                                                                                           07/12/2016


                                           DA 15-0776
                                                                                       Case Number: DA 15-0776

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 172N



SEAN BOUSHIE,

              Petitioner and Appellee,

         v.

WILLIAM M. WINDSOR,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DR-14-503
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       William M. Windsor, Self-Represented, Madison, South Dakota

                For Appellee:

                       Sean M. Boushie, Self-Represented, Missoula, Montana



                                                   Submitted on Briefs: May 25, 2016

                                                             Decided: July 12, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     William Michael Windsor appeals part of an order from the Fourth Judicial

District Court, Missoula County, denying Windsor’s M. R. Civ. P. 60(b) motion to set

aside a temporary restraining order against him. We affirm.

¶3     Windsor’s long and tortured history with the Appellee, Sean Boushie, began in

2012 with an online dispute. We chronicled some of Windsor’s activities in Boushie v.

Windsor, 2014 MT 153, ¶ 4, 375 Mont. 301, 328 P.3d 631 (2014 Opinion):

       [I]n 2013, Windsor drove [from] Georgia to Montana, where he sought a
       [Temporary Order of Protection] against Boushie. In fact, the District
       Court found that he filed four separate petitions for protective orders
       against Boushie; and filed approximately six police reports about Boushie
       over nineteen months. All of the petitions for protective orders were denied
       and no charges have been pressed related to the police reports. Windsor
       also repeatedly drove past Boushie’s residence; showed up at Boushie’s
       workplace at the University of Montana, where he videotaped Boushie’s
       vehicle . . . [and created a website] where he posted false and defamatory
       information about Boushie and his wife.

Boushie, ¶ 4.

We affirmed the District Court’s order upholding the Missoula Municipal Court’s

decision to grant Boushie a Temporary Order of Protection (TOP) against Windsor.

Boushie, ¶ 17.



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¶4     Windsor has since been arrested twice for violating the TOP five times and failing

to appear in court. On February 20, 2015, the District Court granted Boushie’s motion to

dismiss the TOP, reasoning that a no contact order from Windsor’s criminal proceedings

was sufficient to protect Boushie and his wife. On November 12, 2015, Windsor filed a

M. R. Civ. P. 60(b) motion to have the TOP declared void or invalid, and to have it set

aside—despite Boushie voluntarily dismissing the TOP nine months earlier.             On

November 16, 2015, the District Court entered an Order Closing File. The Order stated,

in part:

       The Temporary Order of Protection (“TOP”) issued on August 23, 2013 by
       the Missoula Municipal Court Judge was DISMISSED on February 12,
       2015. [Windsor’s Rule 60(b) motion is denied, and] . . . [t]his cause is
       ORDERED CLOSED.

Windsor appeals.

¶5     We review a district court’s denial of a M. R. Civ. P. 60(b)(4) motion de novo.

Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451.

Under M. R. Civ. P. 60(b)(4), a party may move a court to relieve the party from a final

judgment, order, or proceeding, if found void.

¶6     Windsor presents five arguments contending that the District Court wrongfully

denied his M. R. Civ. P. 60(b)(4) Motion. Boushie refutes Windsor’s arguments and

requests this Court to: (1) require Windsor to obtain the signature of a licensed attorney

to accompany any of Windsor’s future attempts to file a motion or action; and (2) award

Boushie $5,000 in sanctions against Windsor, pursuant to M. R. App. P. 19(5).




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¶7     First, Windsor argues that the District Court wrongly determined the case was

already closed when he filed his M. R. Civ. P. 60(b) motion on November 12, 2015. The

District Court did not determine the case was closed when Windsor filed his motion. The

District Court instead pointed out that the TOP—which Windsor was attempting to

void—was dismissed on February 12, 2015. The District Court then ordered the case

closed in the same order on November 16, 2015. This argument is without merit.

¶8     Second, Windsor argues that the District Court’s “inherent power” obligated it to

act on the M. R. Civ. P. 60(b) Motion. However, except for vague citations mentioning

“inherent power,” Windsor fails to cite any authority to support his contention that such

power obligates a Court to review a TOP that has already been dismissed. This argument

is without merit.

¶9     Third, Windsor argues that the District Court’s inaction violates Windsor’s due

process rights. Windsor fails to cite any authority or facts in support of this argument

other than to generally aver to the U.S. and Montana Constitutions. This argument is

without merit.

¶10    Fourth, Windsor argues that the District Court should have considered his M. R.

Civ. P. 60(b) motion because the petition for a TOP was dismissed, not the TOP itself.

Windsor fails to support this argument with any citation to relevant law or to the record.

See M. R. App. P. 12(1)(d) (requiring appellants to cite the portions of the record at

which material facts appear); M. R. App. P. 12(1)(g) (requiring appellants to cite the

authorities relied on). This argument is without merit.




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¶11    Finally, Windsor argues the TOP’s validity is ripe for review because voiding the

TOP would directly affect his criminal case regarding his TOP violations. Windsor’s

challenge to the TOP in this regard is barred by the doctrine of issue preclusion. Issue

preclusion “bars the reopening of an issue that has been litigated and resolved in a prior

suit,” Kullick v. Skyline Homeowners Assn., 2003 MT 137, ¶ 18, 316 Mont. 146,

69 P.3d 225, and prevents litigants from “incessantly waging piecemeal, collateral attacks

against judgments,” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281,

130 P.3d 1267. Issue preclusion bars relitigation of an issue if four elements are met: (1)

an identical issue was previously raised in prior adjudication; (2) a final judgment on the

merits was issued in the prior adjudication; (3) the party against whom issue preclusion is

asserted was a party in the prior adjudication; and (4) the party against whom issue

preclusion is asserted must have been afforded a full and fair opportunity to litigate any

issues which may be barred. Baltrusch, ¶ 18.

¶12    In this case, all four elements of issue preclusion are satisfied. First, the issue of

the TOP’s validity was previously adjudicated in Boushie when we held the District

Court did not abuse its discretion in affirming the Municipal Court’s grant of the TOP

and its conditions. Boushie, ¶ 14. Second, we decided the TOP issue on the merits.

Boushie, ¶¶ 11-14. Third, Windsor was a party to the prior adjudication. Finally, the

Municipal Court, the District Court, and this Court have provided Windsor with a full and

fair opportunity to litigate the legitimacy of the TOP. The TOP’s validity was litigated

and resolved in Boushie. In our 2014 Opinion, we explicitly detailed why the TOP was




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valid. Just because Windsor incurred criminal liability by ignoring that opinion does not

provide a basis to relitigate the merits of the TOP now.

¶13    Having dismissed Windsor’s arguments as wholly without merit, we turn to

Boushie’s request to determine whether Windsor’s appeal is frivolous or vexatious, and if

so, whether it rises to a sanctionable action. M. R. App. P. 19(5) provides this Court

authority to award sanctions to a prevailing party in a frivolous or vexatious appeal.

M. R. App. P. 19(5) allows this Court to sanction in the form of a “monetary or

non-monetary penalty as the supreme court deems proper under the circumstances.” See

e.g., Guill v. Guill, 2014 MT 316, 377 Mont. 216, 339 P.3d 81; Hartsoe v. Tucker,

2013 MT 256, 371 Mont. 539, 309 P.3d 39; Grenz v. Fire & Cas. of Conn., 2001 MT 8,

304 Mont. 83, 18 P.3d 994.

¶14    In Guill, we found an ex-husband appellant to be a vexatious litigant. We then

awarded the ex-wife appellee her costs and fees, and restricted the ex-husband’s ability to

file any case in any Montana court regarding the ex-wife without first obtaining the

relevant district court’s approval. Guill, ¶ 21. This was not the ex-husband’s first appeal

to this Court, and we stated in the Opinion addressing his previous appeal that “we would

tolerate no further efforts by him to delay [his ex-wife’s] receipt of her fair share of the

marital estate.” Guill, ¶ 20 (citing Guill v. Guill, 2013 MT 262N, ¶ 8).

¶15    In Hartsoe, we imposed sanctions “tailored to prevent future harassment with

frivolous claims” by an appellant who continued to file groundless and burdensome

litigation amounting “to an abuse of our court system.” Hartsoe, ¶ 16. The Plaintiff in

Hartsoe filed 24 lawsuits, 19 of which were against state government employees.


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Hartsoe, ¶ 15. Therefore, we tailored the sanction to enjoin him from filing anything in a

Montana Court against any current or former judicial officer without the District Court’s

approval. Hartsoe, ¶ 17.

¶16    In Grenz, the appellant ignored this Court’s previous Opinion regarding his case,

and continued to harass the appellee through litigation in this Court and in the Workers’

Compensation Court.        Grenz, ¶¶ 2-5; see also Grenz v. Fire and Cas. of Conn.,

260 Mont. 60, 61, 857 P.2d 730, 731 (1993). We sanctioned the appellant $,1000 and

enjoined him from filing any further civil appeals in this Court until the sanction was

paid. Grenz, ¶18.

¶17    In this case, Windsor not only tried to relitigate the TOP’s validity after it had

already been challenged and upheld on appeal, he then appealed the District Court’s

ruling to this Court yet again. In our 2014 Opinion, we affirmed the District Court’s

decision to declare Windsor a vexatious litigant and impose sanctions because of his

“proclivity for filing voluminous lawsuits of questionable merit.” Boushie, ¶ 21. We

relied on the District Court’s findings that:

       Windsor had previously been deemed a vexatious litigant by the U.S.
       District Court for the Northern District of Georgia and that Windsor ran
       several websites aimed at harassing and threatening particular individuals,
       including Boushie. The court further discussed the burden to clerical and
       judicial resources caused by Windsor’s “voluminous frivolous filings”—the
       extent and nature of which are easily confirmed from review of the record.

Boushie, ¶ 20. Our 2014 Opinion also approved all but one of the District Court’s

sanctions for Boushie because the District Court adequately weighed the Motta factors

we adopted for district courts. Boushie, ¶¶ 19, 21 (citing Motta v. Granite County



                                                7
Comm’rs, 2013 MT 172, ¶¶ 17, 22, 370 Mont. 469, 304 P.3d 720). Those sanctions

included restrictions on Windsor’s access to the courts, in the form of requiring him to

seek court approval before filing future lawsuits or administrative proceedings.

However, we reversed the District Court’s decision requiring Windsor to post a $50,000

bond for any action he files that named judges or court employees because it was not

“sufficiently closely tailored to fit the specific vice encountered.”    Boushie, ¶ 21.

Windsor had never filed an action naming a judge or court employee. Boushie, ¶ 21.

¶18   We see fit to join the multiple courts classifying Windsor as a vexatious litigant,

and so declare him to be a vexatious litigant. Pursuant to M. R. App. P. 19(5) we impose

sanctions—consistent with our precedents in Guill, Hartsoe, and Grenz—which are

tailored to both penalize Windsor with a monetary fine and restrict Windsor from further

abusing Montana courts with his frivolous filings. We order that Windsor shall pay a

$1,000 sanction. Windsor shall immediately pay the $1,000 sanction into the Clerk of the

District Court, who shall transmit that amount to Boushie.         This order shall be

enforceable as a judgment against Windsor in the stated amount.

¶19   Furthermore, we order that Windsor shall not initiate any further proceedings

regarding Boushie in any Court or administrative body in the State of Montana until

Windsor has: (1) obtained the signature of an attorney—actively licensed and in good

standing with the State Bar of Montana—attesting that any pleading Windsor seeks to file

complies with M. R. Civ. P. 11; and (2) satisfied the monetary sanction imposed herein.

Unless Windsor has satisfied both criteria, the Court or administrative body shall

summarily reject Windsor’s pleading.


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¶20   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct, and we affirm its denial of Windsor’s M. R. Civ. P.

60(b) Motion. We declare Windsor a vexatious litigant and impose sanctions as set forth

in ¶¶ 18-19.


                                               /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON




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