                                                                                       July 2 2013


                                         DA 12-0525

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 172



RICHARD MOTTA,

              Plaintiff and Appellant,

         v.

GRANITE COUNTY COMMISSIONERS,

              Defendants and Appellees.



APPEAL FROM:          District Court of the Third Judicial District,
                      In and For the County of Granite, Cause No. DV 11-16
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Richard Motta, self represented; Philipsburg, Montana

               For Appellees:

                      Susan Brooks Swimley; Attorney at Law; Bozeman, Montana



                                                 Submitted on Briefs: March 20, 2013

                                                           Decided: July 2, 2013


Filed:

                      __________________________________________
                                       Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     In this action, Richard Motta asked the Third Judicial District Court, Granite

County, to declare void the Granite County Commissioners’ 2011 creation of a

Georgetown Lake zoning district. Instead, the District Court entered summary judgment

that Granite County properly had enacted the Georgetown Lake zoning. The court also

determined Motta to be a vexatious litigant and ordered him to pay the County

Commissioners’ attorneys’ fees. Motta appeals. We affirm, except for the portion of the

judgment that requires Motta to pay the County Commissioners’ attorneys’ fees incurred

for seeking attorneys’ fees.

¶2     The issues are:

¶3     1. Did the District Court correctly rule that Granite County properly enacted the

2011 Georgetown Lake zoning in compliance with §§ 76-2-201 through -228, MCA?

¶4     2. Did the District Court properly determine Motta to be a vexatious litigant?

¶5     3. Did the District Court err in its award of attorneys’ fees to the County

Commissioners?

                                   BACKGROUND

¶6     The Granite County Commissioners enacted the Georgetown Lake Zoning District

and Regulations by resolution in April of 2011.       As documented in the “whereas”

sections of the resolution, the process began in 2008, when “a contingency of citizens

from Georgetown Lake” approached the County Commissioners with a request that the

county pursue a zoning district in that area under Title 76, Chapter 2, MCA. The County

Commission authorized the citizens to draft and present proposed zoning regulations to
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the Granite County Planning Board and County Commissioners for consideration. At a

series of public meetings and a public hearing, the Planning Board reviewed and

amended the draft revisions.     In October 2010, the Planning Board approved the

regulations, as amended, and presented them to the County Commissioners with a

recommendation for approval. After conducting a public hearing in February 2011, the

County Commissioners made revisions and amendments in accordance with § 76-2-

205(3), MCA. They allowed a 30-day period for submission of written protests and then,

in April 2011, entered a resolution creating the Georgetown Lake Zoning District and

adopting the regulations as amended.

¶7    The following month, Motta filed this action. He asked the District Court to enter

declaratory judgment voiding the County Commissioners’ resolution to create the

Georgetown Lake Zoning District and to adopt the Georgetown Lake Zoning

Regulations.   The County Commissioners’ answer to Motta’s complaint included a

counterclaim asking the court to declare Motta a “vexatious litigant” because he had

“sued the County and its agents multiple times and used the court system inappropriately

which is an abuse of the judicial system” and “filed [the present case] based upon

inapplicable law forcing [the County Commissioners] to file answers and motions to

resolve this matter,” and because his “abuses to the judicial system are numerous, without

merit and frivolous.”

¶8    Following discovery, Motta and the County Commissioners filed cross-motions

for summary judgment. The District Court held a hearing on the motions and later



                                            3
entered an order denying Motta’s motion and granting the County Commissioners

summary judgment on the merits of Motta’s complaint.

¶9     Following a bench trial on the County Commissioners’ counterclaim, the court

issued findings, conclusions, and an order determining Motta to be a vexatious litigant.

The court prohibited Motta from filing any more actions against government entities

without permission from the court. The court further determined that Motta should pay

for the costs and fees incurred in this action, and directed the County Commissioners to

submit an affidavit of the County’s costs and attorneys’ fees. Following a hearing, the

District Court entered judgment against Motta in the amount of $16,244.25. Motta

appeals.

                                      DISCUSSION

¶10 Issue One: Did the District Court correctly rule that Granite County properly
enacted Georgetown Lake zoning in compliance with §§ 76-2-201 through -228, MCA?

¶11    Under M. R. Civ. P. 56(c), summary judgment is proper if the materials filed with

the court show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.

¶12    As he did in the District Court, Motta complains that the Georgetown Lake zoning

is illegal because it was not preceded by a petition signed by sixty per cent of the affected

property owners, as required under § 76-2-101, MCA. Motta claims that, in the Granite

County Growth policy, the citizens of Granite County stipulated that zoning be initiated

by petition of the local landowners. Motta placed into the District Court record selected

pages from the Granite County Growth Policy.


                                              4
¶13    Nothing in the selected pages Motta filed from the Growth Policy prohibits the

County Commissioners from enacting zoning in any manner authorized by Montana law.

Motta doggedly continues to fail to acknowledge that, under Montana statutes, local

zoning districts may be established in either of two ways--by citizen petition to the board

of county commissioners under Title 76, chapter 2, part 1, MCA (known as “Part 1

zoning”), or directly by the board of county commissioners under Title 76, chapter 2, part

2, MCA (known as “Part 2 zoning”). See Helena Sand & Gravel, Inc., v. Lewis & Clark

County Planning & Zoning Comm’n, 2012 MT 272, ¶ 6, 367 Mont. 130, 290 P.3d 691.

¶14    Section 76-2-201, MCA, provides in part:

       (1)    For the purpose of promoting the public health, safety, morals, and
       general welfare, a board of county commissioners that has adopted a
       growth policy pursuant to chapter 1 is authorized to adopt zoning
       regulations for all or parts of the jurisdictional area in accordance with the
       provisions of this part.

It is undisputed that the Granite County Commissioners had adopted a county-wide

growth policy before they enacted the Georgetown Lake zoning.                Although the

Georgetown Lake zoning process was initiated following a request by citizens, the

procedures followed were those set forth at Title 76, chapter 2, part 2. That part includes

criteria and guidelines for zoning regulations, as well as requirements for notice to the

public and public hearings during the establishment of boundaries for zoning districts and

the adoption of zoning regulations.

¶15    Motta has concentrated all of his arguments under this issue on whether the

Georgetown Lake zoning complied with the procedures set forth in Title 76, chapter 2,

part 1. He does not argue that the County Commissioners failed to follow the procedures
                                             5
set forth in Title 76, chapter 2, part 2, which—as noted—the Growth Policy did not

prohibit. Absent any claim that the statutory requirements of Title 76, chapter 2, part 2

were not met, we uphold the District Court’s summary judgment ruling that Granite

County properly enacted Georgetown Lake zoning in compliance with §§ 76-2-201

through -228, MCA.

¶16 Issue Two: Did the District Court properly determine Motta to be a vexatious
litigant?

¶17    Citing State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392 (1913), for the

long-acknowledged proposition that Montana district courts possess inherent power to

sanction willful or reckless conduct, especially when combined with frivolousness,

harassment, or improper purpose, the District Court declared Motta a vexatious litigant

and imposed restrictions on his ability to file future lawsuits in the Third Judicial District.

The court ordered that no documents presented by Motta pro se naming a governmental

entity, its employees, or agents as a party shall be accepted for filing by any court within

the Third Judicial District absent written consent of the District Court Judge

“acknowledging that the document adequately demonstrates a basis in Montana law, and

in fact, and adheres to the requirements of the Montana Rules of Civil Procedure.” Motta

argues that this restriction on his right to file pro se complaints against government

entities is a denial of his constitutional right to seek redress of grievances for

governmental actions.

¶18    Article II, Section 16 of the Montana Constitution guarantees every person access

to the courts of this state:


                                              6
       Courts of justice shall be open to every person, and speedy remedy afforded
       for every injury of person, property, or character. . . . Right and justice
       shall be administered without sale, denial, or delay.

We have held that Article II, Section 16 does not grant a person license to burden the

resources of the court with successive claims. See Langemeier v. Kuehl, 2001 MT 306,

¶ 31, 307 Mont. 499, 40 P.3d 343. The right to access the state’s legal system is not an

absolute right and may be reasonably restricted in light of a “legitimate state interest.”

Peterson v. Great Falls Sch. Dist. No. 1 & A, 237 Mont. 376, 380, 773 P.2d 316, 318

(1989).

¶19    Other states have enacted statutes or rules of court concerning the placement of

restrictions upon “vexatious litigants’” access to the courts. See e.g. Cal. Code Civ. Proc.

§ 391.7; Tex. Civ. Prac. & Rem. Code Ann. § 11.101. Montana does not have such a

statute or rule. However, we have approved such restrictions in at least one case. In

Langemeier, ¶ 32, we upheld a clause in an arbitration award restraining litigants from

further contesting matters that already had been decided.

¶20    The federal courts, which apparently also have no specific court rule on the

subject, have developed a body of case law concerning “vexatious litigants.” See e.g.

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007). The District Court

relied upon factors identified in Molski in this regard. The Ninth Circuit U.S. Court of

Appeals reviews pre-filing orders entered against vexatious litigants to determine whether

the litigant was given notice and a chance to be heard before the order was entered;

whether the trial court has compiled “an adequate record for review;” whether the trial

court has made substantive findings about the frivolous or harassing nature of the
                                             7
plaintiff’s litigation; and whether the vexatious litigant order is “narrowly tailored to

closely fit the specific vice encountered.” Molski, 500 F.3d at 1057 (citations omitted).

The Ninth Circuit also has employed a five-factor test to examine whether a pre-filing

order is justified:

       (1) the litigant’s history of litigation and, in particular, whether it has
       entailed vexatious, harassing, or duplicative lawsuits;
       (2) the litigant’s motive in pursuing the litigation; e.g., whether the litigant
       has an objective good faith expectation of prevailing;
       (3) whether the litigant is represented by counsel;
       (4) whether the litigant has caused needless expense to other parties or has
       posed an unnecessary burden on the courts and their personnel; and
       (5) whether other sanctions would be adequate to protect the courts and
       other parties.

Molski, 500 F.3d at 1058.

¶21    Before declaring Motta a vexatious litigant, the District Court entered detailed

findings of fact on the history of this case. The court found that

       [i]n the present case, Mr. Motta followed the portions of the Court’s order
       that he liked. He intentionally ignored or misconstrued this Court’s Order
       on several occasions: Mr. Motta failed to send discovery in a timely
       manner; he refused to answer the Defendant Commissioners’ discovery
       requests; he sought sanctions against one attorney alleging that the attorney
       was a party and failed to attend the settlement conference even though
       Mr. Motta was present, knew all three County Commissioners and their
       other attorney was present; he mailed discovery questions unrelated to the
       present case to Defendant County Commissioners four months after the
       closure of discovery; he filed a motion to change the settlement master two
       days before the settlement meeting, which had been scheduled for six
       weeks; he filed three motions that were directed to preventing Defendant
       County Commissioners from having their counterclaim heard. This was all
       on top of Mr. Motta’s admission that there are two separate schemes in
       Montana to enact zoning: §§ 76-2-101 et seq., MCA (Petitioned Zoning)
       and §§ 76-2-201 et seq., MCA (County Zoning); that the separate statutes
       do not intertwine; and that even though Granite County complied with the
       provisions of §§ 76-2-201, MCA et seq., enactment, that because Granite
       County didn’t use petitioned county zoning, the zoning should be voided.
                                              8
In addition to Motta’s actions in this case, the court made detailed findings about other

court actions filed by Motta during the past several years. The court found that Motta has

filed no fewer than “thirteen (13) separate actions (including the present case), [in] most

of which he has appealed the lower court ruling to the Montana Supreme Court.”            The

court concluded “Plaintiff Richard Motta has abused the judicial process and harassed

other parties. . . . [He] is likely to continue to abuse the judicial process and harass other

parties. . . . [He] has had adequate notice of proposed sanctions against him and an

opportunity to oppose them. . . . The record for review in this case clearly establishes

that Richard Motta is abusing the judicial process. . . . Richard Motta has taken actions

that are frivolous and harassing.”

¶22    Under Sullivan, Langemeier, and Peterson, the District Court possessed authority

to restrict a vexatious litigant’s access to the courts. Before declaring Motta a vexatious

litigant, the District Court provided him with notice and an opportunity to be heard; the

court made substantive findings about the frivolous and harassing nature of Motta’s

current and previous litigation, and the court’s order restricting Motta’s right to file pro se

actions against government agencies in the Third Judicial District is narrowly tailored.

The District Court’s findings also addressed the five substantive factors identified by the

Ninth Circuit for determining someone to be a vexatious litigant. Those factors clearly

support the District Court’s determination that Motta is a vexatious litigant, and its order

was a proper exercise of the court’s inherent authority to place reasonable restrictions on

access to its resources.


                                              9
¶23     We hold that the District Court did not err in determining that Motta is a vexatious

litigant.

¶24 Issue Three: Did the District Court err in its award of attorneys’ fees to the
County Commissioners?

¶25     The District Court ordered Motta to pay for “the costs and fees of this action,”

without citing authority for that ruling. The attorney for the County Commissioners then

filed and served a memorandum of attorneys’ fees and costs, listing costs of $1,141.75

and fees of $11,101, and the court held a hearing to determine the reasonableness of the

amount of costs and attorneys’ fees.            At that hearing, the County Commissioners

presented testimony of an expert witness who attested to the reasonableness of the hours

claimed by their attorneys for this action and of the hourly rate charged. Counsel later

filed an amended memorandum of fees and costs, documenting additional costs of $2,000

and fees of $2,001.50 incurred in defending the fees and costs. The court entered a

judgment against Motta in the amount of $16,244.25, plus interest.

¶26     Motta complains that, had the County Commissioners used the services of the

Granite County Attorney, attorneys’ fees would have been reduced. He also points out

that attorneys’ fees are not considered costs. He cites § 27-8-311, MCA, which allows a

court to award such costs as are equitable and just, and says the award of attorneys’ fees

is not equitable and just under that statute.

¶27     Motta did not present any evidence at the hearing on fees that the Granite County

Attorney could have represented the County Commissioners in this action.                His

questioning of the County Commissioners’ fee expert at the hearing yielded a response


                                                 10
that she did not know why the County Attorney did not represent the County

Commissioners in this action, but she knew that it was common for outside counsel to

represent county commissioners in civil actions.

¶28    Motta is correct that attorneys’ fees are not part of the costs allowed to a

prevailing party under § 27-8-311, MCA, and M. R. Civ. P. 54(d). Montana follows the

American Rule, under which a party in a civil action generally is not entitled to attorneys’

fees absent a specific contractual or statutory provision. Montanans for the Responsible

Use of the School Trust v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263, ¶ 62, 296

Mont. 402, 989 P.2d 800. However, an equitable exception exists under which “a district

court may award attorney’s fees to make an injured party whole under its equity powers.”

Erker v. Kester, 1999 MT 231, ¶ 44, 296 Mont. 123, 988 P.2d 1221.

¶29    The equitable exception to the American Rule on attorneys’ fees is applicable

where the action into which the prevailing party has been drawn is without merit or

frivolous. See Erker, ¶ 44. Such awards are to be determined on a case-by-case basis.

Foy v. Anderson, 176 Mont. 507, 511, 580 P.2d 114, 117 (1978).

¶30    We have affirmed the finding that Motta is a vexatious litigant based in part on his

actions in this case. We conclude that the District Court acted within its equitable powers

when it ordered Motta to pay the County Commissioners’ attorneys’ fees as a sanction for

drawing the County Commissioners into this meritless and frivolous action. With the

exception discussed immediately below, we conclude further that the County

Commissioners supported their memoranda of costs and fees with sufficient evidence that

the costs and fees were reasonable in amount.
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¶31    We determine, however, that this is not a case in which extraordinary

circumstances justify an award of attorneys’ fees expended by the prevailing party in

proving the amount and reasonableness of his attorneys’ fees. Even within the category

of cases excepted from the American Rule, such fees generally are not awarded. See

DeVoe v. City of Missoula, 2012 MT 72, ¶ 29, 364 Mont. 375, 274 P.3d 752 (“While

there are cases holding that time spent determining fees is a crucial part of the case, . . .

those cases arise from statutory entitlements to attorney fees. They do not arise from an

award of attorney fees under Foy[.]”). As a result, we conclude that the fees-for-fees

amount of $2,001.50 must be deducted from the judgment entered against Motta.

¶32    The District Court is ordered to enter a corrected judgment against Motta in the

amount of $14,242.75.      In all other respects, the judgment of the District Court is

affirmed.


                                                  /S/ BETH BAKER

We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER




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