No. 83-255 

IN THE SUPRE,W COURT OF THE STATE OF MONTANA 

1984 

FIRST SECURITY BANK OF KALISPELL, 

Plaintiff and Respondent, 

INCOME PROPERTIES, INC., JOHN J. MING, 

INC. TREASURE STATE REALTORS, INC., 

JOHN J. AND MARIE MING, 

Defendants and Appellants. 

APPEAL FRON: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert C. Sykes, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John J. Ming, pro se, Kalispell, Montana 

For Respondent: 

Hash, Jellison, O'Brien & Bartlett; James C. Bartlett, 

Kalispell, Montana 

Submitted on Briefs: December 1, 1983 

Decided: February 2, 19 84 

. 6-12 J 

Filed: 984 

E 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Defendants appeal from the judgment of the District 

Court of the Eleventh Judicial District, Flathead County, 

granting possession of certain real property to plaintiff 

First Security Bank of Kalispell, and awarding damages to 

the plaintiff on account of wrongful possession by 

defendants. For the reasons stated below, we dismiss the 

appeal as moot. 

In December of 1975, a trust indenture was executed by 

Income Properties, Inc. as grantor, First Montana Title 

Company, as trustee, and First National Bank of Kalispell 

(now Norwest Bank), as beneficiary. The property consisted 

of two lots adjacent to the main street of Kalispell, 

Montana. A two bedroom home sits on one lot, and a 

converted office building is on the other lot. John and 

Marie Ming apparantly operated a real estate business in the 

converted building and maintained residence in the home. 

John Ming is president of Income Properties, Treasure State 

Realters, Inc., and John J. Ming Inc. 

Income Properties defaulted on the terms of the 

indenture in 1981 and failed to cure. The property was 

subsequently noticed for a public trustee's sale on December 

31, 1981. The property was purchased by the plaintiff, 

First Security Bank (First Bank), for the sum of $60,500. A 

trustee's deed was then executed in plaintiff's name. 

First Bank gave written notice to Ming and his 

corporations to vacate the two lots. Ming refused to move 

and retained possession of both the house and the office. 

On June 16, 1982, the bank filed a complaint in justice 
court alleging unlawful de tainer and seeking possession and 

damages. Ming, appearing pro se, filed an answer 

questioning the propriety of First Bank's title to the 

property. At this point, the justice court was deprived of 

jurisdiction, and the cause was certified to district court. 

The plaintiff renewed the terms of its old complaint. 

An amended answer, written on stationary belonging to the 

law firm of Datsopolous, McDonald and Lind but signed only 

by John Ming, denied the Bank's allegations of title and 

damages. The answer went on to assert that the trustee's 

sale had been defective, and that First Bank had always been 

aware of the defects. Ming also pressed a counterclaim 

against the Bank and a third party claim against First 

Montana Title Company, alleging a conspiracy to defraud Ming 

and his wife of the property in dispute. 

The Bank moved for summary judgment on October 13, 

1982, and filed appropriate affidavits and a memorandum in 

support of the motion. The Bank's motion and memorandum 

emphasized that if there were any defects in the trustee's 

sale, as alleged by Ming, then his complaint lay with the 

trustee under the trust indenture, First Montana Title 

Company, or the beneficiary, Norwest Bank, and not against 

First Bank, which alleged status as a bona fide purchaser 

for value. A hearing on the motion was scheduled for 

October 26, but the matter was continued at request of 

Ming ' s counsel, Chris Swar tley of Datsopolous, McDonald and 

Lind. 

On November 23, Swartley moved to withdraw as 

defendants' counsel, alleging that the attorney-client 

relationship had been "strained" from the outset and that 
Ming had been "totally uncooperative in resolving [the case] 

or in following [counsel's] recommended course of action." 

Following issuance of an order to show cause and a hearing, 

the trial judge granted the withdrawal petition. Ming was 

ordered to prepare a brief and appropriate affidavits in 

response to the summary judgment motion. He then retained 

attorney Lloyd Ingraham of Polson as counsel. EJei ther 

Ingraham nor Ming prepared pleadings or supporting documents 

as ordered by the court. Instead, Ingraham informally 

requested another continuance. The request was denied. 

Without explanation or justification, no responsive 

pleadings, aff idavits, or other documents were prepared or 

filed after the trial court denied the second continuance. 

On December 22, 1982, the court granted summary judgment to 

the Bank. In its findings of fact and conclusions of law, 

the court noted defendants' failure to file a responsive 

pleading, but emphasized that if defendants had any 

legitimate claims at stake, they were against the title 

company or Norwest Bank, and not First Bank, which the court 

found was a bona fide purchaser for value, taking the 

property free of any defects. The court set a hearing for 

January 21, 1983, to hear evidence on damages stemming from 

defendants' wrongful possession of the properties. A writ 

of possession was prepared in the event the Mings refused to 

vacate the properties. 

On December 27th, Ming pro se filed a notice of appeal 

to this Court and posted a $500 appeal bond. The appeal was 

stricken sua sponte by this Court January 19, 1983, because 

the judgment was not final pursuant to Rule 1, 

M.R.App.Civ.P., and lacked certification under Rule 54(b), 
M.R.Civ.P. The cause was returned to district court, 

whereupon the damages hearing proceeded as originally 

ordered. Ming again appeared on his own behalf, alleging 

nominal damages, if any, from his possession of the lots and 

buildings thereon. The trial court disagreed, and its 

judgment of February 25, 1983, found defendants liable for 

$38,437.50 damages and $1,200 in attorney's fees. (Actual 

damages for wrongful possession amounted to only $12,812.50, 

but because the court found that such possession had 

continued in bad faith for many months, the actual damages 

were trebled as provided by law.) Following notice of entry 

of judgment, Ming, acting pro se, submitted a pleading 

captioned "Motions to Reconsider," criticizing alleged 

defects in the trustee's sale and the subsequent award of 

damages. Copies of several documents relating to the trust 

indenture were attached. However, no action was taken on 

these "motions," and Ming timely filed a notice of appeal 

April 1, 1983. None of the parties make any reference in 

their briefs to Ming's "motions." 

In the interim following entry of judgment, Ming 

apparantly refused to move himself or his business and 

personal effects from the lots. A writ of possession was 

issued, and all personal effects were removed. The Mings 

left their residence and place of business. Subsequent 

writs of execution have been filed on Ming's personal 

property and financial accounts to satisfy damages awarded 

under the court's judgment. At no time before or after 

notice of appeal was filed did Ming or his attorney, 

Ingraham, move to stay execution of the judgment or file an 

appropriate supersedeas bond. 
We note that all appellate briefs filed on defendants' 

behalf have been prepared and submitted by Mr. Ingraham. We 

also note that, subsequent to submission of this case, 

several motions and personal letters have been filed by 

First Bank and the defendants concerning alleged 

jurisdictional defects in the appeal. We denied, without 

prejudice, First Bank's motion to dismiss this appeal for 

mootness. Similarly, we denied motions to dismiss for lack 

of prosecution, out of consideration for defendants' efforts 

to at least put before this Court the issues they deem 

critical. Ming contacted the trial court for advice about a 

stay of execution of judgment and the filing of a 

supersedeas bond, but he apparantly has not pursued either 

course of action. 

On this appeal, defendants raise two issues relative 

to the District Court's summary judgment: (1) Whether the 

trustee's sale was defective, and (2) whether First Bank had 

notice of the alleged defects. No issue is raised 

concerning damages awarded to the Bank. Although the Bank 

has responded to allegations concerning the trustee's sale, 

it renews its previous motions to dismiss for mootness and 

other jurisdictional irregularities. Upon examination of 

the record and consideration of issues presented by the 

parties, we now grant the Bank's motion to dismiss the 

appeal as moot, because this Court is not able to render the 

relief defendants seek. 

Rule 7(a), M.R.App.Civ.P. provides, in pertinent part: 

"Upon entry of a judgment or order a 

party may apply to the district court on 

notice or ex parte for a stay of 

execution of the judgment or order . . . Upon service of notice of appeal, if the 

court has made no such order . . . he may 
present to the district court and secure 

its approval of a supersedeas bond which 

shall have such surety or sureties as are 

required . . . The bond shall be 

conditioned for the satisfaction of the 

judgment or order in full together with 

costs, interest, and damages for delay, . . . When the judgment or order determines 

----------____--------------.-- 

the disposition of property in 

controversv as in real actions, re~levin. 

and actions to foreclose mortgages . . . the amount of the supersedeas bond shall 

be fixed at such sum onlv as will secure 

......................... 

the amount recovered for the use and 

detention of the property, the costs of 

the action, costs on appeal, interest, 

and damages for delay . . . " (Emphasis 

added. ) 

By paying damages or surrendering property due under a 

judgment, a party effectively accedes to the correctness of 

that judgment, and it passes beyond this Court's power to 

review. Dahl v. Petroleum Geophysical Co. (Mont. 1981), 632 

P.2d 1136, 38 St.Rep. 1474; Montana Nat'l Bank of Roundup v. 

Dept. of Revenue (1975), 167 Mont. 429, 539 P.2d 722; 

Gallatin Trust & Sav. Bank v. Henke (1969), 154 Mont. 170, 

Here, defendants have surrendered the property in 

question under court order and the terms of a writ of 

possession. No stay of execution of judgment was sought and 

no supersedeas bond was requested or approved. Defendents 

have acquiesced in the terms of the summary judgment; this 

Court is in no position to grant relief. As we emphasized 

earlier, the issue of damages is not before this Court. 

Defendants' only responses to the mootness issue are that no 

statute or case law has been cited in support of the Bank's 

motion to dismiss, and that the Bank's contentions with 

respect to stay of judgment and a supersedeas bond are 

absurd. The first response is incorrect; the second is 

without merit. Furthermore, defendants' dogged persistence 
in attacking the District Court's summary judgment, after 

failing, without explanation or justification, to file 

responsive pleadings and supporting affidavits in opposition 

to First Bank's motion for summary judgment, is more than a 

little unusual. Nevertheless, because defendants may be 

appealing in good faith reliance on defense counsel's theory 

of the case, we decline the Bank's suggestion that we award 

damages under Rule 32, l4.R.App.Civ.P. for an unreasonable 

appeal. 

We concur: /'