NO. 87-321 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

MURLAND W. SEARIGHT and VIRGINIA 

SEARIGHT, 

Plaintiffs and Appellants, 

-vsMICHAEL CIMINO, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick M. Springer, Kalispell, Montana 

For Respondent: 

James C. Bartlett, Kalispell, Montana 

Submitted on Briefs: Nov. 6, 1987 

Decided: January 12, 1988 

$1 ~iled?h?j 12 -jq 6i 1 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

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 case we will turn 

our attention to respondent's claim that appellants1 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 

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 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, quoting 4 C.J.S. Appeal and Error, 5 

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. ~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 

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 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 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 ~istrict 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 sign his 

pleading, motion, or other paper and state his 

address. Except when otherwise specifically 

provided by rule or statute, pleadings need not be 

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 is well 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 cost of litigation.. . . Rule 11, M.R.Civ.P. 

Appellants argue that respondent's motion to cause 

appellants to execute an easement was not grounded in fact or 

warranted by existing law. They argue that the motion was 

based on Rule 70, M.R.Civ.P. which calls for the enforcement 
of 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. 

Federal authority indicates that the duty 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. (9th Cir. 1986), 801 F.2d 1531, 1536. Because the rule 

mandates sanctions if violated, the duty of an appellate 

court is to review de novo the legal question of whether the 

specific conduct in question violated the rule. Golden Eagle 

Distributing Corp., 801 F.2d at 1538; Zaldivar v. 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 

that provides: 

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 disobedient party by some other 

person appointed by the court and the act when so 

done has like effect as if done by the party. 

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-antial evidence on the 
record that the appellants agreed, 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 

letter which reads in pertinent part: 

In fact, the agreement does not contemplate the 

granting of any easement at all. If he is not 

content with the rights assured in the contract for 

deed, I am willing to execute a separate 

irrevocable license embodying the language of the 

Contract for Deed. I will not grant 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 Searights were 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's attorney took action using an inappropriate 

rule, it was not unreasonable under the circumstances. We 

affirm the District Court. 

The appellants lastly appeal the District Court's 

imposition of Rule 11 sanctions in the amount of $100. Using 

the same analysis discussed above, we hold that the court did 

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 been willing to grant an easement all along 

and this one was agreeable to him, that should have ended the 
matter. Yet on December 5, 1986, the appellants again filed 

a request for Rule 11 sanctions citing respondent's motion 

for an easement as its basis. The District Court 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 32 will 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.