No.
95-133
IN THE SUPREMECOURT 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
APPEAL FROM:
and Appellants.
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
Submitted
on Briefs:
Decided:
Filed:
March 7, 1996
March 28, 1996
Justice
W. William
Pursuant
1995 Internal
cited
Leaphart
to Section
Operating
as precedent
document with
result
William
I,
and shall
3(c),
Judicial
plaintiff
the principal
punitive
damages arising
contract
to purchase
the following
be published
se,
District
appeals
Court,
decision
by its
real
filing
the
judgment
County,
fraudulent
2.
his
Did the District
former counsel
issues
raised
4. Did the District
pattern
jury instructions
err
for
Court
award excessive
7. Did the District
a directed
verdict?
Court
err
Did the District
for a new trial
awarding
the
note
conduct
and
in a
by ordering
on Kuntz's
certain
motion
evidence
Court err in rejecting
certain
New York
and interrogatories
offered
by Kuntz?
Did the District
8.
a motion
the
trial
in excluding
Court err in overruling
5. Did the District
to statements
in the closing argument relating
property?"
6.
of
on appeal:
Court err in not ruling
turn over his file?
3. Did the District
Court
and exhibits
offered
by Kuntz?
of its
We affirm.
1. Did the District
Court deny Kuntz a fair
him detained
in the presence of the jury?
that
as a public
due on a promissory
property.
not be
Company.
from
from defendant's
the following
shall
and by a report
Roosevelt
and interest
of the Court.
Montana Supreme Court
and West Publishing
pro
Fifteenth
We consider
Paragraph
of the Supreme Court
Reporter
Kuntz,
the Opinion
Rules,
the Clerk
to State
delivered
Kuntz's objection
to the "lumberyard
fees
in not granting
to Fadness?
Kuntz's
motion
Court err in not allowing
Kuntz to make
at the conclusion
of the jury trial?
2
This
case arises
located
near
William
Kuntz
estate
terms
Point,
(Kuntz)
of
agent,
the
responded
thirty-percent
deed at 9% interest.
agreement
the
for
it
alterations
to
Accordingly,
Cody sent another
and then forwarded
signed
the
Clerk
agreement.
and Recorder
provided
balance
for
of
agreement
also
financed
contained
$5,000
for
extension
due and a payment of two points
deed was not
until
Kuntz
admitted
November 4, 1990.
Anna De La Chapelle
The
mortgage
provision
been lined
was
Kuntz,
filed
providing
through
for
first
at
by Kuntz.
3
The Fadnesses
with
the
agreement,
with
the
9% interest.
Kuntz
of
The
added,
the
that
accrued
or $390.
a warranty
one year
he added his
to the deed "while
the interest
agreement.
was filed
upon payment
that
Kuntz made
cash at closing
approximately
in Roosevelt
a buy-sell
The altered
the Fadnesses signed
recorded
for
to Kuntz which he altered,
which
interest
with
by a contract
the
ten-months
for
the
of
The
price
Cody prepared
County.
allowed
In November of 1989,
the
selling
agreement
a provision,
a ten-month
the
to the Fadnesses.
a $500 down payment,
$19,500
for
in New York state.
agreement
Roosevelt
1989,
and contacted
financed
The buy-sell
of
In
who had the listing.
terms
directly
of land
advertisement
Fadness,
of 1989,
the
160 acres
Montana.
a $25,000
to Kuntz
substantial
signed
an
balance
In August
and forwarded
to
Cody (Cody),
called
down with
County,
and Mildred
Dorothy
listing
regarding
Roosevelt
owned by Wilbur
property,
real
Wolf
out of a dispute
it
deed and
later
wife's
on
name,
was in escrow."
County on October
on the outstanding
1, 1990.
The
balance
had
The balance
closing,
his
in August
option
fact,
on the note and mortgage
of 1991.
of extending
At that
the note
Around this
Allen
for
who introduced
Sunukjian
Electronics,
Kuntz
did not exercise
ten months.
In
and mortgage
and
the Fadnesses were contacted
After
that
Kuntz,
an additional
by
In April
been
by
title.
Kuntz,
was limited
her personal
to only
with
fraud,
the trier
that
the
the 9% interest
$19,500,
following
Court
rate
approved,
offer,
they
controlled
by
for
jury
interest.
either
actual
reform
punitive
and note
foreclose
had
on
the
in the property
Accordingly,
or
on
Fadness
constructive,
the note
and
and mortgage
to
of the parties.
Court
altered
entered
final
by Kuntz be reformed
due on the
verdict,
to foreclose
interest
and awarded compensatory
the balance
the
l/2
the District
mortgage
to
l/2
of fact
the agreement
On March 10, 1995,
ordering
mortgage
representative
complaint
ability
Kuntz's
for
a claim
his
Fadness'
included
conform
Wolfpack
Fadness died on December 31, 1991,
to his wife's
that
this
Because the mortgage
and did not extend
requested
of
action.
and quiet
altered
property
Mildred
of 1992, Fadness filed
the property
declined
was owned and
Fadness was appointed
of this
as an agent
the Fadness/Kuntz
Fadnesses
Electronics
mortgagee.
and Wilbur
himself
to purchase
the
Wolfpack
their
purposes
time,
and attempted
a discount.
learned
of
time,
Kuntz did not pay any amount due on the note
was in default.
at
was due ten months after
the
note.
jury
damages
4
to reflect
damages in the amount
In a separate
awarded,
in
judgment
the
and the
amount
of
hearing
District
$32,000
attributable
to
Kuntz's
conduct
constituting
another
hearing
regarding
attorney's
awarded
Fadness
$16,013.95
in
costs.
In all,
these
attorney's
the
fees
1n
District
Court
and $3,117.82
Fadness was awarded $74,898.24.
in
Kuntz appeals
Did the District
Court deny Kuntz a
him detained in the presence of the jury?
Kuntz asserts
a fair
trial
that
during
punishment
for
of
contempt,
from
and
exercised
immediately
1, 8-11,
[party]
before
Nonetheless,
the
State
In Davenoort,
contempt
of court
454 S.E.2d
"should
at 537.
error
and it
455-56,
the
while
While
pro
in the presence
the DavenDOrt
have been excused during
of
in
the
with
of summary
favor,
whether
is particularly
in
(19521,
of
contempt
343 U.S.
certain
court
at
is
10.
circumstances.
536,
was adjudged
of the
343
"To summon a
717.
454 S.E.2d
se,
tenuous
States
Sacher,
.'I
1995),
defendant,
order
to
him guilty
may be harmless
App.
the
the imposition
96 L.Ed.
party]
in
he was punished
Sacher v. United
[the
(Ga. Ct.
to
Court
when committed
regarded
trial
back
the District
that
not
451,
the
object
is
to prejudice
v.
does not
the bench and pronounce
not unlikely
Davenport
summarily
that
of the jury.
to
that
to the fact
or after
72 S.Ct.
him the right
as
We note
punishment
in the presence
be removed
by
damages phase of the proceedings
he objects
contempt
denied
trial
the
Kuntz
of the jury.
fair
of
contempt
court.
rather,
Court
Fadness responds
contempt.
the
the presence
him to
the punitive
empowered to punish
presence
the District
by ordering
courtroom
U.S.
fees,
fraud.
determinations.
1.
ordering
is
actual
to be in
Davenoort,
jury.
noted
537.
that
the jury
the exchange between the judge and
5
the
pro
facts
se defendant,"
the
court
of the case the error
supported
affected
the verdict
trial
that
in contempt
conference
to trial.
prior
conduct
failing
The court
the
strongly
finding
at 537.
in the instant
his
for
under
the contempt
454 S.E.2d
and had also been held
call
that
the same is true
had been warned throughout
that
"as the evidence
is unlikely
Davenuort,
that
determined
was harmless
and it
the result."
We determine
also
case.
was unacceptable
to participate
stated
Kuntz
in a
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
that
before
he was about
the judge held him in contempt
to be held
in contempt.
Kuntz was warned
The following
exchange
occurred:
The Court:
Kuntz:
I take
The Court:
Quiet!
Kuntz:
I've
I
ruled
now
. . .
an exception,
don't
Are you going
want
Your Honor.
to
to give
hear
anymore
Then why don't
The Court:
you do that?
I will.
6
from
you.
a rebuttal---
The Court:
I'm going to have the Sheriff
if you don't shut up.
Kuntz:
I am not---
put you in jail
Kuntz:
Well,
The Court:
Kuntz:
Honor,
then
If
go ahead.
you keep talking.
Then go ahead now in
The Court:
Kuntz:
Alright.
of
the
jury,
Your
Where is the Sheriff?
He's right
Clerk
front
there.
of Court:
Right
there.
The Court:
Alright.
Take him into custody and put him
Not in the jail,
in the jail.
just put him in custody
right
back here in the pew--Sheriff's
officer:
The Court:
Kuntz:
So that
Thank you,
The Court:
Put
The Court:
enough.
it
from this
is
apparent
guilty
supports
the jury
him
Accordingly,
right
exchange as well
Kuntz
As
verdict
the
jury
in
how this
there.
as other
goaded
and
we hold that
of
understands
in--
that
the
the proceedings.
welcome.
contempt.
of
presence
he can hear
Your Honor.
You're
Kuntz:
I'm glad
been run.
Thus,
Alriyht.
the
the
adjudging
was harmless
That's
portions
court
Davenuort,
award
in
adjudging
evidence
damages.
of contempt
the
him
strongly
punitive
Kuntz guilty
error
good
of the record,
into
the
of
case has
context
in the
of
this
case.
2.
motion
that
Did the District
Court err in not ruling
his former counsel turn over his file?
Kuntz
motion
that
asserts
that
his
former
the
District
counsel
Court
deliver
7
did
Kuntz's
not
on Kuntz's
rule
file.
on his
Kuntz
received
that
these
files
by the time of trial
he was prejudiced.
arrangements
may indeed
failing
should
Co. (1959),
135 Mont.
the
that
District
did
While
this
by
See George v. Fish
490, 495, 342 P.2d 738, 741.
not
failure
err
in
to demonstrate
failing
to
rule
on
motion.
3.
Did the District
Court
and exhibits
offered
by Kuntz?
Our standard
rulings,
of review
including
the district
the admission
court
abused its
243,
Department
This
247,
Court
862 P.2d
has held
admissibility
of evidence
of
court,
the
trial
abuse."
Wailer
v.
1309 (citing
Kuntz
asserts
refuse
evidence
a prior
owner,
He argues
property
that
"[iIn
(1994),
Cady (1993),
Steer,
470, 474-75,
largely
Inc.
v.
803 P.2d 601,
case,
questions
of
to the sound discretion
only
in
268 Mont.
v. Farmers Ins.
court
is whether
v.
(citing
the usual
to review
Hayden
cases
204,
of manifest
210,
885 P.2d
Group (1986),
221 Mont.
315).
that
relating
it
was error
to the sale
the
was in Berglund's
time
for
of
the
sale
Further,
name.
8
the
District
of the subject
to Kuntz's
Thelma Berglund,
at
390
evidence
trial
at trial,
Hislop
245 Mont.
subject
67, 86, 721 P.2d 303,
of evidence
are left
certain
to discretionary
388,
that
Britton
in excluding
discretion.
of Revenue (1990),
604).
err
relating
261 Mont.
1305,
suitable
he was prejudiced
date.
based on Kuntz's
Court
that
trial.
shown that
at an earlier
we hold
prejudice,
Kuntz's
Kuntz has not
asserts
before
the files
Creek Irrigation
Accordingly,
he merely
have been resolved
be true,
to obtain
Instead,
and Kuntz does not assert
seller
to
him,
Kuntz
Court
property
the
to
from
Fadnesses.
title
asserts
to
the
that
it
was error
estate
to exclude
broker,
another
evidence
and
Cody,
suit.
admitting
letters
were between
delinquency
agent,
this
that
and the
by
Wimmer,
in
to
the
the closing
of
Court
Mrs.
Fadnesses
the real
related
[sic]
the District
written
Kuntz
ie
suing
Roger
evidence
dispute,
letter
erred
in not
Fadness.
These
and related
to
the
on the note.
As to the evidence
District
Court
foreclosure
regarding
concluded
and fraud
evidence
the
that
Kuntz complains
an unsigned
Fadness was also
closing
and the underlying
the Escrow."
this
the
He asserts
"credibility
the
that
court
to
that
actions.
was relevant
district
the Berglund
it
was inconsequential
Kuntz
and it
exclude
to Fadness contract,
failed
is within
to
to demonstrate
that
the broad discretion
irrelevant
evidence.
the
of
Wailer,
885
P.2d at 1310.
Likewise,
exclude
note
to
it
was within
evidence
that
opportunity
Mildred
of the pending
Kuntz
introduce
fails
evidence
discovery.
suit.
be excluded
solely
defense.
Kuntz
Kuntz
Kuntz's
to
argue
Ultimately,
was no new information
Finally,
Court
had failed
Court
for
In any event,
Cody.
District
The District
Kuntz's
Cody and Wimmer.
of the
the
and that
allowed
against
of the court
to where in the record
to cross-examine
Fadness,
suit
discretion
to cite
cumulative
court
the broad
aptly
noted
that
discovery
why the
letter
that
it
from
it
was
earlier
in
could
Nonetheless,
the
was important
determined
in the document and that
9
had the
the document
abuse.
the court
Kuntz
as to the letter
produce
We
he attempted
determined
to
to
that
the court
to
the there
was "not
going
to let
885 P.2d
stated
[him]
1309
at
go on all
afternoon
(citing
Rule
on this
403,
stuff."
M.R.Evid.).
gee
wailer,
As this
Court
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
District
Court's
range best
at
Similarly,
1310.
judgment
left
was exercised
to the district
4.
Did the District
pattern
jury instructions
Our standard
district
court
interrogatories
the
comply with
Court
of jury
instructions,
Hisloo,
considered
by Fadness
District
them and gave New York
objection.
During
questions
clarification.
Pattern
the
In addition,
interrogatories
fifteen
Court
is
the
862 P.2d
by Kuntz.
submitted
Rules,
submitted
court
whether
at
the
390.
and seven
as New York
Instruction
court
trial
instructions
as well
submitted
and interrogatories
Montana's
permissible
to discretionary
and interrogatories
instructions
that
relating
its
proposed
instructions
case,
court.
such as the giving
the District
within
instant
discretion.
rulings,
Here,
the
Court err in rejecting
certain
New York
and interrogatories
offered
by Kuntz?
of review
abused
in
pattern
Even though
by Kuntz
the court
did
not
considered
No. 81 over
Fadness'
several
Kuntz's
of
to the jury.
the jury's
relating
deliberations,
to
Kuntz's
The court
told
the jury
interrogatories
Kuntz
submitted
to
the
a list
court
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
10
of
for
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.
jury
to
cease
Thus,
carefully
from
the
its
the
attempt
answer
is
was acting
instructions
not
jury
it
the court
to
Kuntz's
clear
the instructions
The court
offered
to
record,
considered
by Kuntz.
Kuntz's
in
Accordingly,
that
its
the
District
Court
offered
discretion
and interrogatories
several
the
interrogatories.
and interrogatories
within
answer
instructed
in refusing
and in instructing
of
Kuntz's
irrelevant
interrogatories.
Did the District
5.
objection
to
statements
in
"lumberyard
property?"
Kuntz asserts
to
the
price
Point.
Kuntz
The court
you get up here
objection.
we
note
that
paid
directed
and give
in
determine
Kuntz
the
former
that
a speech.
the
price.
may
was
"lumberyard
able
award excessive
to let
to
that
Furthermore,
correct
any
the District
Kuntz's
objection
fees
to Fadness?
Fadness is entitled
Kuntz
him were excessive.
amount
of
and costs
11
Wolf
property."
against
fees
proceed."
in overruling
fees.
in
I'm not going
We determine
of the mortgage,
attorney's
reference
You have not made a definite
Kuntz
Court
Kuntz's
to the
UBC Lumberyard
"[nlow
[ylou
discretion
regarding
Under the terms
awarded
the
objecting,
Did the District
and reasonable
counsel made an improper
counsel]
did not abuse its
6.
for
of the purchase
to statements
costs
Fadness'
[Plaintiff's
misstatement
Court
that
Court
err
in overruling
the closing
argument relating
asserts
that
A hearing
due to
to costs
the
fees
was held
Fadness.
At
and
to
the
hearing,
fees
Kuntz
charged
challenge
well
the
testimony
attorneys
requested
hearing,
amount of
agent Cody.
your
the
presented
and did
and attorney's
7.
motion
fees
Kuntz
asserts
for
abuse its
that
a directed
granted
warrant
submission
considered
only
fees
that
in
its
as
of
real
"Mr. Kuntz,
things
it
and
Point
deposition
that
is clear
evidence
discretion
in a light
men could
a directed
and from the jury's
Accordingly,
Kuntz's
to
61,
made
that
and testimony
award of costs
for
granting
his
a directed
for
denied
verdict
is
absence
of any evidence
inferences
of fact
to the opposing
that
874 P.2d
it
Kuntz's
12
Guertin
710,
715.
is apparent
motion
the District
a directed
to
must be
party.
If
to Fadness indicates
is not proper.
69,
Kuntz's
improperly
as to the conclusions
verdict,
we hold
not
most favorable
overcome
motion
in
Court
and all
differ
verdict
265 Mont.
evidence
err
most favorable
record,
in denying
the
A motion
to the jury,
(1994),
verdict.
stated
in the complete
Market
sufficient
the
of
the
to Wolf
are the very
Court
verdict.
viewed
reasonable
the evidence
travel
also
the District
in the light
the evidence
questioned
from the record
all
to
fees.
properly
that
Thus,
the
an attempt
in
for
matter
regarding
counsel.
for
Court
considered
not
area
also
requested
Did the District
a directed
verdict?
for
motion
court
in this
Court
witnesses
the
and costs
case so complicated."
District
in
The District
actions
of
by Fadness'
the amount of fees
I think
this
the
other
the
as the
estate
by
the fees
During
reduced
offered
verdict.
that
for
Court
drawn from
v. Moody's
From the
there
was
a directed
did not err
8.
a motion
Did the District
for a new trial
Kuntz
new trial
the
asserts
of
M.R.Civ.P.,
entry
the
case.
service
within
Kuntz
in
59(a),
Here,
merely
Kuntz
particular
of judgment
the grounds
sufficient
to
a motion
court.
Rather,
Kuntz
asserts
useless
exercise
for Defendant
the
for
that
"it
We do not agree with
Kuntz's
a "useless
exercise"
obligation
to comply with
because
file
assertion
a motion
Rule 59(b),
to properly
for
Kuntz
a motion
for
waived
this
a new trial
issue
with
.
any
In
fact,
the district
have been an
that
a Motion
it
[sic]
which
with
pursuant
Kuntz's
was not suspended
the
make a motion
on appeal
would have been
a new trial.
M.R.Civ.P.,
Kuntz is deemed to have waived any objection.
that
it
to be made in Court."
he was dissatisfied
In failing
rulings.
to
"state
articulate
to reduce to writing,
Judge would not allow
the
grounds.
Court.
would
to
a new trial],
not
a new trial
after
to
the statutory
District
able
a new trial.
was required
and did
of
a new trial.
days
for
at
of notice
to move for
forth
a
59(b),
he was not
the motion
to set
whatsoever
Kuntz did not even file
merely
[for
Rule
for
had ten
Kuntz
made no such motion
grounds
the District
Kuntz
M.R.Civ.P.,
to
a motion
because
for
of the sheriff
the service
to file
court.
of entry
particularity
not being
to make a motion
pursuant
was not prejudiced
of notice
Rule
that
days after
which
a new trial
Under
11
We note
has ten
of judgment
move for
he was not allowed
because he was in the custody
a party
Accordingly,
with
that
in court
close
Court err in not allowing
Kuntz to make
at the conclusion
of the jury trial?
District
for
a new trial,
Accordingly,
due to his
failure
to Rule 59, M.R.Civ.P.,
13
Court's
we hold
to file
with
the
District
Court.
Affirmed.
We concur:
us ices
14
