NO. 87-321

INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

MURLAND W. SEARIGHT and VIRGINIA SEARIGHT,
PlaintiffsandAppellants,-vsMICHAEL CIMINO,
Defendant and Respondent.

APPEAL FROM: DistrictCourtof the EleventhJudicial District, Inand forthe Countyof Flathead, TheHonorableLeifErickson, Judge presiding.

COUNSEL OF RECORD:

ForAppellant:

PatrickM. Springer, Kalispell, Montana

ForRespondent:

JamesC. Bartlett, Kalispell, Montana

Submittedon Briefs: Nov. 6, 1987
Decided: January 12, 1988 $1 ~iled?h?j 

## 12-jq 

# 6i 1Mr. Justice William E. Hunt, Sr., delivered the Opinion of theCourt.

Appellants appeal from a judgment and order of the District Court, Eleventh Judicial District, Flathead County, denying appellants' prayer for Rule 11 sanctions against respondentand imposing sanctions in favor of respondent. We affirm. Appellants raise five issueson appeal. 1. Did the District Court deprive appellants of property without due process in violation of the United StatesandMontana Constitutions? 2. Did the District Court otherwise err by ruling that appellants were required toprepare and conveyan easement to respondent? 3. Did the District Court abuse its discretion by adopting verbatim respondent's proposed findings of fact and conclusionsof law? 4. Did the court errby 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 sanctionson appellants? Respondent raised two issues ofhis 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 respondentCimino's liability for half the costs of the construction of an airstrip on propertyowned by appellants, the Searights,and adjacent to property the Searightshad sold to Cimino. OnMay 14

## , 1985

## , judgment

was entered in favorof the Searights. The contract for deed contained a provision that allowed Cimino the right to use the airstripand obligated the Searightsto 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 hewould not sign it. Cimino's attorney received a copy of the letter and was also told by the Searights' attorney that no easement wouldbe forthcoming. On July 29, 1986, respondent Cimino filed a motion to cause appellants to execute an airport easement. Murland Searight firedhis attorney onAugust 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 theMontana 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 respondentwas entered

on March 12, 1987, levying sanctions of $100 against the Searightson the Court's ownmotion. The Searights then made

amotion to alter or amend the judgmentand amotion for stay of executionwhich were denied. They appeal from the March 12order and fromdenialof their subsequentmotions.Before addressing the merits of the case we will turn

our attention to respondent's claim that appellants1motion to alter oramend and notice of appeal were untimely. The Searights made amotion 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 judgmentto serve thismotion. When notice is servedbymail the period for taking an action increases by three days. Rule 6(e)

## , M.R.Civ.P. The notice of the entry of the judgmentwasmailed onMay 4. Thisgave appellants untilMay 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.) Appellantsmailed their motion onMay 15. Service bymail is completed upon mailing. Rule 5(b), M.R.Civ.P. Therefore appellants1 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 statutoryperiod. Rule 5,M.R.App.P. Notice of appeal

was timely filed. We now address the merits and combineappellants' issues

nos. 1 and 2 as follows: Did the District Court deprive appellantsofproperty in violation of the due process clause in theMontana 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 isnotproperly 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 constitutionalright itmay be heard.This Court held in City of Missoula v. Mix (1950), 123 Mont. 365, 214 P.2d 212, that an easement is aproperty right protected by the constitutional guarantee against the taking of private property without just compensation. In cases of fundamental rights thisCourt willhear constitutional issues

on appeal for the first time. Montana Power Co. v. Fondren

(1987),737P.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. Thiswas done to the satisfactionofboth parties. The appellant, Murland, testified at the sanctions hearing that he had been willing to grant Cimino an easement all along for some 7or 8years. Itwas appellants' attorneywho drafted the easement. They can hardly claim that they have been unconstitutionallydeprived of theirproperty. Appellants ask thatwe find the DistrictCourt erred in ordering Searight to convey an easement to Cimino. There is some confusion as towhether an orderwas 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. Fora question to be reviewable, the error complained ofmust be founded on orbe borne outby the record,which should be in such form as to enable the reviewing court to determine what the error is. Francisv. Heidel (1937),104Mont. 580, 586, 68 P.2d 583, 585, quoting 4 C.J.S. Appeal and Error, 5 1154 (1937). It is the duty of counsel to preserve therecord 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 theparties inputting 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. ~nglin

(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 supportedby 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 amotion for Rule 11 sanctions was contained in their August 12, 1986 motion to dismiss respondent'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 onthe appellants' second motion for sanctions which was filed

on December 5, 1986. The District Court also misstated a fact in its conclusion of lawno. 6. In it, the court finds that the correspondence between Murland Searight and his attorney refusing Cimino's easementwas only produced at the request ofCimino's counsel. This isnot correct. A copy of this letterhad 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 DistrictCourt's decision. Appellant's fourth issue alleges the ~istrictCourt 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 sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need notbe verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it iswell grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the costof litigation.. 

# .

# . Rule 11,M.R.Civ.P. Appellants argue that respondent's motion to cause appellants to execute an easementwas not grounded in factor warranted by existing law. They argue that the motion was based on Rule 70,M.R.Civ.P. which calls for the enforcementof a judgment and no such judgment had been made. They also argue that the easement proposed was needless and inflanunatory and that the motion was calculated to frustrate appellants. The current Rule 11,M.R.Civ.P. is virtually identical to the federal rule. Sanctions under this rule have been rarely imposed in Montana resulting in little case law. Federalauthority indicates that theduty of the lawyer is to investigate both as to law and fact before filing a motion. The standard is that of reasonableness under the circumstances. Golden Eagle Distributing Corp. v. Burroughs Corp. (9thCir. 1986),801F.2d 1531, 1536. Because the rule mandates sanctions if violated, the duty of an appellate court is to review de novo the legal question ofwhether the specific conduct in questionviolated the rule. Golden Eagle DistributingCorp., 801 F.2d at 1538; Zaldivarv. City of Los Angeles (9th Cir. 1986), 780 F.2d 823, 828; Eastway Const. Corp. v. City of Mew York (2d Cir. 1985), 762 F.2d 243, 254

n. 7.Appellants are correct in their position that Rule 70, M.R.Civ.P. cannot be used as the basis for respondent's motion for an easement. Rule 70 is a civil contempt statute thatprovides: If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedientparty by some other person appointed by the court and the act when so donehas like effect as if doneby theparty. This Court can find no judgment that directs appellants to convey an easement to respondent, and respondent does not argue that there is one. This does not, however, defeat respondent's motion. There is subst-antialevidence on therecord that the appellantsagreed,at least superficially,to give respondent an easement. Cimino requested one several times over a period of 7 or 8 years and each time had been told he could have one. Yet when Cimino's attorney finally presented one, appellant responded to his own attorney in a letterwhich reads inpertinent part: In fact, the agreement does not contemplate the granting of any easement at all. If he is not contentwith the rights assured in the contract for deed, I am willing to execute a separate irrevocable license embodying the language of the Contract forDeed. I will notgrant him additional privileges or rights beyond those already agreed. This put Cimino's attorney in a difficult spot. Searights' attorney told Cimino's no easement would be forthcoming. Cimino's attorney could not contact Searight directly as he was still represented by counsel. It was reasonable to assume that the Searightswere reversing their position as to the granting of an easement. He could either do nothing or attempt to secure his client's position by taking action through the court. He chose the latter. Although Cimino'sattorney took action using an inappropriate rule, it was not unreasonable under the circumstances. We affirm theDistrictCourt. The appellants lastly appeal the District Court's impositionofRule 11 sanctions in the amount of $100. Using the same analysis discussed above,we hold that the courtdid not err. The purpose of Rule 11 is to reduce frivolous claims and motions. Appellants first raised the issue of sanctions in a motion to dismiss respondent's motion for easement. An easement agreeable to all was prepared by appellants' attorney and executed. Since appellant Murland testified he had beenwilling to grant an easement all along and thisonewas agreeable tohim, that shouldhave ended thematter. Yet on December 5, 1986,the appellants again filed a request for Rule 11 sanctions citing respondent's motion for an easement as itsbasis. The DistrictCourt found that the appellants had made contradictory statements concerning their willingness to grant an easement. Throughout this litigation the appellants have acted in a contradictory and inconsistent manner with regard to the easement. Once an easement that was agreeable to Searights, one that the Searights claim they were willing to give all along, was executed there was no basis for further action. We affirm the District Court's imposition of Rule 11 sanctions on appellants. Respondent has requested that we impose sanctions for a frivolous appeal under Rule 32, M.R.App.P. We decline. Where a reasonable ground for appeal exists no sanctions under Rule 32will be imposed. Erdman

### v. C & C Sales, Inc.

(1978), 176 Mont. 177, 184, 577 P.2d 55, 59. There was reasonable doubt as to the sufficiency of the findings of fact.Affirmed.