FIRST SECURITY BANK OF KALISPELL v
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No. 83-255 IN THE SUPRE,W COURT OF THE STATE OF MONTANA 1984 FIRST SECURITY BANK OF KALISPELL, Plaintiff and Respondent, INCOME PROPERTIES, INC., JOHN J. MING, INC. TREASURE STATE REALTORS, I N C . , JOHN J. AND MARIE MING, Defendants and Appellants. APPEAL FRON: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Robert C. Sykes, Judge presiding. COUNSEL OF RECORD: For Appellants: John J. Ming, pro se, Kalispell, Montana For Respondent: Hash, Jellison, O'Brien Kalispell, Montana & Bartlett; James C. Bartlett, Submitted on Briefs: December 1, 1983 Decided: February 2, 19 84 . Filed: 6 - 1 2 J 984 E Clerk Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the Defendants appeal from the judgment of the District Court of the Eleventh Judicial District, Flathead County, granting possession of certain real property to plaintiff First Security Bank of Kalispell, and awarding damages to the plaintiff defendants. on account of wrongful possession by For the reasons stated below, we dismiss the appeal as moot. In December of 1975, a trust indenture was executed by Income Properties, Inc. as grantor, First Montana Title Company, as trustee, and First National Bank of Kalispell (now Norwest Bank), as beneficiary. of two lots adjacent Montana. A two to bedroom The property consisted the main home street sits on of one Kalispell, lot, and converted office building is on the other lot. a John and Marie Ming apparantly operated a real estate business in the converted building and maintained residence in the home. John Ming is president of Income Properties, Treasure State Realters, Inc., and John J. Ming Inc. Income Properties defaulted on the terms of the indenture in 1981 and failed to cure. The property was subsequently noticed for a public trustee's sale on December 31, 1981. The property was purchased by the plaintiff, First Security Bank (First Bank), for the sum of $60,500. A trustee's deed was then executed in plaintiff's name. First Bank gave written notice corporations to vacate the two lots. to Ming and his Ming refused to move and retained possession of both the house and the office. On June 16, 1982, the bank filed a complaint in justice court alleging unlawful de tainer and seeking possession and damages. Ming, questioning the propriety property. appearing of pro se, filed First Bank's an title answer to the At this point, the justice court was deprived of jurisdiction, and the cause was certified to district court. The plaintiff renewed the terms of its old complaint. An amended answer, written on stationary belonging to the law firm of Datsopolous, McDonald and Lind but signed only by John Ming, denied the Bank's allegations of title and The answer went on to assert that the trustee's damages. sale had been defective, and that First Bank had always been aware of the defects. against the Bank Ming also pressed a counterclaim a and third party claim against First Montana Title Company, alleging a conspiracy to defraud Ming and his wife of the property in dispute. The Bank moved for summary judgment on October 13, 1982, and filed appropriate affidavits and a memorandum in support of the motion. The Bank's motion and memorandum emphasized that if there were any defects in the trustee's sale, as alleged by Ming, then his complaint lay with the trustee under the trust indenture, First Montana Title Company, or the beneficiary, Norwest Bank, and not against First Bank, which alleged status as a bona fide purchaser for value. October A 26, but hearing on the motion was scheduled for the matter was continued at request of Ming ' s counsel, Chris Swar tley of Datsopolous, McDonald and Lind. On November 23, Swartley moved to withdraw as defendants' counsel, alleging that the attorney-client relationship had been "strained" from the outset and that Ming had been "totally uncooperative in resolving [the case] or in following [counsel's] recommended course of action." Following issuance of an order to show cause and a hearing, the trial judge granted the withdrawal petition. Ming was ordered to prepare a brief and appropriate affidavits in response to the summary judgment motion. attorney Lloyd He then retained Ingraham of Polson as counsel. EJei ther Ingraham nor Ming prepared pleadings or supporting documents as ordered by the court. Instead, Ingraham requested another continuance. informally The request was denied. Without explanation or justification, no responsive pleadings, aff idavits, or other documents were prepared or filed after the trial court denied the second continuance. On December 22, 1982, the court granted summary judgment to the Bank. In its findings of fact and conclusions of law, the court noted defendants' failure to file a responsive pleading, but emphasized that if defendants had any legitimate claims at stake, they were against the title company or Norwest Bank, and not First Bank, which the court found was a bona fide purchaser property free of any defects. for value, taking the The court set a hearing for January 21, 1983, to hear evidence on damages stemming from defendants' wrongful possession of the properties. A writ of possession was prepared in the event the Mings refused to vacate the properties. On December 27th, Ming pro se filed a notice of appeal to this Court and posted a $500 appeal bond. The appeal was stricken sua sponte by this Court January 19, 1983, because the judgment M.R.App.Civ.P., was not final pursuant to Rule 1, and lacked certification under Rule 54(b), M.R.Civ.P. The whereupon cause was returned the damages hearing ordered. to district proceeded court, as originally Ming again appeared on his own behalf, alleging nominal damages, if any, from his possession of the lots and buildings thereon. The trial court disagreed, and its judgment of February 25, 1983, found defendants liable for $38,437.50 damages and $1,200 in attorney's fees. (Actual damages for wrongful possession amounted to only $12,812.50, but because the court found that such possession had continued in bad faith for many months, the actual damages were trebled as provided by law.) of judgment, Ming, acting Following notice of entry pro se, submitted a pleading captioned "Motions to Reconsider," criticizing alleged defects in the trustee's sale and the subsequent award of damages. Copies of several documents relating to the trust indenture were attached. However, no action was taken on these "motions," and Ming timely filed a notice of appeal April 1, 1983. None of the parties make any reference in their briefs to Ming's "motions." In the apparantly interim refused following to move entry himself personal effects from the lots. of or judgment, his business writs of residence and place execution have been and A writ of possession was issued, and all personal effects were removed. left their Ming of business. filed on Ming's The Mings Subsequent personal property and financial accounts to satisfy damages awarded under notice the court's judgment. of appeal was filed At no time before or after did Ming or his attorney, Ingraham, move to stay execution of the judgment or file an appropriate supersedeas bond. W n o t e t h a t a l l a p p e l l a t e b r i e f s f i l e d on d e f e n d a n t s ' e b e h a l f h a v e b e e n p r e p a r e d and s u b m i t t e d by Mr. I n g r a h a m . also note several First that, subsequent motions Bank and and jurisdictional to personal the submission letters defendants of have this been case, filed concerning d e f e c t s i n the appeal. We by alleged W e denied, without prejudice, F i r s t Bank's motion t o d i s m i s s t h i s appeal for mootness. S i m i l a r l y , we d e n i e d m o t i o n s t o d i s m i s s f o r l a c k of prosecution, o u t of consideration f o r defendants' e f f o r t s to at least put critical. stay before this Court the issues they deem Ming c o n t a c t e d t h e t r i a l c o u r t f o r a d v i c e a b o u t a of execution s u p e r s e d e a s bond, of judgment and the filing of a b u t he a p p a r a n t l y h a s n o t pursued e i t h e r course of action. On t h i s a p p e a l , d e f e n d a n t s r a i s e two i s s u e s r e l a t i v e t o the District Court's summary judgment: (1) Whether the t r u s t e e ' s s a l e was d e f e c t i v e , a n d ( 2 ) w h e t h e r F i r s t Bank h a d notice of the alleged defects. No c o n c e r n i n g damages a w a r d e d t o t h e Bank. issue is raised A l t h o u g h t h e Bank has responded t o a l l e g a t i o n s concerning t h e t r u s t e e ' s s a l e , i t r e n e w s i t s p r e v i o u s m o t i o n s t o d i s m i s s f o r m o o t n e s s and other the jurisdictional record parties, and we now irregularities. consideration grant the of Bank's Upon issues examination presented motion to of by the dismiss the a p p e a l a s moot, b e c a u s e t h i s C o u r t i s n o t a b l e t o r e n d e r the r e l i e f defendants seek. R u l e 7 ( a ) , M.R.App.Civ.P. provides, in pertinent part: "Upon e n t r y of a judgment o r o r d e r a p a r t y may a p p l y t o t h e d i s t r i c t c o u r t on n o t i c e o r ex p a r t e f o r a s t a y o f e x e c u t i o n o f t h e judgment o r o r d e r Upon s e r v i c e o f n o t i c e o f a p p e a l , i f t h e h e may c o u r t h a s made no s u c h o r d e r ... ... present to the district court and secure its approval of a supersedeas bond which shall have such surety or sureties as are The bond shall be required conditioned for the satisfaction of the judgment or order in full together with costs, interest, and damages for delay, When the judgment or order determines the disposition o f property in controversv as in real actions, re~levin. and actions to foreclose mortgages the amount of the supersedeas bond shall be fixed at such sum onlv as will secure the amount recovered ......................... f o r the use and detention of the property, the costs of the action, costs o n appeal, interest, " (Emphasis and damages for delay added. ) . . . . .. ----------____--------------.-- ... . . . By paying damages or surrendering property due under a judgment, a party effectively accedes to the correctness of that judgment, and it passes beyond this Court's power to Dahl v. Petroleum Geophysical Co. (Mont. 1981), 632 review. P.2d 1136, 38 St.Rep. Dept. of Revenue Gallatin Trust Here, question (1975), 167 Mont. 429, 539 P.2d 722; Sav. Bank v. Henke (1969), 154 Mont. 170, defendants under possession. & 1474; Montana Nat'l Bank of Roundup v. have court order surrendered and the the terms of property in a writ of No stay of execution of judgment was sought and no supersedeas bond was requested or approved. Defendents have acquiesced in the terms of the summary judgment; this Court is in no position to grant relief. earlier, the issue of damages As we emphasized is not before this Court. Defendants' only responses to the mootness issue are that no statute or case law has been cited in support of the Bank's motion respect absurd. to dismiss, and to stay of that the Bank's judgment and a contentions with supersedeas bond The first response is incorrect; the second without merit. are is Furthermore, defendants' dogged persistence in attacking the District Court's summary judgment, after failing, without explanation or justification, to file responsive pleadings and supporting affidavits in opposition to First Bank's motion for summary judgment, is more than a little unusual. Nevertheless, because defendants may be appealing in good faith reliance on defense counsel's theory of the case, we decline the Bank's suggestion that we award damages under Rule 32, l4.R.App.Civ.P. appeal. We concur: / ' for an unreasonable
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