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                                                                No. 00-033



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 173N




JAMES DELOS HALDEMAN,

Petitioner and Appellant,



v.



BLAZE MARIE ELLIOTT,

f/k/a BLAZE MARIE HALDEMAN,



Dissolution case Respondent.




THE HONORABLE THOMAS A. OLSON,



Respondent.




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APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Jeffrey M. Sherlock, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Dana C. Christian, Attorney at Law, Livingston, Montana



For Respondent:



Daniel J. Roth, Attorney at Law, Bozeman, Montana

(for The Honorable Thomas A. Olson)




Submitted on Briefs: April 27, 2000

Decided: July 6, 2000

Filed:

__________________________________________



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Clerk

Justice Karla M. Gray delivered the Opinion of the Court.




    1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
         Operating Rules, the following decision shall not be cited as precedent but shall be
         filed as a public document with the Clerk of the Supreme Court and shall be
         reported by case title, Supreme Court cause number, and result to the State Reporter
         Publishing Company and to West Group in its table of noncitable cases issued by
         this Court.
    2.   ¶Dana C. Christian (Christian), attorney at law, appeals from the Judgment entered
         against him, personally, for attorney fees and costs by the Eighteenth Judicial
         District Court, Gallatin County, the Honorable Jeffrey M. Sherlock presiding (Judge
         Sherlock or District Court), on its underlying Order denying Christian's motion for
         disqualification of the Honorable Thomas A. Olson (Judge Olson) and assessing
         sanctions in the form of attorney fees and costs. We reverse in part and remand, and
         we refer this case to this Court's Commission on Practice for consideration of
         Christian's conduct in the matters underlying this appeal.
    3.   ¶We address the following restated issues on appeal:
    4.   ¶1. Did the District Court abuse its discretion in awarding attorney fees and costs
         against Christian as a sanction for filing a motion to disqualify Judge Olson?
    5.   ¶2. Should Judge Olson be awarded attorney fees under Rule 32, M.R.App.P., as a
         sanction against Christian for bringing a frivolous appeal?



                                                          BACKGROUND

    1. ¶Christian filed a Verified Petition for Determination of Child Custody and Related
         Matters, on behalf of James Delos Haldeman (Haldeman), in the Eighteenth Judicial
         District Court, Gallatin County, on June 7, 1999. Summons was served on Blaze
         Marie Elliott, formerly known as Blaze Marie Haldeman, on June 8, 1999. Judge
         Olson held a hearing on June 14, 1999, and the parties stipulated to modify an
         Illinois decree to provide that their minor children would reside with Haldeman. On
         the same date, Judge Olson entered his Order approving the stipulation.

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   2. ¶Two weeks later, Christian filed a Motion and Brief to Remove Judge for Cause
        pursuant to § 3-1-805, MCA, purportedly on Haldeman's behalf. No affidavit from
        Haldeman accompanied the motion. Instead, Christian filed his own affidavit
        observing that no negative rulings had been made against his client and, indeed, the
        only ruling in the case had been favorable to his client. Christian's affidavit stated
        that Judge Olson "has a disqualifying personal bias or prejudice . . . in this type of
        case where a father, and not the mother, has custody of minor children from a
        divorce."
   3.   ¶Judge Sherlock was duly appointed to preside over the disqualification proceeding
        and an evidentiary hearing on Christian's motion to disqualify was held on August
        30, 1999. Christian presented a number of witnesses at the hearing who had been
        involved in past dissolution cases heard by Judge Olson, none of which was related
        to his client's case and none of which had been appealed. Christian conceded at the
        end of the hearing that he was not being paid for bringing the motion to disqualify.
        Christian's motive with regard to the motion was "to prove [Judge] Olson's bias
        [against men and fathers in domestic relations cases] to benefit those involved in
        future cases" and "for the good of future fathers going through a divorce." In various
        briefs and pleadings, Christian stated that Haldeman himself had "no personal
        conflict with the Judge. . . . This is a public conflict regarding the Judge's public
        judicial conduct having nothing to do personally with Mr. Haldeman, except as to
        his gender."
   4.   ¶Both parties briefed various issues after the hearing, including Judge Olson's
        request for sanctions against Christian under § 3-1-805(1)(d), MCA, in the form of
        attorney fees and costs. On November 10, 1999, Judge Sherlock issued his Order
        denying Christian's motion for disqualification of Judge Olson "as being without
        any basis in law or fact." The Order also stated that sanctions were appropriate
        under both § 3-1-805(1)(d), MCA, and Rule 11, M.R.Civ.P., and that such sanctions
        would be imposed against Christian. It ordered Christian to pay attorney fees
        incurred by Judge Olson. A Notice of Entry of that Order was filed and served on
        November 10, 1999.
   5.   ¶ On the same date, Judge Olson's counsel filed a Motion for Entry of Judgment
        requesting judgment against Christian in the amount of $2,903.14, representing the
        ordered attorney fees and costs incurred, with interest thereon, together with an
        affidavit setting forth time and billing records totaling that amount. The District
        Court entered Judgment in the stated amount, with interest, on November 16, 1999,
        and a Notice of Entry of Judgment was filed and served on November 17, 1999.
   6.   ¶Christian appeals from the imposition of attorney fees and costs as a sanction and

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       from the amount assessed. He does not appeal from Judge Sherlock's denial of his
       motion to disqualify Judge Olson.

                                                           DISCUSSION

   1. ¶1. Did the District Court abuse its discretion in awarding attorney fees and costs
       against Christian as a sanction for filing a motion to disqualify Judge Olson?

   2. ¶Section 3-1-805, MCA, authorizes a party to a court proceeding to file an "affidavit
      alleging facts showing personal bias or prejudice of the presiding judge. . . ." When
      such an affidavit is filed against a district court judge, the matter is referred to this
      Court and the Chief Justice assigns another district court judge to hear the matter.
      Section 3-1-805, MCA. It is undisputed in this case that Christian's affidavit was not
      that of a "party" alleging facts showing personal bias or prejudice of the presiding
      judge against the party. Indeed, as set forth above, Judge Olson had made only one
      ruling in the underlying matter and that order approved the stipulation of Haldeman
      and his former spouse to modify an Illinois decree to provide that the minor children
      would reside with Haldeman. Notwithstanding the absence of the required affidavit,
      however, the Chief Justice of this Court appointed Judge Sherlock to hear the
      motion to disqualify Judge Olson.
   3. ¶The transcript of the hearing on Christian's motion, and other statements of record,
      are clear that Christian's motive in attempting to disqualify Judge Olson was
      premised on his own view that the judge was biased against men and fathers in
      domestic relations cases. Christian's client, Haldeman, was not involved in any way
      in the motion and could hardly have reasonably alleged bias or prejudice against
      Judge Olson, since the only ruling Judge Olson made in his case was to approve the
      parties' stipulation which favored Haldeman as the children's residential custodian.
   4. ¶Judge Sherlock denied the motion to disqualify. In doing so, he determined that
      Christian had failed to follow the procedures required by § 3-1-805, MCA. He also
      determined that the motion was totally without merit, observing that the purpose of
      the motion was "to advance whatever [Christian's] own agenda might be at the
      expense and reputation of a good and decent man[,]" and stating that Christian had
      "failed to support his contention that Judge Olson was prejudiced against Haldeman
      or men in general." As noted above, Christian does not appeal from the denial of the
      motion to disqualify.
   5. ¶Pursuant to the discretion vested by § 3-1-805(1)(d), MCA, Judge Sherlock
      assessed attorney fees and costs against Christian for filing the motion to disqualify

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        without any proper reason and as an attempt "to take an unconscionable advantage
        of Judge Olson to the advantage of Christian." He also determined sanctions were
        appropriate pursuant to Rule 11, M.R.Civ.P. Christian contends that Judge Sherlock
        erred in doing so without notice and a hearing and that, at such a hearing, he could
        successfully have withstood both the award of fees and costs and the amount
        awarded.
   6.   ¶The record before us is clear that Christian had notice that Judge Olson was
        seeking sanctions in the form of attorney fees and costs. Judge Olson's attorney
        argued for sanctions against Christian personally at the close of the hearing and in
        two briefs and, indeed, Christian responded to that argument. Therefore, we reject
        Christian's argument that he did not have notice sanctions were being sought.
   7.   ¶ In addition, we reject Christian's argument that he was entitled to a hearing on the
        issue of whether sanctions were appropriate. We have held, as he contends, that
        district courts should give notice to show cause and hold a hearing before imposing
        Rule 11 sanctions in order to provide the party against whom sanctions are sought
        with due process and an opportunity to prepare its case against the imposition of
        sanctions. See Lindey's, Inc. v. Goodover (1994), 264 Mont. 489, 497, 872 P.2d 767,
        772. Under a solely Rule 11 situation, this is an appropriate and necessary safeguard
        because the usual bases of a request for sanctions under the Rule--that is, for
        example, whether the pleading was well grounded in fact, warranted by law and not
        interposed for an improper purpose--ordinarily will not have been litigated in the
        underlying proceeding.
   8.   ¶In the case before us, however, Judge Sherlock's primary basis for the award of
        sanctions was § 3-1-805(1)(d), MCA. Moreover, given the purported factual basis of
        Christian's motion to disqualify and the transcript of the hearing on that motion, it is
        clear that all matters necessary and appropriate to resolving the question of whether
        sanctions should be awarded--as well as the parties' arguments about the imposition
        of sanctions--were before the District Court at the time of its Order.
   9.   ¶Judge Sherlock exercised his discretion under § 3-1-805(1)(d), MCA, which
        authorizes attorney fees and costs as sanctions against an attorney who files a
        proceeding to disqualify "without reasonable cause and thereby hinders, delays, or
        takes unconscionable advantage of any other party, or the court." In Judge
        Sherlock's view, "[t]here was no proper reason to bring this proceeding. Further, it
        appears that this whole proceeding has attempted to take an unconscionable
        advantage of Judge Olson to the advantage of Christian." The record before us
        supports Judge Sherlock's determinations and, Christian having advanced no
        persuasive argument to the contrary, we conclude Judge Sherlock did not abuse his

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       discretion in awarding sanctions under § 3-1-805(1)(d), MCA.
 10.   ¶There is merit, however, in Christian's argument that the District Court abused its
       discretion in entering Judgment awarding $2,903.14 in attorney fees and costs as a
       sanction without giving him an opportunity to challenge the amount of the fees and
       costs awarded. Christian does not challenge the timeliness of Judge Olson's
       counsel's Motion for Entry of Judgment in the amount of $2,903.14 and the related
       affidavit. Thus, we need not address the applicability of § 25-10-501, MCA, to the
       attorney fee portion of that motion. He does contend, however, that he was entitled
       to a reasonable opportunity to object to the amount stated in the motion, and we
       agree.
 11.   ¶Assuming arguendo the applicability of § 25-10-502, MCA, Christian had five
       days after notice of the filing of the motion for judgment and affidavit within which
       to object by filing a motion to tax costs. Here, the Motion for Entry of Judgment
       was filed and served on November 10, 1999, and the District Court granted the
       motion and entered Judgment for the requested amount on November 16, 1999. The
       day on which the motion was filed is disregarded, as are the intervening Saturday
       and Sunday, since the time for objecting was less than 11 days. See Rule 6(a), M.R.
       Civ.P. Under these time calculations and without any consideration of the 3-day
       "mail rule" provided in Rule 6(e), M.R.Civ.P., the fifth day on which Christian
       could have filed objections or a motion to tax costs would have been November 17,
       1999. Under this scenario, Christian did not receive the time to which he was
       entitled to challenge the amount of the fees and costs.
 12.   ¶Alternatively, assuming arguendo that the Uniform District Court Rules were
       applicable, Christian had an even longer time--10 days--to respond to the Motion for
       Entry of Judgment. See Rule 2(a), Unif.D.Ct.R. He did not receive the benefit of this
       time frame either.
 13.   ¶We conclude that the District Court abused its discretion in entering Judgment in
       the amount of $2,903.14, with interest, without providing Christian an adequate
       opportunity to challenge the amount requested. As a result, it is necessary to remand
       this case for further proceedings on the amount of attorney fees and costs awarded.
 14.   ¶2. Should Judge Olson be awarded attorney fees under Rule 32, M.R.App.P., as a
       sanction against Christian for bringing a frivolous appeal?

 15. ¶Judge Olson seeks damages pursuant to Rule 32, M.R.App.P., for having to defend
       against an appeal "taken without substantial or reasonable grounds[.]" Given our
       determination that this case must be remanded for further proceedings on the
       amount of the attorney fees and costs awarded, we conclude that Rule 32 is

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      inapplicable here and decline to award damages thereunder.
  16. ¶Reversed in part and remanded to the District Court, and referred to this Court's
      Commission on Practice.

/S/ KARLA M. GRAY




We concur:


/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER




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