Storseth v. Brown, Raymond & Rissler
| Decision Date | 30 January 1991 |
| Docket Number | No. 89-98,89-98 |
| Citation | 805 P.2d 284 |
| Parties | Donna Mae STORSETH, Appellant (Defendant), v. BROWN, RAYMOND & RISSLER, a professional corporation, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Mary T. Kloeckner, Cheyenne, for appellant.
H. Steven Brown of Brown, Raymond & Rissler, P.C., Casper, for appellee.
Before CARDINE, C.J., * and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
This appeal involves attorney fees charged in an especially unpleasant divorce proceeding. 1 Appellees (law firm), sued their ex-client, Donna Mae Storseth (Storseth), for unpaid legal fees incurred through trial. It is from the summary judgment granted in favor of the law firm on that ancillary suit that this present appeal is pursued. Storseth states as her issues whether:
I.
* * * the contents of appellant's pro se pre-summary judgment motions were sufficient to raise a genuine issue of material fact as to appellant's liability or the amount thereof which should have precluded summary judgement [sic].
II.
* * * appellant's pro se status while she was endevoring [sic] to obtain competent counsel should entitle her to less stringent standards of legal competency as a matter of law.
III.
* * * the garnishment statute as applied to appellant, or on its face, is unconstitutional to the extent that AFDC and general assistance funds are exempt while court ordered child support and alimony are not.
The law firm responds:
I.
The district court did not commit an error of law by granting appellee's motion for summary judgment[.]
II.
A pro se litigant is not entitled to greater rights than other litigants[.]
III.
The garnishment statute [sic] constitutionality is not relevant in this case.
This appeal will chronicle the adversities to be encountered in the lands of summary judgment, Cordova v. Gosar, 719 P.2d 625 (Wyo.1986), prematurely entered upon contended default of appearance, McGinnis v. Beatty, 28 Wyo. 328, 204 P. 340 (1922), without any notice of any default hearing, Spitzer v. Spitzer, 777 P.2d 587 (Wyo.1989). Those issues when extrapolated from the litigants' arguments make sense only by retracing the procedural history of this fee litigation.
Storseth was engaged in a very disharmonious marital dissolution conflict and, in October 1987, retained the law firm for legal representation. A deal of some kind was struck, obviously not in writing, regarding fees. The representation then started and continued until an apparently unpleasant conference on August 22, 1988, followed by two letters of withdrawal of August 23 and 24 and a motion to formally withdraw filed August 24.
On December 5, the law firm filed suit for legal fees with interest. By happenstance and pure accident on exactly the same day, Storseth instituted a petition for arbitration of fee dispute before the Committee on Resolution of Fee Disputes of the Wyoming State Bar. The petition was dated December 2 and mailed to the office of the Wyoming State Bar and consequently docketed on December 5. 2
Storseth responded to the district court complaint for legal fees by a motion to dismiss filed December 13 stating that "Defendant moves this Court for an Order dismissing the above entitled action on the grounds that it has been turned over to the FEE ARBITRATION BOARD."
The law firm, following notice of a January 26, 1989 fee arbitration dismissal, filed a motion for summary judgment on February 6, 1989 and obtained a hearing date of February 22.
On February 21, Storseth, in handwritten form, filed a Motion for Order for Continuance Hearing On Motion for Summary Judgment. Apparently, a "conference" was held with the district judge on February 22, although nothing reflects that occurrence and no document was filed resetting a date for the summary judgment motion hearing. On March 2, Storseth filed a typewritten document captioned Emergency Motion for Enlargement of Time to Provide Competent Counsel for Purposes of Present Hearing.
On March 6, the law firm filed a traverse to the emergency motion denying all allegations and contending:
Defendant's continued resistance to pay Plaintiff is frivolous and without merit. Defendant's accusations are libelous and unsubstantiated. This case has already been heard by fee arbitration and Plaintiff is therefore entitled to costs and attorney's fees as provided under Wyoming Statute § 1-14-128; Baseless Pleadings.
On March 6, a decision letter was rendered by the district court without hearing, which stated:
The above matter having come before the Court upon a motion for summary judgment by plaintiff, the defendant having been allowed an additional ten (10) days to file affidavits or other material in opposition to the motion, and the defendant having failed to file such material within the time allowed, the motion of the plaintiff is granted. [Counsel] is requested to prepare a judgment accordingly.
The next day, March 7, also without appearance or notice, an order of summary judgment was entered, from which this appeal is pursued, stating: 3
THIS MATTER having come before the Court, upon Plaintiff's Motion for Summary Judgment, and a hearing having been set February 22, 1989 at 8:30 a.m.; and the Plaintiff appearing * * * and the Defendant, Donna Mae Storseth, appearing pro se; and the Defendant having made representations to the Court that she is without counsel and in need of legal assistance, the Court FINDS as follows:
1. That Plaintiff filed a Complaint on December 5, 1988, and service of process was duly made upon Defendant.
2. That on or about December 13, 1988, Defendant submitted an Attorney Fee Dispute to the Fee Arbitration Committee of the Wyoming State Bar.
3. That at the time Defendant submitted her fee dispute to Fee Arbitration, Defendant filed a Motion to Dismiss dated December 13, 1988. Defendant did not set her Motion to Dismiss for motion hearing and more than sixty (60) days has transpired and therefore Defendant's Motion to Dismiss is deemed denied.
4. On or about January 26, 1988 the Fee Arbitration Committee of the Wyoming State Bar dismissed the fee arbitration filed by Donna Mae Storseth, for lack of jurisdiction. A copy of that decision is filed herein. This Court therefore has jurisdiction to decide the matter.
5. That the Defendant has not filed an Answer to Plaintiff's Complaint and that the Defendant has therefore failed to provide the court with a meritorious defense.
6. In an attempt not to prejudice the Defendant, this Court allowed the Plaintiff an additional ten (10) days from February 22, 1989 to procure counsel in order to present necessary pleadings to the Court.
7. Ten (10) days has elapsed as of March 4, 1989 and pursuant to the rules of procedure, the Defendant's 10th day to comply with the Court Order would be Monday, March 6, 1989.
8. The Defendant filed another Motion for Enlargement of Time to Provide Competent Counsel on March 2, 1989. The Court finds that said motion does not comply with the court's instructions of February 22, 1989. Said motion does not offer a meritorious defense nor does it respond to Plaintiff's motion for summary judgment.
9. The Defendant has failed to comply with the Wyoming Rules of Civil Procedure in that Plaintiff's complaint remains unanswered, and affidavits have not been filed in response to Plaintiff's motion for summary judgment.
10. Plaintiff is being prejudiced by the continuation of this lawsuit, and that the Plaintiff is entitled to protection from the continued diminishment of Defendant's estate.
WHEREFORE, the Court orders as follows:
1. That Defendant's Motion to Dismiss dated December 13, 1988 is deemed denied.
2. That Plaintiff's Motion for Summary Judgment dated February 6, 1989 is hereby granted and Plaintiff is awarded Judgment in the amount of Seven Thousand Three and 46/100 Dollars $7,003.46.
DONE IN OPEN COURT this 7th day of March, 1989.
(Emphasis added.)
On the same day that the order of summary judgment was issued, the law firm had the clerk of court issue a notice of right to hearing on execution and garnishment and followed with three executions, which included garnishment of bank accounts of Storseth on March 10, 1989 at Hilltop National Bank, the Wyoming National Bank and the Mountain Plaza Bank as well as execution on the Storseth family motor vehicle which was "expeditiously" seized by the sheriff for execution sale. Proceeds at least alleged to have been child support were obtained at the Mountain Plaza Bank in the net amount credited of $745.05, after deduction of costs and judgment interest, and gross sale price of $5,083.45 for the family vehicle, against which were charged $93.09 as expenses, for a net credit of $4,990.36.
This litigation was not yet to end. Immediately after Storseth discovered that a summary judgment had been entered, she filed a comprehensively detailed motion for reconsideration or, in the alternative, a motion for relief from the district court's order of summary judgment pursuant to W.R.C.P. 60(b) and a motion to stay judgment pending reconsideration and/or motion to vacate pursuant to W.R.C.P. 60(b). On the same day, March 10, Storseth filed a request for hearing on rights to exemption which related specifically to the family motor vehicle which had then been picked up. A hearing on exemptions was scheduled for March 17. On March 13, Storseth filed a further document as a motion to stay execution of judgment pending review. The law firm filed a traverse to the W.R.C.P. 60(b) motion and motions for stay by substantive attack, which documents included the following statement:
Furthermore, Defendant has already submitted her case to fee arbitration pursuant to guidelines and rules of the Wyoming State Bar. At the time of submission, the Defendant stated that the decision of the arbitration committee would be binding. As previously stated, the Fee Arbitration Committee of the Wyoming State Bar dismissed Defendant's fee arbitration for lack of jurisdiction, meaning...
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