No. 95-133 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

WILBUR A. FADNESS, individually, 

and as Successor in Trust for 

Mildred H. Fadness, 

Plaintiff and Respondent, 

v. 

WILLIAM KUNTZ, III and 

ANNA DE LA CHAPELLE KUNTZ, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable Leonard H. Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Kuntz, III, Pro Se, Westport, New York 

For Respondent: 

Zane K. Sullivan and Leslae J. E. Dalpiaz; 

Sullivan & Tabaracci, Missoula, Montana 

Filed: 

Submitted on Briefs: March 7, 1996 

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

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter and West 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 due on a promissory note and 

punitive damages arising from defendant's fraudulent conduct in a 

contract to purchase real property. We affirm. 

We consider the following issues raised on appeal: 

1. Did the District Court deny Kuntz a fair trial by ordering 

him detained in the presence of the jury? 

2. Did the District Court err in not ruling on Kuntz'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 New York 

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 a directed verdict? 

8. Did the District Court err in not allowing Kuntz to make 

a motion for a new trial at the conclusion of the jury trial? 

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This case arises out of a dispute regarding 160 acres of land 

located near Wolf Point, Roosevelt County, Montana. In 1989, 

William Kuntz (Kuntz) responded to an advertisement for the 

property, owned by Wilbur and Mildred Fadness, and contacted the 

real estate agent, Dorothy Cody (Cody), who had the listing. The 

terms of the listing called for a $25,000 selling price with 

thirty-percent down with the balance financed by a contract for 

deed at 9% interest. In August of 1989, Cody prepared a buy-sell 

agreement and forwarded it to Kuntz in New York state. Kuntz made 

substantial alterations to the terms of the first agreement. 

Accordingly, Cody sent another agreement to Kuntz which he altered, 

signed and then forwarded directly to the Fadnesses. The Fadnesses 

signed the agreement. The buy-sell agreement was filed with the 

Clerk and Recorder of Roosevelt County. The altered agreement, 

provided for a $500 down payment, $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 and a payment of two points or $390. 

In November of 1989, the Fadnesses signed a warranty deed and 

the deed was not recorded until approximately one year later on 

November 4, 1990. Kuntz admitted that he added his wife's name, 

Anna De La Chapelle Kuntz, to the deed "while it was in escrow." 

The mortgage was filed in Roosevelt County on October 1, 1990. The 

provision providing for the interest on the outstanding balance had 

been lined through by Kuntz. 

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The balance on the note and mortgage was due ten months after 

closing, in August of 1991. At that time, Kuntz did not exercise 

his option of extending the note for an additional ten months. In 

fact, Kuntz did not pay any amount due on the note and mortgage and 

was in default. Around this time, the Fadnesses were contacted by 

Allen Sunukjian who introduced himself as an agent of Wolfpack 

Electronics, and attempted 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 Fadness died on December 31, 1991, 

and Wilbur Fadness was appointed her personal representative for 

purposes of this action. 

In April of 1992, Fadness filed his complaint to foreclose on 

the property and quiet 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 

and did 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 and mortgage to 

conform with the agreement of the parties. 

On March 10, 1995, the District Court entered final judgment 

ordering that the mortgage altered by Kuntz be reformed to reflect 

the 9% interest rate and awarded compensatory damages in the amount 

of $19,500, the balance due on the note. In a separate hearing 

following the jury verdict, the jury awarded, and the District 

Court approved, punitive damages in the amount of $32,000 

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attributable 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, Fadness was awarded $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 him the right to 

a fair trial by ordering him to be removed to the back of the 

courtroom during the punitive damages phase 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, he objects to the fact that he was punished in 

the presence of the jury. We note that the imposition of summary 

contempt and punishment is not regarded with favor, whether 

exercised immediately or after trial and it 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 summon a 

[party] before the bench and pronounce him guilty of contempt is 

not unlikely to prejudice [the party] .'I Sacher, 343 U.S. at 10. 

Nonetheless, the error may be 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 have been excused during the exchange between the judge and 

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the pro se defendant," the court also determined that under the 

facts of the case the error was harmless "as the evidence strongly 

supported the verdict and it is unlikely that the contempt finding 

affected the result." Davenuort, 454 S.E.2d at 537. 

We determine that the same is true in the instant case. Kuntz 

had been warned throughout trial that his conduct was unacceptable 

and had 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 

when you look through them, and it makes an undue 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 

one of the clients has come through with a bunch of junk 

like you have and caused nothing but court delays and 

trouble and time. 

Immediately before the judge held him in contempt Kuntz was warned 

that he was about to be held in contempt. The following exchange 

occurred: 

The Court: I've ruled now . . . 

Kuntz: I take an exception, Your Honor. I am not--- 

The Court: I don't want to hear anymore from you. 

Quiet! 

Kuntz: Are you going to give a rebuttal--- 

The Court: I'm going to have the Sheriff put you in jail 

if you don't shut up. 

Kuntz: Then why don't you do that? 

The Court: I will. 

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Kuntz: Well, then go ahead. 

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. 

The Court: Alright. Take him into custody and put him 

in the jail. Not in the jail, 

right back here in the pew--- 

just put him in custody 

Sheriff's officer: Alriyht. 

The Court: So that he can hear the proceedings. 

Kuntz: Thank you, Your Honor. 

The Court: You're welcome. 

Kuntz: I'm glad the jury understands how this case has 

been run. 

The Court: Put him in-- right there. That's good 

enough. 

Thus, from this exchange as well as other 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, we hold 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 

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received these files by the time of trial and Kuntz does not assert 

that he was prejudiced. Instead, he merely asserts that suitable 

arrangements should have been resolved before trial. While this 

may indeed be true, Kuntz has not shown that he was prejudiced by 

failing to obtain the files at an earlier date. See George v. Fish 

Creek Irrigation Co. (1959), 135 Mont. 490, 495, 342 P.2d 738, 741. 

Accordingly, we hold that based on Kuntz'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), 245 Mont. 470, 474-75, 803 P.2d 601, 

604). This Court has held that "[iIn the usual case, questions of 

admissibility of evidence are left largely to the sound discretion 

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), 221 Mont. 

67, 86, 721 P.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 

a prior 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 

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was error to exclude evidence that Fadness was also suing the real 

estate broker, Cody, and the closing agent, Roger Wimmer, in 

another suit. He asserts that this evidence related to the 

"credibility and the 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 on the note. 

As to 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 was relevant and it is within the broad discretion of 

the district court to exclude irrelevant evidence. Wailer, 885 

P.2d at 1310. 

Likewise, it was within the broad discretion of the court to 

exclude evidence of the pending suit against Cody and Wimmer. We 

note that Kuntz fails to cite to where in the record he attempted 

to introduce evidence of the suit. In any event, Kuntz had the 

opportunity to cross-examine Cody. Finally, as to the letter from 

Mildred Fadness, the District Court determined that it was 

cumulative and that Kuntz had failed to produce it earlier in 

discovery. The District 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 

was no new information in the document and that the court was "not 

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going to let [him] go on all afternoon on this 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 assumes that 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 New York 

pattern jury instructions and interrogatories offered by Kuntz? 

Our standard of review relating to discretionary trial court 

rulings, such as the 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 and seven 

interrogatories proposed by Fadness as well as New York pattern 

instructions and interrogatories submitted by Kuntz. Even though 

the instructions and interrogatories submitted by Kuntz did not 

comply with Montana's District Court Rules, the court considered 

them and gave New York 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 a list of 

questions relating to Kuntz's interrogatories to the court for 

clarification. The court told Kuntz that: 

I intend to advise the jury that they need not consider 

nor answer the interrogatories propounded to them by the 

defendant, unless the defendant can show me or tell me 

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why 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 why these questions are 

relevant. 

Kuntz made no such 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. The court was acting within its discretion in refusing 

Kuntz's offered instructions and interrogatories and in 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 made an improper reference 

to the price Kuntz paid for the former UBC Lumberyard in Wolf 

Point. The court directed Kuntz that "[nlow I'm not going to let 

you get up here and give a speech. You have not made a definite 

objection. [Plaintiff's counsel] [ylou may proceed." Furthermore, 

we note that in objecting, Kuntz was able to correct any 

misstatement of the purchase price. We determine 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. A hearing was held to 

determine the amount of fees and costs due to Fadness. At the 

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hearing, 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. The District Court also stated that "Mr. Kuntz, 

I think your actions in this matter are the very things that made 

this case so complicated." Thus, from the record it is clear that 

the District Court considered all of the evidence and testimony 

presented and did 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 a directed verdict? 

Kuntz asserts that the District Court improperly denied his 

motion for a directed verdict. A motion for a directed verdict is 

properly granted only in the complete absence of any evidence to 

warrant submission to the jury, and all inferences of fact must be 

considered in the light most favorable to the opposing party. If 

the evidence viewed in a light most favorable to Fadness indicates 

that reasonable men could differ as to the conclusions drawn from 

the evidence a directed verdict is not proper. Guertin v. Moody's 

Market (1994), 265 Mont. 61, 69, 874 P.2d 710, 715. From the 

record, and from the jury's verdict, it is apparent that there was 

sufficient evidence to overcome Kuntz's motion for a directed 

verdict. Accordingly, we hold that the District Court did not err 

in denying Kuntz's motion for a directed verdict. 

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8. Did the District Court err in not allowing Kuntz to make 

a motion for a new trial at the conclusion of the jury trial? 

Kuntz asserts that he was not allowed to make a motion for a 

new trial in court because he was in the custody of the sheriff at 

the close of the case. We note that pursuant to Rule 59(b), 

M.R.Civ.P., a party has ten days after the service of notice of 

entry of judgment within which to file a motion for a new trial. 

Accordingly, Kuntz was not prejudiced because he was not able to 

move for a new trial in court. Kuntz had ten days after the 

service of notice of entry of judgment to move for a new trial. 

Under Rule 59(a), M.R.Civ.P., Kuntz was required to "state 

with particularity the grounds [for the motion for a new trial], it 

not being sufficient merely to set forth the statutory grounds. . 

11 Here, Kuntz made no such motion and did not articulate any 

particular grounds whatsoever to the District Court. In fact, 

Kuntz did not even file a motion for a new trial with the district 

court. Rather, Kuntz asserts that "it would have been an [sic] 

useless exercise for Defendant to reduce to writing, a Motion which 

the District Judge would not allow to be made in Court." 

We do not agree with Kuntz's assertion that it would have been 

a "useless exercise" to file a motion for a new trial. Kuntz's 

obligation to comply with Rule 59(b), M.R.Civ.P., was not suspended 

merely because he was dissatisfied with the District Court's 

rulings. In failing to properly make a motion for a new trial, 

Kuntz is deemed to have waived any objection. Accordingly, we hold 

that Kuntz waived this issue on appeal due to his failure to file 

a motion for a new trial pursuant to Rule 59, M.R.Civ.P., with the 

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District Court. 

Affirmed. 

We concur: 

us ices 

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