REILLY v FARM CREDIT BANK OF SPOKA
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IN THE SUPREME COURT OF THE STATE OF MONTANA 93-536 NO. DON BYRON REILLY AND MARY LOU REILLY, Plaintiffs and Appellants, )OPINION AND ORDER ; --vs.FARM CREDIT BANK OF SPOKANE (FORMERLY KNOWN AS FEDERAL LAND BANK OF SPOKANE), VALARIE WAREHIME, ANDW. ARTHURGRAHAM, Defendants Appellants, filed Don Byron a Notice Motion to of Appeal Dismiss The bases and that and Respondents. for the substantial Reilly and Mary on October and Request this motion Reillys' for are appeal prepared to the is without respondents' motion rule on respondents' Reillys) filed on November appeal 1993. was untimely filed without filed on November to 5, a and was taken merit motion (the Respondents The Reillys grounds. the 1993. Sanctions that or reasonable opposing 7, Lou Reilly 9, a memorandum 1993, dismiss and we are and request for sanctions. This (Bank) action a result foreclosure initiated Bank's attempt with Reillys property. on the a multitude to On October Sue" is the 1990, Ravalli On the Reillys' Federal real litigation Land Bank property. in of Spokane's The Reillys an attempt to have stymie the foreclose. 2, recorded of of the County a "Notice December Reillys filed District Court. of 23, Lis 1991, a "Notice Pendens" the Intent to On the same day, the on subject real a formal Reillys of the filed complaint in District regarding the real nor did property it name the On March 9, to the 1993, which actions in of obtained Respondents of the filed On August that the on the District the Court of September 8, the dismissal of ordered Court dissolve the 1993. On October 7, any from Judgment the and without first judgment 1993, and the on May 27, a motion of as the thereof A formal filed their (now known on May 20, Notice Notice the commencing thereto Respondents with against arising Court]." Entry Court's District District of of 1993, or judgment complaint foreclosure Respondents a Notice 20, District the Spokane the Pendens, summary from to relating [the favor in of of Lis sanctions them and/or proceedings leave was entered imposed a claim as defendants. of Land Bank of Spokane) judicial dismissal "relating allege Notice granted prohibited Federal not property Court also Court the real the Court District Bank subsequent having and ordered to Credit the did in the District permanently the Deed of Trust of the The District Reillys, Farm described owners Respondents prejudice. The complaint Court. Lis 1993. requesting Pendens, Reillys' based complaint. of Lis Pendens 1993, the Reillys filed to dismiss The dissolved based on a Notice Appeal. The Respondents Reillys' failure to judgment entered filed timely on May a motion file 20, a notice appeal Rule 1993. of 5(a)(l), requires that an appellant file from the date of of the judgment . ." In Reillys are . this the case, entry the a notice of appeal or order .appealing from on the the final M.R.App.P., "within 30 days appealed from the from. formal judgment filed of the District a notice day period Clearly, of entry to file of appeal notice dissolving the lis order". began running of appeal, the District filed on that date. on October 7, 1993, of September 8, 1993, M.R.App.P. Court's order pendens on the property, Rule l(b)(2), The Respondents on May 27, 1993, and the thirty based on Rule 5(a)(l), In addition, "special dated May 20, 1993. of judgment a notice the Reillys' is untimely Court is M.R.App.P., not an appealable provides, in pertinent part: In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases: . . . (2) . . . from any special order made after final judgment. . . . This Court has "affecting the rights entered." District the the rights established Reillys real merely property lifted claims as defendants. when they of the parties Therefore, Court rights because the 351. pendens does not Rather, 1993, of the parties. the of real September property's lis Paul Here, title The property to name the owners The order on the real filed & St. on May 20, regarding pendens and failed the "cloud" by the Reillys the rights any lis one out of to the action. District and substantive raised in the lis the Milwaukee the as growing 437, 440, 93 P. 350, of the parties by order" to the action, dissolving of either the legal "special Chicago, 36 Mont. order entered never described (1908), Court's judgment a of some party Ry. Co. v. White affect defined previously the judgment the previously of the 8, 1993, placed there pendens and did not affect to the action. the Reillys failed to file a notice of appeal within thirty judgment was filed and this Court days continued for On October writs. notice their jurisdiction have requested the Reillys' the 1993, on May 27, is without Respondents after filing we sanction of meritless a writ researched and groundless. and causes delay, and attorney's Mont. 131, appeal is When an appeal is Hock v. 634 P.2d entirely As a Respondents' attorney's the Reillys' entitled to reasonable In this we hold fees the (1981), case, that costs 194 the Reillys' sanctions are Pay the in responding to appeal. For the foregoing sanction, filing unfounded Cedar Products and this improperly entirely 1179. unfounded appropriate. is for was Lienco 1174, against with the Reillys mandamus which the respondent fees. 140, of due to and applications documents On November 10, 1993, we sanctioned for time-barred, the Reillys and meritless final the Reillys 14, 1993, we cautioned Court. of the appeal. appeals frivolous, application is to consider that vexatious, entry appeal filing an of and costs should should be and is hereby IT IS Sanctions Respondents' This action determine be and is GRANTED, costs is hereby remanded Motion to Dismiss GRANTED, and Appellants' appeal DISMISSED WITH PREJUDICE. and to the costs the Respondents' Appellants and attorney's the appropriate incurred the Respondents' FURTHER ORDERED that is shall reasons, IT IS HEREBY ORDEREDthat Appeal Reillys' are fees incurred District Court and attorney's Request ordered on this for fees to for pay appeal. a hearing to to be awarded as sanctions. IT IS FURTHER ORDERED that the Twenty-First judgment Judicial docket of the Ravalli Clerk County in the shall this until of said Twenty-First accept for No. docket attorney's fees neither the Judicial 93-536, Cause the District this Court of in the Court nor Order County. IT IS FURTHER ORDERED that the of shall District Clerk filing any or in of this District further Court pleadings Ravalli and costs Clerk County are fully in or Cause Ravalli documents No. paid, satisfied, Clerk of 93-300 and discharged. IT serve the IS HEREBY FURTHER ORDERED that Respondent' District Dated counsel Court this b /&%y of mail record, with of Nov a copy the the of Appellants, this Order. this pro Court se, and
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