Reiter v. Reiter

NO. 89-125
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
ANNA G. REITER,
plaintiff and Respondent,
vs.
EDWARD L . REITER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth ~ u d i c i a l~ i s t r i c t ,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant: Edward L. ~ e i t e r ,pro se, Billings, Montana
For Respondent: Fred E. Work, Jr., ~ i l l i n g s ,Montana
Submitted on Briefs: September 21, 1989
Decided: January 4, 1990
Justice ~ i l l i a mE. Hunt, Sr., delivered the opinion of the
Court.
Anna G. Reiter, mother of defendant and appellant, filed
an unlawful detainer action in Justice Court, ~illings
owns ship, Yellowstone County, seeking to remove defendant,
Edward L. ~eiter,from her property. The Justice Court ruled.
in favor of Anna and ordered Edward to vacate the premises.
Edward appealed to the ~hirteenth Judicial District Court,
which also found in favor of Anna. Edward now appeals to
this Court. We dismiss the appeal as frivolous.
It is difficult to ascertain from Edward's rambling and
incoherent brief exactly what issues he raises on appeal. It
appears that his contentions are as follows:
1. Whether the District Court proceedings violated
Edward's due process rights; and
2. Whether the ~istrict Court erred in finding that
Edward was a tenant at will.
plaintiff, Anna Reiter, who is over 80 years of age, is
the sole owner of agricultural property in Yellowstone
County. For a number of years, she allowed her adult son
Edward, the defendant in this case, to reside on the
property.
In 1986, Edward placed a lien on the property. In 1988,
the District Court extinguished the lien and quieted title in
Anna. We affirmed that action in ~ e i t e r v. ~ e i t e r (Mont.
1989), 772 P.2d 314, 46 St.Rep. 751.
On ~ p r i l 8, 1988, Edward was served with a ~ o t i c e to
~errninate unspecified Lease, To Remove Personal properties
and To Return production ~onies. When Edward failed to
comply with the notice, Anna filed this unlawful detainer
action in Justice Court.
~ollowinga hearing at which Edward appeared pro se, the
Justice Court found in favor of Anna, ordering Edward to
vacate the property and to pay Anna's reasonable attorney's
fees. In July, 1988, Edward filed a timely appeal for trial
de novo in the District Court.
On October 19, 1988, the District Court dismissed the
appeal because Edward had failed to file an undertaking. On
December 16, 1988, the court reinstated the appeal, allowing
Edward to forego the undertaking due to his indigence. At
that time, the Court set trial for December 28, 1988.
Edward's subsequent motion to continue the trial was denied
and trial proceeded as scheduled on December 28. Edward
failed to attend the hearing, choosing instead to file a
document entitled rial De Novo submitted on points of Law in
~bsentia in which he stated that he was unable to obtain a
lawyer on such short notice and he refused to be
cross-examined without the presence of counsel.
The ~istrictCourt found in favor of Anna and ordered
Edward to leave the farm. He now appeals to this Court.
After reviewing the file, we hold that Edward was
afforded adequate due process. Edward claims that he did not
have adequate time to obtain an attorney or conduct
discovery. These contentions stretch the imagination. ~ i v e
months elapsed from the time Edward filed notice of appeal to
the time of trial. Although the appeal was dismissed and
reinstated during that time, these actions did not prevent
Edward from procuring the services of counsel. Moreover,
once the ~istrictCourt granted Edward's motion for leave to
appeal without an undertaking, it was obliged to expedite the
matter in order to prevent the possible destruction of Anna's
property during the pendency of the action.
Edward also complains that he was not allowed a trial by
7 . The argument is frivolous. A party desiring a jury
trial must file a demand before the commencement of the
proceeding or the right to a jury will be waived. Section
25-31-804, MCA. At no time did Edward demand a jury trial.
Edward's second issue also lacks merit. Substantial
credible evidence supports the ~istrictCourt's finding that
Edward was a tenant at will. The evidence established that
Anna was the sole record owner of the property, that she
allowed Edward to reside on the property for an indeterminate
time without a specific lease and that he had been served
with proper notice to leave the premises. As Edward elected
not to attend the trial, the record is devoid of any evidence
to refute these facts.
Our consideration of the record leads us to conclude
that this appeal has been taken without substantial or
reasonable grounds. We therefore award sanctions against
Edward pursuant to Rule 32, M.R.App.P., in the amount of
$500. The sanction shall be paid to the plaintiff, Anna
Reiter .
Appeal dismissed. /
AJ'"zJ``
Chle Justice