No. 02-172 [NTi-ltr:SLJPKEMECOGKT OF THE STATE OF R.lONT.ANA 2002 IT 297N

and ROE GREGORY, SR..

. .. kc 

## 2 ,,q, Petitioner and Appellant, .tiiiJ
V. ELI SPAYNAGEL,JR., and JE.4N K. SPANNAGEL,his wife. Respondents and Respondents

APPEAL FROM: District Court of the Sixteenth .ludicial District, In and for the County of Rosebud, The Honoral~le Joe L. Hegel, Judge presiding.
COUNSEL OFRECORD: For Appellant: Ron Gregory, Sr. (pro se), Forsylh. TLZontana For Respondents: Geoffrey R. Kcller, Matovich Kc Keller, P.C., Billings, Montana Sub~nitted on Briefs: Juire 6, 2002

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### 75 2. Did the District C'ourt abuse its discretion when it affirmed the award of arrorney fees and iniposcd 

### Rule I1 sanctions against Ron Gregory, Sr.'? FACTIJAL ANDPROC:EDI,!RAL BACKGROI!UD *6 On July28, 1907,Ron Gregory,

### Jr.,prrrchased approximately 5,828 acres ofproperty
on adjacentparcels fromXIentLand Corporation. Apparently Grcgory. Jr., and Grcgory,Sr., purchased this property as part of ajoint venture to develop the property for ranching and residential purposes. 7 Shortly after moving onto the property, a dispute arose between the Gregorys and Spannagelsregarding road access to the Gregoryproperty. There were two main routes for
access to thc Gregory land. The first, a gravel road that lvinds through the Gregory parcel, exits at the north end ofthe Gregoryparcel and continues fortwo niilcs no12hwhere itpasses under Interstate Elighway 94. The height of vehicles which can pass under 1-94is limited. The second, "Reservation Creek Road," is a county road that runs north to 1-94 and lies itnmcdiately to thc \vest of the parties' property on "Section 13." To access the Gregory parcel by way of the second road-known as the "well roadw--vehicles must cross over the western half of Section 13, which the Spannagels own,to reach the eastern half of Section 13,which forms part of the Gregory property. "8 i The Gregorysbegan developingtheir parcel, and traversed the "well road" on scveral occasions to deliver materials to the Gregory parcel. M'hile some ofthcuse was permittedl eventually, the Spannagels objected to the use and delivered a Criminal Trespass Yotice to the Gregorys on October 

### 10, 1907,warning them of civil and criminal sanctions for fi~l-theruse of tlic "well road" on the westem half of Section 13. Gregorys filed a pclilion for tietiaratoryrelief and sought aTRO arrd isijuilcrion againsttile Spannagels onXoveinbcr 20, 1907. The District Cou~? initially granted the TRO. However, after Spannagels filed a motion to dissolve the TRO on Xovember 24, 1097. the court held a heariug on Uovember 25, 1997, modified the TRO temporarily after the hearing, and later quashed the TRO on December 9, 1097. Gregorys requested reconsideration on I>ecember 2") 1097, and Spa~lnagels filed a timely response. The District Court eventually denied reconsideratio11
over one year later on January 1 1, 19%'). 19 Spannagels then filed a motion for attorney fees on January 15, 1999, pursi~artt o 

## 5 27-19-306, MCA. Shortly thereafter, Gregorys amended their petitiorl for declaratory judgment, and alleged, as an altenrate theory, a right to prescriptive use of tlte "Quist homestead road." In its November 29, 1990, Memora~~dum and Order, the District Court concluded that Ciregorys failed to timely respond to Spannagels motion for fees and otherwise concluded that the Spannagels deserved fees on the merits of their successful defense against the 'TKO. 711 0 On January 20, 2000, Gregorys n~oved to dismiss their amended petition without prejudice, On Jasiuary 31, 2000, one of Ciregorys' attorneys moved to withdraw from representation at Gregory, Sr.'s, request and Gregory, Sr., appeared without counsel at a hearing and presented and filed a motion to the court on behalf ofhis son and himself to sct asidethe District Cot~rt's Nove~nher 29, 190") or-dcrgranting attorney feesto the Spannagels. C;regory, Sr.,claimed thzitpursuant to Rule (jO(b), M.R.C'iv.P., there were sufficient groundsto set tile order aside, including "newly-discovered e.~ idence"oi'rhe "Quist homestead road" cascnler.it a~rd scvcral alicgations that Spar~nagels comn~ittcd fraud and made fi-audtiicnr representationsbeforethecourtduringthe TROhearings and during settlementnegotiatiosis. Spannagels opposed themotion, contended that Gregory, Sr.. was not pel-tnittedto represent Ciregot-y,Jr., that rhc Quist easement was irrelevant to the TRO issue, that the motion was untimely, and that no settlement agreement had everbeen reached. 711 Spannagelsrequested an opportunity to take the deposition of Gregory?.lr., who was absent fromtheseproceedings, and Gregory, Sr., filed an objection on his son's behalf, noting that his son was in Hong Kong and unavailable for the deposition. Gregory, Jr., st~bmitted
a letter to the court indicating his wisl-,tllat Grcgory, Sr.,represent him as "spokesman" for the family arrd pursuant to his power of attorney. 7112 On February 9,2000,Gregorys' remaining counsel withdrew from representation. On February 11, 2000, Grcgory, 

### Sr., filed a reply to the Spannagels' response to the Grcgorys' motion to set aside attorney fees. On February 14, 2000, (iuegory, Sr., tiled a motion to prohibit taking Gregory. Jr.'s, deposition the next day, and neithcr Gregory, Jr., or Gregory, ST.,appeared at the deposition. 011 February 29, 2000, the Spa~lnagels moved to prohibit Gregory, Sr.. from the unauthorired practice of law. 7113 The District Court considered the pending motions and on Deccmber 3,2001.issued

a blemorandunr and Ordcr Regarding Attorney Fees, Motion to f>isrniss and OtherPendi1,g Motions. The District C'o~rrt affirmed its earlier atvard 

### ofattorney fees,concluded there was
110settletnent agreement and that none of Gregory, Sr.'s, contentions were meritorious. Itfound that his motion to set the award aside was ti-ivoious, and warded attorney fees for dei'cnding against that motion. The court dcterrnincd that Gregory. Sr., cngagcci in the unlawful practicc of law by representing Gregory, Jr. The court ordered that Gregorys be jointly and severally liable for S3565.54 of attorney fees for defending against the 

### TRO,that Gregory, Sr.. represent only his own interests, and also awarded attorney fees in the amount of $2328.80 for having to defend against the motion to set aside. STANDARD 

### OF REVIEW 114 When reviewing a district court's order granting or denying injunctive relief, v-e determine whether the court abused its discretion. 

### S~veet (;riiss Farn2.s v. 

### Ho(lrd ufCo~int;l.. Conllrss. 2200 

### f)MT 147, 

## 7 20, 300 Mont. 66, 

## "1 22, 2 P.3d 825, 

## '1 20. We review a district court's findings of fact to determine whether the court's findings are clearly erroneous. 

### G~ttJzrie 1,. Hurdj,,2201 

### .MT 122, 

## !i 24, 305 Mont. 367,1! 24, 28 P.3d 467,Tj 24. We review a district court's conclusions of law for correctness. 

### Curbor1 

### Counv 1). 

### C'nion Reserve Coed 

### Cb., Irzc. (1995)?271 Mont. 450, 46") 898 

### P.2d 680, 680. When a district court concludes
a violation ofRlrle 11 M.ti.Civ.P.,occurred, we will reverse only where there is a n~anifest abuse of discretion. 

### t;jelsratl v. State. 

### Tllro2rgiz Dept. of

### Hig111vcly.s (1994), 267 Mont. 211, 226, 883 P.2d 106, 115, DISC~SSIOS 

### ISStlE I ql5 Did the District Cotrrt err when it detcrmincd that Ron Gregory, Sr., unlawfullq~ practiced law'?ft 10 'ihe District Court concluded that itwas appropriate to strike motions and picadings filed by C;rcgov9 Sr., on bchaif ofiiregory,Jr., sincc Gregory. 

### Sr., is not a iicerrscd altornq

### in 'Llnntena. Grcgcqv, Sr., contends that he represents a "cornmon carrse" and acts for tile "benefit ofthe entire Gregory Family," and requests that we distinguish H'eczvcr 

### v. LnivFin11 ~f Gr(zyhill,

### et 01. (1990), 246 Mont. 175, 

### 803 P.2d 1089. 117 Section 37-61-210: 

### MCA, provides that one who practices law in court without a license is guilty of contempt of court. We concluded in 

### Weaver that a husband could not appearin court on behalf ofhis wife to prescnt her claims as a plaintiff. PVeirr~cr, 246 Mont. at 178, 803 P.2d at 1091. tlere, Gregory, Sr., appeared at the District Court and filed pleadings on behalf of his son Gregory, 

### Jr. Gregory-, Sr., admits that he has no license to practice la\v. We findthat the District Court did not enwhen itprohibited Gregory, Sr., from representing Gregory. Jr. We also limit this appeal to Gregory, Sr.'s, interests sinceGregory, Jr., did not appeal any decision orjudgment ofthc District Court. ISSbE 2 

### 1118 Did the District Court abuseits discretion when it affirmed the awardofattorney fees and imposed Rule 1

### I sanctions against Ron Gregory, Sr.? 

## 7 I9 The District Court concludedthat there was no basis for setting aside the previouslyawarded attorney fees. It foundthat thepartics had not reacllecl an agreement to waive those fees and that Gregory, Sr.'s, allegation regarding the Quist easement was irrelevant to the prior defense against the TKO. 'The court further concluded that the Quist casement was 

### irrelevant since Gregoryshad preb-iously moved to dismiss its stmendedpetition claiming the

7Qriist easement. The District i:ourt concluded that the motion was frivoious and without merit, violated liulc !1, 

### M.R.Cit-.P.; and a\\ardcd attorney fees to Spanitageis pursuailt to that mle. 720 On appeal, Gregory, Sr., contends that the motion to set aside was not frivolous because ofthe Quist easement evidence and that the District Court erred when it declined to constder the alleged fraud perpetrated by the Spannagels during atid subsequentto the TKO hearing. Finally, Gregory, 

### Sr., contends that the Dtstrrct Court erred u hen rt found that the Spannagels did not breach a settlement agreement with the Gregotys, which included a provision that the Spannagelswould waive their claim for attorney fees incurred in defense of the TRO. 7121 Spa~inagels note that Gregory, Sr., does not challenge the reasonableness of the Sees and ask that thts Court affirm the amount of the attonley fees if re affirm the avard of attorney fees. Spannagels also contend that the award of attorney fees \vas authorized pursuant to 

## 3 27-19-306, MCA, and our decision in iblartu 

### v. Sinirll (1981j, 191 Mont. 179, 622 P.2d 1011. Spannagels Surthercontend that the District Court's conclusions regarding the Quist easetilent claims Lvere correct since that info~mation was available at the time of the TRO,wasneverpresented atthe 1RO hearing despitethe availabilityofthat inforination, and is irrele~ant bccaitse the amard of attorney fees relates to the successful defense agalnst the TRO and uasnot based on the ultrtnate malts ofthe case. Spannagels also contend that
no settlement agtcert-icntu asreached andthat even t ftherchad been at1 agreemerrr,<iregorphave not pcrforrned their part ofthecontract and should not be entitled to claim the benefits of ihc a& (rreernent. 722 We haverecognizedthat "attorneyfees andcostsare recoverable under section 27- 19- 306. MCA, as elements ofthe damages sustained by reason of the injunction 

### . . . ." ~tt'urta~ 191Mont. at 187,622P.2d at 1015-16. Our decision inMarta topermit recovery of attorney fees incurred to defend against an injunction is consiste~it with the purpose of 

## 8 27-10-306, MCA, to compensate for "costs and damages that may be incurred or suffered by any party who is found to havebeen wrongfi~lly enjoined orrestrained." Section 27-19-306(1 j, MCA. it is without dispute that Spannagels successfully had the TRO set aside and are entitled to attorney fees, notwithstandiltg Gregory, Sr.'s, remaining contentions. 1123 We first conclude that Gregory, Sr.'s; "newly-discovered" cvidence claim is without merit and irrelevant to the issueofattorney fees. The "Quist easement" doesnot evenpertain to the same road for which the TRO was sought and, in any event, Gregory, Sr., has moved to dismiss his Quist casement claim and is precluded from further proof of that claim. ':24 Nor are we persuaded by Gregory; Sr.'s, contention that Spannagclscommitted fraud when they sought to set aside the 'TRO. Gregory Sr.'s, fraud allegations are based on a scrivener's error in the original criminal trespass notice sent by the Spannagcls, testimony about the exact dimensions of the access under 1-04, and the question of whether or not Charles Quistwas a "ltomesteader." These alleged frat~dulerir statementswere all i~nunaterial to the LlistrictCourt'sdecision to quash the 

### 'T'RO, and were orcould have been clarifiedupon propcr cross-examination and presentation of contrary testimony by Gregorys."25 We further co~iciude tliat rhe District Court did riot err when 

### i~ ibund that there "was ncve1.a settlenientagrcemcnt." 

### Gregory? 

### ST., Iias notprovided a scttlernent agrcelnent signed bc both partlcs, but contends that Spannagels agreed to walvc the attorney fees tn a Icttel dated April 27. 199") axid that Gregory, Sr.. accepted the offer in his June 25, 1999. letter. 'The ,,%priI 27, 1999. letter states, in part: We previo~rsly offered to waive our costs and attorney fees incurred to date if this matter is dismissed and trll easeinent clait~zs b?.),our clierrt are waived. That offer is extended so long as nofurflier legal c.xperz.ses arzcl costs are icr. If-,ou [sic] clieizrs insist oilplirsziiizg this ~~~attef: it is l~if/ldr~'it.ll. [Emphasis added.:] Spannagels also sent an additional letter on June 28, 1990, stating that "the Spannagels will waive their Petition for Attorney Fees if the Gregorys will acknowledge that they have no intcrest in the Spannagel property, and will waive any rights that they may have." Gregory. Sr., alleges that hls attorney sent an acceptance letter on June 28, 1999. stattng: Let this letter serve as the Grcgorys' notice oftheir intention to withdraw their Petition for Declaratory Relief. Accordingly, per your letter ofApril 27.1999, and our telephone conversations, you will similarly dismiss your pending Motion for Attorney Fees. Per our telephone conversation on Friday, in your absence, 

### I will be working with Carey to cIraji a .settlc~?zent agrcci?zerlt mmencrble /obotlzparties. [Emphasis added.] This letter later included information regarding several otlier issues whiclt were to be resolved by the final settlement agreen~ent. Wh~le these letters demonstrate a 

### willingness to settle, Gregory, Sr., has not demonstrated that he has eo~nplled nrth the Spannagels' requirement that he "ackno\vledge

. 

### . . no interest in the Spannagel property" and that he
wane all easement claims agatnst the Spannagel property. Gregorq, Sr.'s, testtmonq 111theJanuary31, 21)00,hearing ciearly shows tl~at he was still pursuing or reserving the right to pursue a daimfor acccss across Spannagcls' property. M:e conclude tiili~ illc 

### District 

### Court did not enwhet1 it found that there was no settlement agreement to waive attorney fccs. ,4ccordingly, we affirm the District Court's order denying Gregorys' ~ilotion to set aside the auardof attorney fees. We also affirm the amount offees anarded sinceGregory, Sr., does not raise tlte reaso~~ableness of the fees as an issue on appeal. 

### '126 Finally, because none ofGregory, Sr.'s,Il~strict Court arguments had legal or factual nierit, we conclude that the District Court did not abuse its discretion when it concludedthat "themotion to set aside order to be frivolous and completely without legal or factual support in violation ofRule 

### I 1 ofthe Montana Rules ofCivil Procedure" and awarded attorney fees fordefending against that motion. We hcld that sanctions arepermissible where 

### "apleading is frivolous, i.e., not 'well grounded in fact' or '\varranted by existing law 

### . . . ."' v. SPb~ni~ (l991), 248 Vlont. 32, 38, 808 P.2d 494, 498 (quoting Rule 11, h4.K.Civ.P.). The Distr~ct Court has "vv~dc Jat~tudc to determme whether the factual c~rcumstanees of a particular case amountto frivolousor abusive litigation tactics 

### .. . ." lI)Ygosrit~o 1). 

### Swnrzsor~ (19')0), 240 Mont. 435,440. 784 P.2t1919, 926. We affinn the District C'o~~rt's conclusion that a Rule 1 1 \~olation occurred and its avvard of attorney fees. 27 Forthe samereasons, \be conclude that th~s appeal ISfri\olous and vvithoutnierit, and award attorney fees to Spannagels for having to defend against this appeal. 728 For thesc reasons we affirm the orders of the District Court and remand for determination of reasonable attorney fees incurred by Spannagels oil appeal.We Concur:Justice Jim Rice concurring in part and dissenting in part. 

### 4129 i concur cornpieiely with the COUII'SiirraJysii and holdings uniicr issues i anci 2. i agree that 

### Grcgoi-y's argiitnents 12~ci.i: \+-iih~ut merit and that the District C'ourr did nor ex

### in siivardingattorney fees and sanctions to ihc Spannagels. i \\-otilddecline,ho5vcvcr* to irnposc payment of Spannagels' attorney fees for this appeal upon Grcgory. Follo~ving the withdrawal ofhis attorneys, Gregory soughtto litigate this rnatter regarding his propertypo
se. .4lthough his legal arguments were incorrect, i find it plausible that ti nonia\\;yer could have believed the exchange oflettersbetwecn the parties here constituted aresolution of ;he matter, and that, following an adverse ruling by the District Court, it was not unreasonable for Gregory to seek appellate review based upon that plausible belief.