Searight v. Cimino

• Decision Date: 04 February 1988
• Docket Number: No. 87-321,87-321
• Citation: 230 Mont. 96,45 St.Rep. 46,748 P.2d 948
• Parties: Murland W. SEARIGHT and Virginia Searight, Plaintiffs and Appellants, v. Michael CIMINO, Defendant and Respondent.
• Court: Montana Supreme Court

Page 948

748 P.2d 948

230 Mont. 96

Murland W. SEARIGHT and Virginia Searight, Plaintiffs and Appellants, v.Michael CIMINO, Defendant and Respondent.

No. 87-321.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1987.

Decided Jan. 12, 1988.

Rehearing Denied Feb. 4, 1988.

Patrick M. Springer, Kalispell, for plaintiffs and appellants.

James C. Bartlett, Kalispell, for defendant and respondent.

HUNT, Justice.

Appellants appeal from a judgment and order of the District Court, Eleventh Judicial District, Flathead County, denying appellants' prayer for Rule 11 sanctions against respondent and imposing sanctions in favor of respondent.We affirm.

Appellants raise five issues on appeal.

1.Did the District Court deprive appellants of property without due process in violation of the United States and Montana Constitutions?

2.Did the District Court otherwise err by ruling that appellants were required to prepare and convey an easement to respondent?

3.Did the District Court abuse its discretion by adopting verbatim respondent's proposed findings of fact and conclusions of law?

4.Did the court err by failing to impose sanctions on respondent and his counsel as required by Rule 11, M.R.Civ.P.?

5.Did the court abuse its discretion when it imposed Rule 11 sanctions on appellants?

Respondent raised two issues of his own.

1.Was appellants' motion to alter or amend the judgment timely filed, and was the notice of appeal timely filed?

2.Should sanctions be imposed against appellants pursuant to Rule 32, M.R.App.P., for bringing this appeal?

This dispute initially arose during litigation between the parties concerning respondent Cimino's liability for half the costs of the construction of an airstrip on property owned by appellants, the Searights, and adjacent to property the Searights had sold to Cimino.On May 14, 1985, judgment was entered in favor of the Searights.The contract for deed contained a provision that allowed Cimino the right to use the airstrip and obligated the Searights to secure that right in the event they sold their property.On June 5, 1986, Cimino's attorney mailed the Searights' attorney a check in satisfaction of the judgment and a document for the Searights' signatures giving Cimino an easement for the use of the airstrip.Shortly thereafter, Murland Searight sent his attorney a letter in which he complained that the easement went outside the scope of the contract for deed and that he would not sign it.Cimino's attorney received a copy of the letter and was also told by the Searights' attorney that no easement would be forthcoming.

On July 29, 1986, respondent Cimino filed a motion to cause appellants to execute an airport easement.Murland Searight fired his attorney on August 6, 1986.On August 12, the Searights' new attorney filed a motion to dismiss or in the alternative for a date certain and a request for sanctions pursuant to Rule 11, of the Montana Rules of Civil Procedure.A hearing was held August 13 on respondent's motion for easement.An easement agreeable to both parties was eventually prepared, signed, and recorded.On December 5, 1986, Searights again requested sanctions against Cimino for bringing the motion for easement.A hearing on this motion was held February 20, 1987.Both parties presented testimony.An order in favor of the respondent was entered on March 12, 1987, levying sanctions of $100 against the Searights on the Court's own motion.The Searights then made a motion to alter or amend the judgment and a motion for stay of execution which were denied.They appeal from the March 12 order and from denial of their subsequent motions.

Before addressing the merits of the casewe will turn our attention to respondent's claim that appellants' motion to alter or amend and notice of appeal were untimely.

The Searights made a motion to alter and amend judgment pursuant to Rule 59(g), M.R.Civ.P.This rule gives a party 10 days after the service of the notice of the entry of the judgment to serve this motion.When notice is served by mail the period for taking an action increases by three days.Rule 6(e), M.R.Civ.P.The notice of the entry of the judgment was mailed on May 4.This gave appellants until May 18 to file the motion.(May 17 fell on a Sunday so the period was extended to Monday.Rule 6(a), M.R.Civ.P.)Appellants mailed their motion on May 15.Service by mail is completed upon mailing.Rule 5(b), M.R.Civ.P.Therefore appellants' motion was served well within the statutory period.

Appellants' motion was denied June 17, 1987.Appellant filed a notice of appeal July 14, 1987 again within the 30 day statutory period.Rule 5, M.R.App.P. Notice of appeal was timely filed.

We now address the merits and combine appellants' issues nos. 1 and 2 as follows:

Did the District Court deprive appellants of property in violation of the due process clause in the Montana and United States Constitutions or otherwise err when it ordered the appellants to prepare and convey an easement to the respondent?

Respondent argues that this issue is not properly before the court because it is a matter which was not raised or objected to at trial, and cannot be heard for the first time on appeal.Appellants argue that because it involves a fundamental constitutional right it may be heard.

This Court held in City of Missoula v. Mix(1950), 123 Mont. 365, 214 P.2d 212, that an easement is a property right protected by the constitutional guarantee against the taking of private property without just compensation.In cases of fundamental rights this Court will hear constitutional issues on appeal for the first time.Montana Power Co. v. Fondren(1987), 737 P.2d 1138, 1144-45, 44 St.Rep. 850, 858.

Appellants' main claim is that they were denied a hearing in a meaningful manner.Unfortunately for their claim, no record was made of the hearing on respondent's motion for an easement.There is evidence on the record, however, that shows the appellants made no objection whatsoever to the court's suggestion that an easement be drawn.Apparently, no order was made and the motion was continued with the intent that the matter be settled by counsel.This was done to the satisfaction of both parties.The appellant, Murland, testified at the sanctions hearing that he had been willing to grant Cimino an easement all along for some 7 or 8 years.It was appellants' attorney who drafted the easement.They can hardly claim that they have been unconstitutionally deprived of their property.

Appellants ask that we find the District Court erred in ordering Searight to convey an easement to Cimino.There is some confusion as to whether an order was actually issued or whether the parties were simply told to work it out amongst themselves.In any event, no record of the relevant hearing was made.This Court cannot base its review on thin air.For a question to be reviewable, the error complained of must be founded on or be borne out by the record, which should be in such form as to enable the reviewing court to determine what the error is.Francis v. Heidel(1937), 104 Mont. 580, 586, 68 P.2d 583, 585, quoting4 C.J.S. Appeal and Error, Sec. 1154(1937).It is the duty of counsel to preserve the record for appellate review.Scofield v. Estate of Wood(Mont.1984), 683 P.2d 1300, 1302, 41 St.Rep. 1212, 1215.Because there is no record of their efforts, we will not disturb the actions of the parties in putting the easement on the record.

Appellants' next dispute the District Court's findings of fact and conclusions of law resulting from the hearing on sanctions.Appellant finds fault with all eleven of the court's findings of fact and argues that the court uncritically adopted the respondent's proposed findings of fact.This Court is not compelled when confronted with the verbatim adoption of proposed findings and conclusions to find such inherent fault therein that the prevailing party must be reversed.Sawyer-Adecor Intern., Inc. v. Anglin(1982), 198 Mont. 440, 447, 646 P.2d 1194, 1198.The standard for review of the findings and conclusions is the same.City of Billings v. Public Service Com'n.(Mont.1981), 631 P.2d 1295, 1301, 38 St.Rep. 1162, 1165.The District Court's findings will not be rejected if they are supported by the evidence.631 P.2d at 1301.

After close review of the record, this Court finds only two instances where the findings are not supported by substantial credible evidence.Finding of fact no. 11 contains the following statement:

... and since this Court had previously found that an easement was warranted the Motion for Sanctions under Rule 11 should never have been brought.

Appellants argue that this ignores the fact that a motion for Rule 11 sanctions was contained in their August 12, 1986 motion to dismissrespondent's motion for an easement.The hearing on respondent's motion was held the next day on August 13.Apparently, the District Court focused only on the appellants' second motion for sanctions which was filed on December 5, 1986.The District Court also misstated a fact in its conclusion of law no. 6.In it, the court finds that the correspondence between Murland Searight and his attorney refusing Cimino's easement was only produced at the request of Cimino's counsel.This is not correct.A copy of this letter had been sent to respondent's counsel at the time it was written and attached to respondent's motion for easement.We hold, however, that both misstatements constitute harmless error because neither are necessary to support the District Court's decision.

Appellant's fourth issue alleges the District Court committed error in failing to impose Rule 11 sanctions against the respondent.Rule 11 states in pertinent part:

Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.A party who is not represented by an attorney shall...