                                      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       and Appellants.



APPEAL FROM:         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:    March 7, 1996
                                                              Decided:    March 28, 1996
Filed:
Justice         W. William      Leaphart          delivered      the Opinion          of the Court.



          Pursuant        to Section       I,     Paragraph      3(c),     Montana Supreme Court
1995 Internal          Operating         Rules,      the following          decision         shall     not be
cited       as precedent        and shall         be published       by its       filing       as a public
document with          the Clerk         of the Supreme Court              and by a report             of its
result         to State      Reporter      and West Publishing               Company.
          William      Kuntz,      pro      se,     appeals       from      the     judgment          of    the
Fifteenth         Judicial      District          Court,      Roosevelt      County,         awarding       the
plaintiff         the principal           and interest          due on a promissory                  note   and
punitive         damages arising           from defendant's              fraudulent          conduct        in a
contract         to purchase       real     property.           We affirm.
            We consider        the following           issues     raised      on appeal:
     1. Did the District  Court deny Kuntz a fair                                  trial      by ordering
him detained in the presence of the jury?
         2.      Did the District           Court err in not ruling                on Kuntz's          motion
that     his     former counsel           turn over his file?
     3. Did the District   Court                       err     in excluding         certain          evidence
and exhibits offered  by Kuntz?
       4. Did the District                  Court err in rejecting      certain    New York
pattern   jury instructions                 and interrogatories    offered      by Kuntz?
       5. Did the District   Court err in overruling                                Kuntz's objection
to statements   in the closing argument relating                                  to the "lumberyard
property?"
          6.     Did the District           Court      award excessive             fees      to Fadness?
          7. Did the District               Court     err     in not granting              Kuntz's     motion
for      a directed verdict?
      8.         Did the District           Court err in not allowing  Kuntz to make
a motion         for a new trial           at the conclusion of the jury trial?


                                                       2
          This        case arises             out of a dispute                    regarding           160 acres         of land
located          near         Wolf      Point,             Roosevelt            County,         Montana.             In      1989,
William            Kuntz          (Kuntz)         responded                to      an    advertisement                 for     the

property,             owned by Wilbur                   and Mildred               Fadness,            and contacted            the
real      estate          agent,        Dorothy            Cody (Cody),             who had the listing.                       The
terms       of        the     listing          called              for     a $25,000            selling         price         with
thirty-percent                    down with           the      balance           financed         by a contract                for
deed at 9% interest.                          In August              of 1989,           Cody prepared            a buy-sell
agreement             and forwarded              it     to Kuntz            in New York state.                   Kuntz made
substantial                 alterations               to      the        terms      of     the        first      agreement.
Accordingly,                Cody sent another                      agreement        to Kuntz which he altered,
signed       and then forwarded                       directly            to the Fadnesses.                   The Fadnesses
signed       the         agreement.            The buy-sell                     agreement        was filed           with      the
Clerk      and Recorder                 of     Roosevelt                 County.         The altered             agreement,
provided           for      a $500 down payment,                          $5,000        cash at closing              with      the
balance          of      $19,500        financed              for        ten-months        at     9% interest.                 The
agreement              also       contained             a provision,                which        Kuntz         added,         that
allowed          for        a ten-month               extension             upon payment                 of    the      accrued
interest           due and a payment of two points                                      or $390.
          In November of 1989,                        the Fadnesses signed                       a warranty            deed and
the     deed was not                 recorded              until         approximately            one year           later       on
November 4, 1990.                       Kuntz         admitted            that     he added his               wife's         name,
Anna De La Chapelle                        Kuntz,          to the deed "while                    it     was in escrow."
The     mortgage            was    filed      in Roosevelt                 County on October                  1, 1990.         The
provision             providing         for    the interest                 on the outstanding                  balance        had
been lined               through        by Kuntz.

                                                                     3
          The balance            on the note and mortgage                              was due ten months after
closing,         in August           of 1991.             At that             time,      Kuntz      did not exercise
his     option       of extending             the note            for         an additional           ten months.               In
fact,      Kuntz did not pay any amount due on the note                                             and mortgage               and
was in default.                  Around this             time,          the Fadnesses were contacted                            by
Allen       Sunukjian            who introduced                   himself             as an agent             of    Wolfpack
Electronics,               and attempted               to purchase                  the Fadness/Kuntz               mortgage
at      a discount.                After       the       Fadnesses                  declined       this       offer,        they
learned          that       Wolfpack          Electronics                 was owned and                   controlled            by
Kuntz,      their        mortgagee.            Mildred           Fadness died on December 31, 1991,
and Wilbur              Fadness was appointed                          her personal              representative                for
purposes         of this         action.
          In April         of 1992, Fadness filed                         his        complaint        to foreclose              on
the property               and quiet          title.         Because the mortgage                           and note         had
been       altered          by     Kuntz,         Fadness'               ability            to    foreclose            on      the
property         was limited               to only        Kuntz's             l/2     interest       in the property
and did not extend                 to his wife's                 l/2     interest.           Accordingly,              Fadness
included          a claim          for      fraud,         either             actual        or    constructive,                and
requested           that     the trier           of fact               reform         the note       and mortgage               to
conform       with         the agreement               of the parties.
          On March 10, 1995,                   the District                   Court      entered          final     judgment
ordering         that      the     mortgage            altered          by Kuntz be reformed                      to reflect
the 9% interest              rate        and awarded compensatory                            damages in the amount
of      $19,500,         the balance            due on the                note.             In a separate              hearing
following           the     jury      verdict,            the          jury         awarded,       and the          District
Court       approved,              punitive              damages              in      the        amount       of       $32,000

                                                                 4
attributable               to     Kuntz's      conduct             constituting                  actual             fraud.          1n
another        hearing             regarding          attorney's                 fees,          the        District            Court
awarded        Fadness            $16,013.95          in     attorney's                 fees         and $3,117.82                  in
costs.       In all,            Fadness was awarded $74,898.24.                                      Kuntz appeals                from
these      determinations.
       1.       Did the District   Court deny Kuntz a                                                      fair        trial        by
ordering       him detained in the presence of the jury?
          Kuntz asserts              that    the District              Court            denied         him the right                to
a fair       trial         by ordering           him to             be removed                 to      the        back       of    the
courtroom        during           the punitive             damages phase of the proceedings                                         as
punishment           for     contempt.          Fadness responds                        that        the District               Court
is     empowered to punish                    contempt             summarily             when committed                      in    the
presence        of     the        court.        Kuntz         does not                 object         to        the     order       of
contempt,        rather,            he objects          to the fact                    that      he was punished                    in
the presence               of the jury.           We note            that         the imposition                      of summary
contempt        and         punishment           is        not       regarded                 with      favor,            whether
exercised        immediately               or after        trial      and it            is particularly                   tenuous
in the presence                  of the jury.              Sacher v. United                      States             (19521,        343
U.S.      1, 8-11,          72 S.Ct.         451,      455-56,             96 L.Ed.             717.            "To summon a
[party]      before             the bench and pronounce                          him guilty                of     contempt          is
not unlikely               to prejudice          [the        party]        .'I         Sacher,         343 U.S.              at    10.
Nonetheless,               the     error     may be harmless                     in     certain              circumstances.
Davenport        v.        State      (Ga. Ct.        App.         1995),         454 S.E.2d                 536,      537.
          In Davenoort,               the    defendant,              pro         se,     was adjudged                   to be in
contempt       of court             while      in the presence                     of the            jury.            Davenoort,
454 S.E.2d           at 537.          While     the DavenDOrt                     court         noted         that       the jury
"should      have been excused during                         the exchange between the judge and
                                                              5
the     pro   se defendant,"                the     court        also        determined        that   under      the
facts      of the case the error                   was harmless               "as the evidence           strongly
supported         the verdict         and it         is unlikely              that    the contempt         finding
affected      the result."              Davenuort,               454 S.E.2d           at 537.
        We determine         that      the same is true                  in the instant           case.       Kuntz
had been warned throughout                        trial     that       his     conduct        was unacceptable
and had also been held                 in contempt               for    failing         to participate         in a
conference         call   prior        to trial.                The court            stated     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         before       the judge held him in contempt                               Kuntz was warned
that     he was about         to be held              in contempt.                The following          exchange
occurred:

         The Court:          I've      ruled        now          . . .
         Kuntz:       I take        an exception,                Your Honor.             I am not---
         The Court:          I      don't         want      to     hear         anymore        from    you.
         Quiet!
         Kuntz:      Are you going                to give         a rebuttal---
         The Court:   I'm going to have the Sheriff                                    put you in jail
         if you don't shut up.
         Kuntz:       Then why don't                you do that?
         The Court:          I will.

                                                            6
          Kuntz:            Well,         then    go ahead.
          The Court:                If      you keep talking.
          Kuntz:            Then go ahead now in                               front       of     the     jury,          Your
          Honor,
          The Court:                Alright.            Where is the Sheriff?
          Kuntz:            He's right            there.
          Clerk           of Court:           Right         there.
          The Court:   Alright.    Take him into custody and put him
          in the jail.     Not in the jail,  just put him in custody
          right back here in the pew---
          Sheriff's              officer:            Alriyht.
          The Court:                So that          he can hear                the proceedings.
          Kuntz:            Thank you,            Your Honor.
          The Court:                You're        welcome.
          Kuntz:    I'm glad                  the jury            understands               how this            case has
          been run.
          The Court:                 Put       him      in--           right           there.           That's           good
          enough.
Thus,      from this              exchange as well                      as other           portions         of the record,
it   is        apparent            that      Kuntz         goaded           the        court       into         adjudging          him
guilty          of        contempt.               As       in     Davenuort,                the       evidence            strongly
supports              the         verdict          and           the        award          of       punitive              damages.
Accordingly,                we hold that             adjudging             Kuntz guilty                 of contempt             in the
presence             of    the      jury      was harmless                  error          in     the     context          of     this
case.
          2.          Did the District   Court err in not ruling                                                        on Kuntz's
motion         that     his former counsel turn over his file?
          Kuntz           asserts          that      the        District           Court        did       not      rule     on his
motion          that        his          former        counsel             deliver          Kuntz's             file.           Kuntz

                                                                    7
received        these         files      by the time of trial                       and Kuntz does not assert
that      he was prejudiced.                    Instead,              he merely           asserts              that          suitable
arrangements             should         have been resolved                         before        trial.                While         this
may indeed            be true,          Kuntz has not                 shown that              he was prejudiced                         by
failing        to obtain          the files           at an earlier                   date.       See George v. Fish
Creek Irrigation                 Co. (1959),           135 Mont.               490, 495, 342 P.2d 738, 741.

Accordingly,            we hold          that        based on Kuntz's                    failure           to demonstrate
prejudice,            the     District          Court        did         not     err     in      failing               to     rule      on
Kuntz's        motion.
     3.      Did the District   Court                             err      in excluding              certain                evidence
and exhibits    offered   by Kuntz?
          Our standard                of review        relating             to discretionary                      trial             court
rulings,         including             the admission                 of evidence              at trial,                is whether
the district             court         abused its           discretion.                 Hislop            v.    Cady (1993),
261 Mont.             243,      247,      862 P.2d               388,       390        (citing            Steer,             Inc.       v.
Department            of Revenue (1990),                    245 Mont.              470, 474-75,                 803 P.2d 601,
604).         This     Court      has held           that        "[iIn         the usual          case,          questions              of
admissibility                of evidence         are left                largely       to the sound discretion
of     the    trial         court,       subject        to review                only       in     cases          of manifest
abuse."           Wailer         v.     Hayden         (1994),             268 Mont.             204,          210,         885 P.2d
1305,        1309 (citing             Britton        v. Farmers Ins.                   Group (1986),                        221 Mont.
67, 86, 721 P.2d 303,                     315).
          Kuntz       asserts          that     it     was error                for      the      District                  Court       to
refuse        evidence         relating         to the sale                 of the subject                     property              from
a prior        owner,         Thelma Berglund,                    to Kuntz's              seller           the         Fadnesses.
He argues             that      at      the     time        of       the       sale      to      him,          title           to     the
property         was in Berglund's                    name.              Further,        Kuntz            asserts             that      it
                                                                 8
was error          to exclude               evidence             that       Fadness was also                    suing         the real
estate       broker,              Cody,          and      the          closing          agent,          Roger           Wimmer,          in
another          suit.             He asserts                   that          this      evidence             related           to      the
"credibility              and the underlying                            dispute,            ie      [sic]     the closing                of
the Escrow."               Kuntz complains                      that        the District                Court         erred         in not
admitting           an unsigned                      letter        written             by        Mrs.       Fadness.                These
letters          were between                   Kuntz         and the              Fadnesses          and related               to     the
delinquency              on the note.
          As to the evidence                         regarding           the Berglund                to Fadness contract,
the     District           Court          concluded              that         it      was inconsequential                       to     the
foreclosure              and fraud               actions.               Kuntz         failed         to demonstrate                   that
this      evidence         was relevant                  and it          is within            the broad discretion                       of
the     district           court          to      exclude          irrelevant                evidence.                 Wailer,         885
P.2d at 1310.
          Likewise,          it      was within                 the broad             discretion             of the court                to
exclude          evidence          of the pending                      suit        against          Cody and Wimmer.                    We
note      that     Kuntz          fails         to cite          to where in the record                              he attempted
to     introduce          evidence               of the          suit.               In any event,               Kuntz        had the
opportunity              to cross-examine                       Cody.          Finally,             as to the letter                  from
Mildred           Fadness,            the            District              Court        determined                   that      it      was
cumulative           and that                   Kuntz         had failed               to     produce           it      earlier          in
discovery.               The District                  Court      aptly            noted     that       the document                could
be excluded              solely           for        Kuntz's      discovery                 abuse.          Nonetheless,               the
court       allowed          Kuntz              to     argue       why the                 letter       was important                    to
Kuntz's          defense.            Ultimately,                 the court              determined            that          the there
was no new information                           in the document and that                               the court             was "not

                                                                       9
going       to let        [him]    go on all           afternoon        on this          stuff."         gee      wailer,

885 P.2d            at    1309     (citing          Rule      403,      M.R.Evid.).                As this             Court
stated       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           at    1310.            Similarly,        in      the      instant         case,            the
District         Court's          judgment          was exercised               within        that       permissible
range best           left      to the district               court.
       4.    Did the District                       Court err in rejecting      certain   New York
pattern   jury instructions                        and interrogatories     offered     by Kuntz?
           Our standard           of review            relating        to discretionary                  trial         court
rulings,         such as the giving                      of jury       instructions,               is    whether             the
district         court       abused         its     discretion.                Hisloo,        862 P.2d           at         390.
Here,       the District           Court          considered         fifteen       instructions             and seven
interrogatories                proposed            by Fadness          as well           as New York              pattern
instructions              and interrogatories                  submitted          by Kuntz.              Even though
the     instructions              and interrogatories                    submitted           by Kuntz            did         not
comply with              Montana's          District         Court      Rules,       the court            considered
them and gave New York                        Pattern         Instruction           No. 81 over                  Fadness'
objection.               In addition,              the     court      submitted           several         of      Kuntz's
interrogatories                to the jury.
           During        the jury's         deliberations,              the jury          submitted            a list         of
questions           relating           to    Kuntz's         interrogatories                 to    the      court            for
clarification.                 The court           told     Kuntz      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
         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.                                Accordingly,                    the court               instructed            the
jury     to         cease     in     its     attempt             to        answer          Kuntz's            interrogatories.
         Thus,         from        the     record,          it        is     clear          that        the        District            Court
carefully            considered            the instructions                        and interrogatories                           offered
by Kuntz.             The court            was acting                 within         its        discretion              in refusing
Kuntz's        offered         instructions                and interrogatories                           and in instructing
the          jury       not         to       answer               several                  of      Kuntz's               irrelevant
interrogatories.
       5.   Did the District                                  Court  err   in overruling                                         Kuntz's
objection   to   statements in                             the closing   argument relating                                        to the
"lumberyard    property?"
         Kuntz asserts               that     Fadness'                counsel made an improper                                reference
to     the     price         Kuntz         paid      for         the        former          UBC Lumberyard                      in      Wolf
Point.          The court           directed            Kuntz          that        "[nlow          I'm not going                     to let
you get up here                    and give          a speech.                 You have not made a definite
objection.              [Plaintiff's              counsel]                 [ylou    may         proceed."             Furthermore,
we     note          that      in        objecting,               Kuntz            was           able         to      correct            any

misstatement                of the purchase                price.             We determine                that        the District
Court        did not abuse its                   discretion                 in overruling                 Kuntz's             objection
to statements                regarding            the      "lumberyard                property."
         6.          Did the District                   Court          award excessive                        fees      to Fadness?
         Under the terms                   of the mortgage,                        Fadness is entitled                          to costs
and reasonable                attorney's                fees.              Kuntz      asserts            that         the       fees     and
costs        awarded         against         him were excessive.                                 A hearing             was held           to
determine             the    amount         of     fees          and costs                 due to         Fadness.                At     the
                                                                  11
hearing,            Kuntz     offered          the     testimony                of     witnesses                  regarding            the
fees       charged          by    other        attorneys             in         the        area      in          an attempt             to
challenge            the fees         requested             by Fadness'                counsel.
         During         the      hearing,        the         court        also         questioned                     the     fees     and
reduced        the amount of fees                     and costs                 for     travel            to Wolf             Point     as
well     as the         amount of             fees         requested            for         the     deposition                  of    real
estate        agent Cody.             The District             Court            also        stated         that         "Mr. Kuntz,
I think        your      actions         in this           matter         are the very                    things             that     made
this     case so complicated."                         Thus,         from the record                       it         is clear        that
the    District          Court         considered             all     of         the        evidence              and testimony
presented            and did       not       abuse its          discretion                   in     its          award of costs
and attorney's                fees.
         7.           Did the District                      Court         err         in      not         granting              Kuntz's
motion        for     a directed verdict?
         Kuntz        asserts         that     the District                     Court        improperly                  denied        his
motion        for     a directed          verdict.             A motion               for     a directed                    verdict     is
properly            granted       only       in the complete                     absence            of any evidence                     to
warrant        submission             to the jury,             and all            inferences                    of fact         must be
considered            in the light             most favorable                     to the opposing                           party.      If
the evidence            viewed         in a light            most favorable                       to Fadness indicates
that     reasonable              men could       differ             as to the conclusions                                   drawn from
the evidence            a directed            verdict          is not proper.                       Guertin                 v. Moody's
Market         (1994),           265 Mont.           61,      69,     874 P.2d                710,              715.          From the
record,        and from the jury's                     verdict,            it     is apparent                    that        there     was
sufficient             evidence          to     overcome             Kuntz's                motion              for     a directed
verdict.            Accordingly,              we hold         that     the District                   Court             did not err
in denying            Kuntz's         motion         for     a directed                verdict.
                                                               12
      8.          Did the District                      Court err in not allowing  Kuntz to make
a motion         for a new trial                      at the conclusion  of the jury trial?
         Kuntz         asserts        that        he was not allowed                         to make a motion                       for         a
new trial          in court           because he was in the custody                                       of the sheriff                   at
the      close         of     the     case.              We note             that       pursuant              to      Rule       59(b),
M.R.Civ.P.,             a party         has ten                days after              the service                  of notice              of
entry      of judgment               within            which       to file            a motion              for      a new trial.
Accordingly,                Kuntz     was not prejudiced                             because          he was not               able        to
move for           a new trial                   in      court.              Kuntz          had ten           days       after            the
service       of notice              of entry                of judgment             to move for                  a new trial.
         Under         Rule      59(a),          M.R.Civ.P.,                  Kuntz         was required                 to      "state
with     particularity                the grounds                 [for       the motion             for      a new trial],                 it
not being          sufficient               merely            to set         forth      the statutory                   grounds.                .
 11        Here,        Kuntz        made no such motion                            and did           not         articulate           any
particular             grounds         whatsoever                 to     the         District             Court.          In        fact,
Kuntz did not even file                          a motion              for     a new trial                with       the district
court.        Rather,            Kuntz        asserts             that        "it      would          have been an                  [sic]
useless       exercise              for Defendant               to reduce to writing,                             a Motion        which
the District                Judge would not allow                            to be made in Court."
         We do not agree with                         Kuntz's          assertion             that      it     would have been
a "useless             exercise"            to        file      a motion              for    a new trial.                      Kuntz's
obligation          to comply with                    Rule 59(b),              M.R.Civ.P.,                  was not suspended
merely       because            he was dissatisfied                                 with        the       District             Court's
rulings.           In failing                to properly                 make a motion                      for     a new trial,
Kuntz is deemed to have waived any objection.                                                    Accordingly,                  we hold
that     Kuntz         waived        this        issue         on appeal             due to his               failure          to file
a motion         for        a new trial               pursuant           to Rule 59, M.R.Civ.P.,                             with         the
                                                                   13
District     Court.
       Affirmed.




We concur:




               us ices




                         14
