No. 95-133 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

WILBURA. FADNESS,individually, and as Successor in Trust for Mildred H. Fadness,

Plaintiff andRespondent,

v. WILLIAM KUNTZ,III and ANNADELACHAPELLEKUNTZ,

Defendants andAppellants.

APPEALFROM: District Court of the Fifteenth Judicial District,

In andfor the County of Roosevelt, TheHonorable Leonard H. Langen, Judge presiding.

COUNSELOFRECORD:

For Appellant: William Kuntz, III, Pro Se, Westport, NewYork

For Respondent: ZaneK. Sullivan and Leslae J. E. Dalpiaz; Sullivan &Tabaracci, Missoula, Montana

Filed: Submitted onBriefs: March 7, 1996 Decided: March 28, 1996Justice W.William Leaphart delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished by its filing asapublic document with the Clerk of the SupremeCourt andby areport of its result to State Reporter andWest Publishing Company. William Kuntz, pro se, appeals from the judgment of the Fifteenth Judicial District Court, Roosevelt County, awarding the plaintiff the principal and interest dueonapromissory note and punitive damagesarising from defendant's fraudulent conduct in a contract to purchase real property. Weaffirm. Weconsider the following issues raised onappeal: 1. Did the District Court denyKuntz afair trial byordering him detained in the presence of the jury? 2. Did the District Court err in not ruling onKuntz's motion that his former counsel turn over his file? 3. Did the District Court err in excluding certain evidence and exhibits offered by Kuntz? 4. Did the District Court err in rejecting certain NewYork pattern jury instructions and interrogatories offered by Kuntz? 5. Did the District Court err in overruling Kuntz's objection to statements in the closing argument relating to the "lumberyard property?" 6. Did the District Court award excessive fees to Fadness? 7. Did the District Court err in not granting Kuntz's motion for adirected verdict? 8. Did the District Court err in not allowing Kuntz to make amotion for anewtrial at the conclusion of the jury trial?

2This case arises out of adispute regarding 160acres of land

located near Wolf Point, Roosevelt County, Montana. In 1989, William Kuntz (Kuntz) responded to an advertisement for the property, ownedby Wilbur andMildred Fadness, and contacted the real estate agent, Dorothy Cody (Cody), whohadthe listing. The terms of the listing called for a $25,000 selling price with thirty-percent downwith the balance financed by a contract for deed at 9%interest. In August of 1989, Codyprepared abuy-sell agreement andforwarded it to Kuntz in NewYork state. Kuntz made substantial alterations to the terms of the first agreement. Accordingly, Codysent another agreement to Kuntz which healtered, signed andthen forwarded directly to the Fadnesses. TheFadnesses signed the agreement. Thebuy-sell agreement was filed with the Clerk and Recorder of Roosevelt County. The altered agreement, provided for a$500downpayment, $5,000 cash at closing with the balance of $19,500 financed for ten-months at 9%interest. The agreement also contained a provision, which Kuntz added, that allowed for a ten-month extension upon payment of the accrued interest due andapayment of two points or $390. In November of 1989, the Fadnesses signed awarranty deedand the deed was not recorded until approximately one year later on November 4, 1990. Kuntz admitted that he added his wife's name, AnnaDeLa Chapelle Kuntz, to the deed "while it was in escrow." The mortgage was filed in Roosevelt County onOctober 1, 1990. The provision providing for the interest onthe outstanding balance had been lined through by Kuntz.

3Thebalance onthe note andmortgage wasdueten months after

closing, in August of 1991. At that time, Kuntz did not exercise his option of extending the note for anadditional ten months. In fact, Kuntz did not payanyamountdueonthe note andmortgage and

wasin default. Around this time, the Fadnesses were contacted by Allen Sunukjian who introduced himself as an agent of Wolfpack Electronics, andattempted to purchase the Fadness/Kuntz mortgage at a discount. After the Fadnesses declined this offer, they learned that Wolfpack Electronics was owned and controlled by Kuntz, their mortgagee. Mildred Fadnessdied onDecember 31, 1991, andWilbur Fadness was appointed her personal representative for purposes of this action. In April of 1992, Fadness filed his complaint to foreclose on the property andquiet title. Because the mortgage and note had been altered by Kuntz, Fadness' ability to foreclose on the property was limited to only Kuntz's l/2 interest in the property anddid not extend to his wife's l/2 interest. Accordingly, Fadness included a claim for fraud, either actual or constructive, and requested that the trier of fact reform the note andmortgage to conform with the agreement of the parties. OnMarch 10, 1995, the District Court entered final judgment ordering that the mortgage altered byKuntz bereformed to reflect the 9%interest rate andawarded compensatory damagesin the amount of $19,500, the balance due onthe note. In aseparate hearing following the jury verdict, the jury awarded, and the District Court approved, punitive damages in the amount of $32,000

4attributable to Kuntz's conduct constituting actual fraud. 1n

another hearing regarding attorney's fees, the District Court awarded Fadness $16,013.95 in attorney's fees and $3,117.82 in costs. In all, Fadnesswasawarded $74,898.24. Kuntz appeals from these determinations. 1. Did the District Court deny Kuntz a fair trial by ordering him detained in the presence of the jury? Kuntz asserts that the District Court denied himthe right to

a fair trial by ordering him to be removed to the back of the courtroom during the punitive damagesphase of the proceedings as punishment for contempt. Fadness responds that the District Court is empowered to punish contempt summarily when committed in the presence of the court. Kuntz does not object to the order of contempt, rather, heobjects to the fact that hewas punished in the presence of the jury. Wenote that the imposition of summary contempt and punishment is not regarded with favor, whether exercised immediately or after trial andit is particularly tenuous in the presence of the jury. Sacher v. United States (19521, 343 U.S. 1, 8-11, 72 S.Ct. 451, 455-56, 96 L.Ed. 717. "To summona [party] before the bench andpronounce him guilty of contempt is not unlikely to prejudice [the party] .'I Sacher, 343 U.S. at 10. Nonetheless, the error maybe harmless in certain circumstances. Davenport v. State (Ga. Ct. App. 1995), 454 S.E.2d 536, 537. In Davenoort, the defendant, pro se, was adjudged to be in contempt of court while in the presence of the jury. Davenoort, 454 S.E.2d at 537. While the DavenDOrt court noted that the jury "should havebeenexcused during the exchange between the judge and 5the pro se defendant," the court also determined that under the

facts of the case the error washarmless "as the evidence strongly supported the verdict andit is unlikely that the contempt finding affected the result." Davenuort, 454 S.E.2d at 537. Wedetermine that the sameis true in the instant case. Kuntz hadbeenwarned throughout trial that his conduct wasunacceptable andhad also been held in contempt for failing to participate in a conference call prior to trial. The court stated to Kuntz that: You have complied with none of the rules we have in connection [with discovery]

. . instead you sent a whole volume of papers that is almost impossible to read whenyou look through them, andit makesanundue burden on [plaintiff's counsel] and on me, and I dislike it. This whole trial has been one big mess as far as discovery is concerned, mainly because of you. I've tried hundreds of lawsuits. I'm an experienced trial lawyer

. . this is the worst case I've ever seen, where oneof the clients has comethrough with abunch of junk like you have and caused nothing but court delays and trouble andtime. Immediately before the judge held him in contempt Kuntz waswarned that hewasabout to be held in contempt. Thefollowing exchange occurred:

TheCourt: I've ruled now

. . . Kuntz: I take anexception, Your Honor. I amnot--- The Court: I don't want to hear anymore from you. Quiet! Kuntz: Are you going to give arebuttal--- TheCourt: I'm going to havethe Sheriff put youin jail if you don't shut up. Kuntz: Thenwhydon't youdothat? The Court: I will.

6Kuntz: Well, then goahead.

The Court: If you keep talking. Kuntz: Then go ahead now in front of the jury, Your Honor, The Court: Alright. Where is the Sheriff? Kuntz: He's right there. Clerk of Court: Right there. TheCourt: Alright. Takehim into custody andput him in the jail. Not in the jail, right back here in the pew--- just put him in custody

Sheriff's officer: Alriyht. TheCourt: Sothat he canhear the proceedings. Kuntz: Thank you, Your Honor. TheCourt: You're welcome. Kuntz: I'm glad the jury understands howthis case has been run. The Court: Put him in-- right there. That's good enough. Thus, from this exchange aswell asother portions of the record, it is apparent that Kuntz goaded the court into adjudging him guilty of contempt. As in Davenuort, the evidence strongly supports the verdict and the award of punitive damages. Accordingly, wehold that adjudging Kuntz guilty of contempt in the presence of the jury was harmless error in the context of this

case.2. Did the District Court err in not ruling on Kuntz's motion that his former counsel turn over his file? Kuntz asserts that the District Court did not rule on his motion that his former counsel deliver Kuntz's file. Kuntz

7received these files bythe time of trial andKuntz does not assert

that hewasprejudiced. Instead, hemerely asserts that suitable arrangements should have been resolved before trial. While this mayindeed betrue, Kuntz has not shownthat hewasprejudiced by failing to obtain the files at anearlier date. SeeGeorge v. Fish Creek Irrigation Co. (1959), 135Mont. 490, 495, 342P.2d 738, 741. Accordingly, wehold that based onKuntz's failure to demonstrate prejudice, the District Court did not err in failing to rule on Kuntz's motion. 3. Did the District Court err in excluding certain evidence and exhibits offered by Kuntz? Our standard of review relating to discretionary trial court rulings, including the admission of evidence at trial, is whether the district court abused its discretion. Hislop v. Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 390 (citing Steer, Inc. v. Department of Revenue (1990), 245Mont. 470, 474-75, 803P.2d 601, 604). This Court hasheld that "[iIn the usual case, questions of admissibility of evidence are left largely to the sounddiscretion of the trial court, subject to review only in cases of manifest abuse." Wailer v. Hayden (1994), 268 Mont. 204, 210, 885 P.2d 1305, 1309 (citing Britton v. Farmers Ins. Group (1986), 221Mont. 67, 86, 721P.2d 303, 315). Kuntz asserts that it was error for the District Court to refuse evidence relating to the sale of the subject property from

aprior owner, Thelma Berglund, to Kuntz's seller the Fadnesses. He argues that at the time of the sale to him, title to the property was in Berglund's name. Further, Kuntz asserts that it 8waserror to exclude evidence that Fadness wasalso suing the real

estate broker, Cody, and the closing agent, Roger Wimmer, in another suit. He asserts that this evidence related to the "credibility andthe underlying dispute, ie [sic] the closing of the Escrow." Kuntz complains that the District Court erred in not admitting an unsigned letter written by Mrs. Fadness. These letters were between Kuntz and the Fadnesses and related to the delinquency onthe note. Asto the evidence regarding the Berglund to Fadness contract, the District Court concluded that it was inconsequential to the foreclosure and fraud actions. Kuntz failed to demonstrate that this evidence wasrelevant andit is within the broad discretion of the district court to exclude irrelevant evidence. Wailer, 885 P.2d at 1310. Likewise, it waswithin the broad discretion of the court to exclude evidence of the pending suit against CodyandWimmer. We note that Kuntz fails to cite to where in the record heattempted to introduce evidence of the suit. In any event, Kuntz had the opportunity to cross-examine Cody. Finally, asto the letter from Mildred Fadness, the District Court determined that it was cumulative and that Kuntz had failed to produce it earlier in discovery. TheDistrict Court aptly noted that the document could be excluded solely for Kuntz's discovery abuse. Nonetheless, the court allowed Kuntz to argue why the letter was important to Kuntz's defense. Ultimately, the court determined that the there

wasnonewinformation in the document andthat the court was "not

9going to let [him] goonall afternoon onthis stuff." gee wailer,

885 P.2d at 1309 (citing Rule 403, M.R.Evid.). As this Court stated in Wailer: The notion that a decision by the district court is discretionary assumes there is no absolutely correct answer for every evidentiary issue. It assumesthat the decision is a judgment call best left to the person closest to the case--the district judge. Waller, 885 P.2d at 1310. Similarly, in the instant case, the District Court's judgment was exercised within that permissible range best left to the district court. 4. Did the District Court err in rejecting certain NewYork pattern jury instructions and interrogatories offered by Kuntz? Our standard of review relating to discretionary trial court rulings, such asthe giving of jury instructions, is whether the district court abused its discretion. Hisloo, 862 P.2d at 390. Here, the District Court considered fifteen instructions andseven interrogatories proposed by Fadness as well as NewYork pattern instructions and interrogatories submitted by Kuntz. Eventhough the instructions and interrogatories submitted by Kuntz did not comply with Montana's District Court Rules, the court considered them and gave NewYork Pattern Instruction No. 81 over Fadness' objection. In addition, the court submitted several of Kuntz's interrogatories to the jury. During the jury's deliberations, the jury submitted alist of questions relating to Kuntz's interrogatories to the court for clarification. Thecourt told Kuntz that: I intend to advise the jury that they need not consider nor answer the interrogatories propounded to thembythe defendant, unless the defendant can showmeor tell me 10why the answers to these questions can be relevant

concerning any matter relating to this case. 1'11 ask you to tell--put in the record whythese questions are relevant. Kuntz madenosuch showing. Accordingly, the court instructed the jury to cease in its attempt to answer Kuntz's interrogatories. Thus, from the record, it is clear that the District Court carefully considered the instructions and interrogatories offered by Kuntz. Thecourt wasacting within its discretion in refusing Kuntz's offered instructions andinterrogatories andin instructing the jury not to answer several of Kuntz's irrelevant interrogatories. 5. Did the District Court err in overruling Kuntz's objection to statements in the closing argument relating to the "lumberyard property?" Kuntz asserts that Fadness' counsel madeanimproper reference to the price Kuntz paid for the former UBCLumberyard in Wolf Point. Thecourt directed Kuntz that "[nlow I'm not going to let you get up here and give a speech. Youhave not madeadefinite objection. [Plaintiff's counsel] [ylou may proceed." Furthermore,

we note that in objecting, Kuntz was able to correct any misstatement of the purchase price. Wedetermine that the District Court did not abuse its discretion in overruling Kuntz's objection to statements regarding the "lumberyard property." 6. Did the District Court award excessive fees to Fadness? Under the terms of the mortgage, Fadness is entitled to costs and reasonable attorney's fees. Kuntz asserts that the fees and costs awarded against him were excessive. Ahearing was held to determine the amount of fees and costs due to Fadness. At the 11hearing, Kuntz offered the testimony of witnesses regarding the

fees charged by other attorneys in the area in an attempt to challenge the fees requested by Fadness' counsel. During the hearing, the court also questioned the fees and reduced the amount of fees and costs for travel to Wolf Point as well as the amount of fees requested for the deposition of real estate agent Cody. TheDistrict Court also stated that "Mr. Kuntz, I think your actions in this matter are the very things that made this case socomplicated." Thus, from the record it is clear that the District Court considered all of the evidence and testimony presented anddid not abuse its discretion in its award of costs and attorney's fees. 7. Did the District Court err in not granting Kuntz's motion for adirected verdict? Kuntz asserts that the District Court improperly denied his motion for adirected verdict. Amotion for adirected verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury, andall inferences of fact must be considered in the light most favorable to the opposing party. If the evidence viewed in alight most favorable to Fadness indicates that reasonable mencould differ asto the conclusions drawn from the evidence adirected verdict is not proper. Guertin v. Moody's Market (1994), 265 Mont. 61, 69, 874 P.2d 710, 715. From the record, andfrom the jury's verdict, it is apparent that there was sufficient evidence to overcome Kuntz's motion for a directed verdict. Accordingly, wehold that the District Court did not err in denying Kuntz's motion for adirected verdict. 128. Did the District Court err in not allowing Kuntz to make

amotion for anewtrial at the conclusion of the jury trial? Kuntz asserts that hewasnot allowed to makeamotion for a

newtrial in court because hewasin the custody of the sheriff at the close of the case. Wenote that pursuant to Rule 59(b), M.R.Civ.P., aparty has ten days after the service of notice of entry of judgment within which to file amotion for anewtrial. Accordingly, Kuntz wasnot prejudiced because hewas not able to

move for a new trial in court. Kuntz had ten days after the service of notice of entry of judgment to movefor anewtrial. Under Rule 59(a), M.R.Civ.P., Kuntz was required to "state with particularity the grounds [for the motion for anewtrial], it not being sufficient merely to set forth the statutory grounds.

. 11 Here, Kuntz madeno such motion and did not articulate any particular grounds whatsoever to the District Court. In fact, Kuntz did not even file amotion for anewtrial with the district court. Rather, Kuntz asserts that "it would have been an [sic] useless exercise for Defendant to reduce to writing, aMotion which the District Judge would not allow to bemadein Court." Wedonot agree with Kuntz's assertion that it would have been

a "useless exercise" to file amotion for a newtrial. Kuntz's obligation to comply with Rule 59(b), M.R.Civ.P., wasnot suspended merely because he was dissatisfied with the District Court's rulings. In failing to properly makeamotion for anewtrial, Kuntz is deemedto havewaived anyobjection. Accordingly, wehold that Kuntz waived this issue onappeal dueto his failure to file

amotion for anewtrial pursuant to Rule 59, M.R.Civ.P., with the 13District Court.

Affirmed.

Weconcur:

us ices

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