No. 02-172 

[N Ti-ltr: SLJPKEME COGKT 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 OF RECORD: 

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 

Decided: December 12; 2002 

Filed: 
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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 AND PROC:EDI,!RAL BACKGROI!UD 

*6 On July 28, 1907, Ron Gregory, Jr., prrrchased approximately 5,828 acres ofproperty 

on adjacent parcels from XIent Land Corporation. Apparently Grcgory. Jr., and Grcgory, Sr., 

purchased this property as part of a joint venture to develop the property for ranching and 

residential purposes. 

7 Shortly after moving onto the property, a dispute arose between the Gregorys and 

Spannagels regarding road access to the Gregory property. 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 of the Gregory parcel and continues for two niilcs no12h where it passes 

under Interstate Elighway 94. The height of vehicles which can pass under 1-94 is 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 Gregorys began developing their parcel, and traversed the "well road" on scveral 

occasions to deliver materials to the Gregory parcel. M'hile some ofthc use 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-ther 
use of tlic "well road" on the westem half of Section 13. Gregorys filed a pclilion for 

tietiaratory relief and sought a TRO arrd isijuilcrion against tile Spannagels on Xoveinbcr 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~artto 

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 

aside the District Cot~rt's Nove~nher 29, 190") or-dcr granting attorney fees to the Spannagels. 

C;regory, Sr., claimed thzit pursuant to Rule (jO(b), M.R.C'iv.P., there were sufficient grounds 
to 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 

representations before the court during the TRO hearings and during settlement negotiatiosis. 

Spannagels opposed the motion, contended that Gregory, Sr.. was not pel-tnitted to 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 ever been reached. 

71 1 Spannagels requested an opportunity to take the deposition of Gregory? .lr., who was 

absent from these proceedings, 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. 

711 2 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 Other Pendi1,g 

Motions. The District C'o~rrt affirmed its earlier atvard of attorney fees, concluded there was 

110 settletnent agreement and that none of Gregory, Sr.'s, contentions were meritorious. It 
found 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 of Rlrle 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. 21 1, 

226, 883 P.2d 106, 1 15, 

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 it was appropriate to strike motions and picadings 

filed by C;rcgov9 Sr., on bchaif ofiiregory, Jr., sincc Gregory. Sr., is not a iicerrscd altornqin 'Llnntena. Grcgcqv, Sr., contends that he represents a "cornmon carrse" and acts for tile 

"benefit of the entire Gregory Family," and requests that we distinguish H'eczvcr v. Lniv Fin11 

~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 

appear in court on behalf of his 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 find that the District Court did not en when it prohibited Gregory, Sr., from 

representing Gregory. Jr. We also limit this appeal to Gregory, Sr.'s, interests since Gregory, 

Jr., did not appeal any decision or judgment of thc District Court. 

ISSbE 2 

11 18 Did the District Court abuse its discretion when it affirmed the award of attorney fees 

and imposed Rule 1 I sanctions against Ron Gregory, Sr.? 

7 I9 The District Court concluded that there was no basis for setting aside the previouslyawarded attorney fees. It found that the partics 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 Gregorys had preb-iously moved to dismiss its stmended petition claiming the 

7 
Qriist 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 of the Quist easement evidence and that the District Court erred when it declined to 

constder the alleged fraud perpetrated by the Spannagels during atid subsequent to 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 Spannagels would 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 101 1. Spannagels Surther contend 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, was never presented at the 1RO hearing despite the availability of that in forination, 

and is irrele~ant bccaitse the amard of attorney fees relates to the successful defense agalnst 

the TRO and uas not based on the ultrtnate malts of the case. Spannagels also contend that 

no settlement agt cert-icnt u as reached and that even t ftherc had been at1 agreemerrr, <iregorp 
have not pcrforrned their part ofthe contract and should not be entitled to claim the benefits 

of ihc a& (rreernent. 

722 We have recognized that "attorney fees andcosts are recoverable under section 27- 19- 

306. MCA, as elements of the damages sustained by reason of the injunction . . . ." ~tt'urta~ 

191 Mont. at 187,622 P.2d at 101 5-16. Our decision in Marta to permit 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 have been wrongfi~lly enjoined or restrained." 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 issue of attorney fees. The "Quist easement" does not even pertain 

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 Spannagcls committed 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 Quist was a "ltomesteader." These alleged frat~dulerir statements were all i~nunaterial 

to the Llistrict Court's decision to quash the 'T'RO, and were or could have been clarified upon 

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 settlenient agrcemcnt." Gregory? ST., Iias not provided 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 no furflier legal c.xperz.ses arzcl costs are 

icr. If-,ou [sic] clieizrs insist oil plirsziiizg 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 of their intention to withdraw their 

Petition for Declaratory Relief. Accordingly, per your letter of April 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 /o botlz parties. [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 111 the 
January 31, 21)00, hearing ciearly shows tl~at he was still pursuing or reserving the right to 

pursue a daim for acccss across Spannagcls' property. M:e conclude tiili~ illc District Court 

did not en whet1 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 

auard of attorney fees. We also affirm the amount of fees anarded since Gregory, Sr., does 

not raise tlte reaso~~ableness ofthe fees as an issue on appeal. 

'126 Finally, because none of Gregory, Sr.'s, Il~strict Court arguments had legal or factual 

nierit, we conclude that the District Court did not abuse its discretion when it concluded that 

"the motion to set aside order to be frivolous and completely without legal or factual support 

in violation of Rule I 1 of the Montana Rules of Civil Procedure" and awarded attorney fees 

for defending against that motion. We hcld that sanctions are permissible where "a pleading 

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 amount to frivolous or 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 For the same reasons, \be conclude that th~s appeal IS fri\olous and vvithout nierit, 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'S iirraJysii 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 

siivarding attorney fees and sanctions to ihc Spannagels. i \\-otild decline, ho5vcvcr* to irnposc 

payment of Spannagels' attorney fees for this appeal upon Grcgory. Follo~ving the 

withdrawal of his attorneys, Gregory sought to 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 of letters betwecn the parties here constituted a resolution 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.