest
abuse of discretion. t;jelsratl v. State. Tllro2rgiz Dept. of Hig111vcly.s(1994), 267 Mont. 21 1,
226, 883 P.2d 106, 1 15,
DISC~SSIOS
ISStlE I
ql5 Did the District Cotrrt err when it detcrmincd that Ron Gregory, Sr., unlawfullq~
practiced law'?
ft 10 'ihe District Court concluded that i t was appropriate to strike motions and picadings
filed by C;rcgov9 Sr., on bchaif ofiiregory, Jr., sincc Gregory. Sr., is not a iicerrscd altornq-
in 'Llnntena. Grcgcqv, Sr., contends that he represents a "cornmon carrse" and acts for tile
"benefit of the entire Gregory Family," and requests that we distinguish H'eczvcr v. Lniv Fin11
~fGr(zyhill, et 01. (1990), 246 Mont. 175, 803 P.2d 1089.
117 Section 37-61-210: MCA, provides that one who practices law in court without a
license is guilty of contempt of court. We concluded in Weaver that a husband could not
appear in court on behalf of his wife to prescnt her claims as a plaintiff. PVeirr~cr, Mont.
246
at 178, 803 P.2d at 1091. tlere, Gregory, Sr., appeared at the District Court and filed
pleadings on behalf of his son Gregory, Jr. Gregory-, Sr., admits that he has no license to
practice la\v. We find that the District Court did not e n when it prohibited Gregory, Sr., from
representing Gregory. Jr. We also limit this appeal to Gregory, Sr.'s, interests since Gregory,
Jr., did not appeal any decision or judgment of thc District Court.
ISSbE 2
1 18
1 Did the District Court abuse its discretion when it affirmed the award of attorney fees
and imposed Rule 1 I sanctions against Ron Gregory, Sr.?
7 I9 The District Court concluded that there was no basis for setting aside the previously-
awarded attorney fees. It found that the partics had not reacllecl an agreement to waive those
fees and that Gregory, Sr.'s, allegation regarding the Quist easement was irrelevant to the
prior defense against the TKO. 'The court further concluded that the Quist casement was
irrelevant since Gregorys had preb-iouslymoved to dismiss its stmended petition claiming the
7
Qriist easement. The District i:ourt concluded that the motion was frivoious and without
merit, violated liulc !1, M.R.Cit-.P.; and a\\ardcd attorney fees to Spanitageis pursuailt to
that mle.
720 On appeal, Gregory, Sr., contends that the motion to set aside was not frivolous
because of the Quist easement evidence and that the District Court erred when it declined to
constder the alleged fraud perpetrated by the Spannagels during atid subsequent to the TKO
hearing. Finally, Gregory, Sr., contends that the Dtstrrct Court erred u hen rt found that the
Spannagels did not breach a settlement agreement with the Gregotys, which included a
provision that the Spannagels would waive their claim for attorney fees incurred in defense
of the TRO.
7121 Spa~inagels
note that Gregory, Sr., does not challenge the reasonableness of the Sees
and ask that thts Court affirm the amount of the attonley fees if r e affirm the avard of
attorney fees. Spannagels also contend that the award of attorney fees \vas authorized
pursuant to 3 27-19-306, MCA, and our decision in iblartu v. Sinirll (1981j, 191 Mont. 179,
622 P.2d 1011. Spannagels Surther contend that the District Court's conclusions regarding
the Quist easetilent claims Lvere correct since that info~mationwas available at the time of
the TRO, was never presented at the 1 R O hearing despite the availability of that in forination,
and is irrele~ant
bccaitse the amard of attorney fees relates to the successful defense agalnst
the TRO and u a s not based on the ultrtnate malts of the case. Spannagels also contend that
no settlement agt cert-icntu as reached and that even t ftherc had been at1 agreemerrr, 808 P.2d 494, 498 (quoting Rule 11, h4.K.Civ.P.). The
SPb~ni~
Distr~ctCourt has "vv~dcJat~tudcto determme whether the factual c~rcumstaneesof a
particular case amount to frivolous or abusive litigation tactics . . . ." lI)Ygosrit~o Swnrzsor~
1).
(19')0), 240 Mont. 435,440. 784 P.2t1919, 926. We affinn the District C'o``rt's
conclusion
that a Rule 1 1 \~olationoccurred and its avvard of attorney fees.
2 7 For the same reasons, \be conclude that t h ~ appeal I S fri\olous and vvithout nierit, and
s
award attorney fees to Spannagels for having to defend against this appeal.
728 For thesc reasons we affirm the orders of the District Court and remand for
determination of reasonable attorney fees incurred by Spannagels oil appeal.
We Concur:
Justice Jim Rice concurring in part and dissenting in part.
4129 i concur cornpieiely with the COUII'S iirraJysii and holdings uniicr issues i anci 2. i
\+-iih~ut and that the District C'ourr did nor e x in
agree that Grcgoi-y's argiitnents 12~ci.i: merit
siivarding attorney fees and sanctions to ihc Spannagels. i \\-otilddecline, ho5vcvcr* irnposc
to
payment of Spannagels' attorney fees for this appeal upon Grcgory. Follo~vingthe
withdrawal of his attorneys, Gregory sought to litigate this rnatter regarding his propertypo
se. .4lthough his legal arguments were incorrect, i find it plausible that ti nonia\\;yer could
have believed the exchange of letters betwecn the parties here constituted a resolution of ;he
matter, and that, following an adverse ruling by the District Court, it was not unreasonable
for Gregory to seek appellate review based upon that plausible belief.