                                                                                               07/21/2020
                                          DA 19-0448

              IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: DA 19-0448



                                        2020 MT 184N



ROBERT SAYERS,

               Plaintiff, Cross-Claim Defendant, and Appellant,

         v.

HARVEY WORRAL, DALE HANKINS, STEVEN GANNON,
Does and Roes 1-5,

               Defendants and Appellees,

CHOUTEAU COUNTY,

               Cross-Claimant and Appellee.


APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Chouteau, Cause No. DV-17-28
                       Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Daniel T Jones, Fernando J. Terrones, Gustafson Law Office, Conrad,
                       Montana

                For Appellee:

                       Susan B. Swimley, Attorney and Counselor at Law, Bozeman, Montana

                       Kellie G. Sironi, Attorney and Counselor at Law, Ambler, Pennsylvania



                                                   Submitted on Briefs: April 8, 2020

                                                               Decided: July 21, 2020


Filed:

                                     r--6ta•--df
                       __________________________________________
                                         Clerk
Justice Jim Rice 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     Robert Sayers appeals from the District Court’s denial of his motion pursuant to

M. R. Civ. P. 60(b)(4), seeking dismissal of a judgment declaring him to be a vexatious

litigant as void, and the District Court’s further determination that the Rule 60 motion itself

violated M. R. Civ. P. 11, necessitating the imposition of sanctions against Sayers. The

issues on appeal arise out of the long procedural history of the case, as well as a maelstrom

of nine prior actions brought against the County by Sayers.

¶3     This action began in 2017, when Sayers, pro se, sued Harvey Worrall, Dale Hankins,

and Steve Gannon, all officials or former officials of Chouteau County (Officials), in their

individual capacities, for actions taken in the course of their official duties. About the suit,

the District Court found that “Sayers’ claims against these men involved the same

transactions and occurrences as his complaints the previous years.” The County moved to

intervene in defense of the Officials and to request that Sayers be declared a vexatious

litigant. In its answer, the County styled its vexatious litigant request as a “cross claim,”

which would serve as the ground for Sayers’ later contention that the County’s request was

not properly made, and that the District Court was without authority to act on it.


                                               2
¶4     Sayers opposed the County’s intervention in a pro se pleading styled, in part,

“Motion to Disqualify Chouteau County to Intervene,” filed in November 2017, that

contested the right of the County to participate in the litigation, and offered various factual

contentions about the Officials’ individual actions. The District Court granted the County’s

motion to intervene over Sayers’ objection, and further granted Sayers “twenty-one (21)

days from the date of the issuance of this Order to [file] an answer to the Cross-Claim by

Chouteau County.” With his answer, Sayers requested reconsideration of the District

Court’s granting of the County’s intervention, asserting many of the same contentions.

Also, in a January 2018 filing, Sayers again opposed intervention, specifically, that Susan

Swimley, an attorney for the County, “should not be allowed to intervene.” Swimley had

never sought intervention as a party in the action. In an order that addressed numerous

pending motions, the District Court denied Sayers’ motion for reconsideration of the

intervention. Nonetheless, Sayers again challenged the County’s intervention in a Motion

for Dismissal of Cross-Claimant he filed in April 2018, raising many of the same

contentions.

¶5     After the defendant Officials moved for summary judgment and dismissal of the

claims against them, Sayers requested voluntary dismissal of the Officials from the action,

which the District Court granted, leaving only the County’s claim against Sayers for

declaration as a vexatious litigant, for which the County also requested summary judgment.

The District Court conducted a hearing and entered extensive findings of fact based upon

uncontested factual contentions, conclusions of law, and an order declaring Sayers to be a

vexatious litigant, on October 3, 2018. The District Court detailed the prior cases Sayers
                                              3
had litigated against the County, the allegations of each, and applied the Motta factors in

reaching its determination. See Motta v. Granite County Comm’rs, 2013 MT 172, ¶ 20,

370 Mont. 469, 304 P.3d 720. Judgment was entered. Sayers does not directly or

specifically challenge any of the District Court’s determinations in this regard. Throughout

the entirety of the litigation, the County’s request for a vexatious litigant declaration was

referred to by the parties and the District Court as the County’s “Cross Claim,” including

references to the parties by the District Court as “Cross-Claimant Chouteau County” and

“Cross-Claim Defendant Sayers.”

¶6     Sayers appealed from the judgment in October 2018, initially raising before this

Court issues regarding his original claims against the Officials, the County’s intervention,

and the vexatious litigant declaration. During the pendency of the appeal, legal counsel

entered an appearance on behalf of Sayers, and thereafter Sayers moved for dismissal of

the appeal, which was granted by this Court on December 27, 2018.

¶7     On December 26, 2018, Sayers filed in the District Court a Rule 60 motion to

dismiss the judgment that had declared him to be a vexatious litigant. Sayers contended

that, under the Rules of Civil Procedure and cases applying the Rules, a cross claim can

only be made against a co-party in litigation, but that Sayers was never a co-party to

Chouteau County, and therefore, the County’s cross claim was void. Sayers argued to the

District Court:

       Chouteau County’s cross-claim was improper. Therefore this Court’s
       Findings of Fact, Conclusions of Law and Order re Cross-Claimant
       Chouteau’s Motion for Summary Judgment/Vexatious Litigant stemming
       from that cross-claim is void as a matter of law. Mont. R. Civ. P. 60(b)(4)
       gives this Court the authority to dismiss that order because the [sic] is void.
                                             4
       Wherefore, Sayers respectfully request this Court for an order dismissing the
       Court’s Findings of Fact, Conclusions of Law and Order re Cross-Claimant
       Chouteau’s Motion for Summary Judgment/Vexatious Litigant.

In response, the County moved the District Court for imposition of sanctions under M. R.

Civ. P. 11, arguing the motion to dismiss had no basis in fact or law.1 In reply, Sayers

contended that “[p]ut simply, and despite the County’s attempts to mischaracterize Sayers’

factual basis, the fact that the County filed an improper cross-claim, thereby depriving this

Court of subject matter jurisdiction, is why Sayers filed his Motion to Dismiss.”

¶8     The District Court denied the Rule 60 motion, noting the motion was untimely, and

stating that Sayers’ cross claim argument elevated form over substance. It reasoned that,

“Chouteau County had to enter the lawsuit to defend the prior rulings on the same

allegations, present the immunity defenses, if necessary, and seek relief to stop Sayers’

repetitive and abusive filings. By ignoring these facts upon which Chouteau County

intervened, the Rule 60 Motion has no basis in fact.” Granting the County’s motion for

Rule 11 sanctions, the District Court stated: “The Rule 60 Motion is frivolous; without

legal basis; costs everyone unnecessary expenses of time and money; and increases delay

in resolving the vexatious litigant issue.” From this order, Sayers appeals.2




1
 Prior to filing its sanction request, counsel for the County wrote to Sayers’ counsel, stating the
motion “is a continued abuse of process, violates multiple Rules of Civil Procedure, and lacks
basis in fact and law,” and asking that the motion be withdrawn.
2
  Following the filing of the notice of appeal, this case was returned to the District Court for a
determination of attorney fees and, upon stipulation of the parties as to the amount of fees to be
assessed as a sanction, the matter returned to this Court and the appeal continued.

                                                5
¶9     Sayers first argues the District Court erred by denying his Rule 60 motion because

the cross claim filed by the County was improper under the Rules and failed to make the

County a party to the proceeding, rendering void the entire proceeding that followed to

judgment on the vexatious litigant issue. “Where the movant seeks relief under Rule

60(b)(4), on the ground the judgment is void, we review the district court’s ruling de novo,

as the determination that a judgment is or is not void is a conclusion of law.” Reservation

Operations Ctr. LLC v. Scottsdale Ins. Co., 2018 MT 128, ¶ 8, 391 Mont. 383, 419 P.3d

121 (internal quotations and citations omitted).

¶10    While Sayers correctly identifies the nature of a cross claim, his laser-like focus on

pleading distinctions fails to see the forest for the trees: that the entire case proceeded, and

was tried upon, the vexatious litigant request set forth in the County’s pleading, despite

being denominated a cross claim, and was correctly understood as such by all parties

throughout the proceeding, including the District Court, which referred to the parties as

“Cross-Claimant Chouteau County” and “Cross-Claim Defendant Sayers” for purposes of

the issue. Further, our cases have not required that a vexatious litigant request be made by

any particular pleading, or at any particular point in a proceeding. While it has been raised

in the district court by counterclaim, see Motta ¶ 7, it has also been raised by simple motion

or request during the pendency of either a trial or appeal. As we stated in McCann v.

McCann, 2018 MT 207, ¶ 38, 392 Mont. 385, 425 P.3d 682, wherein this Court declared

the litigant to be vexatious upon a request made during the appeal, “[s]uch sanctions may

be imposed based on a request included in a brief.” Thus, while the County’s request was

incorrectly denominated a cross claim instead of a counterclaim, or even a simple motion,
                                               6
this error did not invalidate the request or otherwise affect the proceeding. While Sayers

also argues that the County’s pleading did not sufficiently state a claim of vexatiousness

against him, we likewise disagree. The relief requested by the County was sufficiently

stated, and was understood as such by all parties. We therefore affirm the District Court’s

denial of Sayers’ Rule 60 motion to dismiss the judgment declaring him to be a vexatious

litigant.

¶11     A closer question is the separate issue of whether Sayers’ motion to dismiss,

premised upon his cross claim argument, was itself a violation of Rule 11 warranting the

imposition of sanctions. As we have explained regarding Rule 11:

        Rule 11 requires that when an attorney signs a pleading, the attorney has read
        it and to the “best of the attorney’s knowledge, information, and belief,
        formed after an inquiry reasonable under the circumstances . . . ,” the
        pleading is not “being presented for any improper purpose, such as to harass,
        cause unnecessary delay, or needlessly increase the cost of litigation.” M. R.
        Civ. P. 11. The “factual contentions must have evidentiary support . . . ,” and
        the “legal contentions [must be] warranted by existing law . . . .” M. R. Civ.
        P. 11.

Boland v. Boland (In re Estate of Boland), 2019 MT 236, ¶ 49, 397 Mont. 319, 450 P.3d

849. “Our standard of review of a District Court’s decision to grant or deny sanctions

under Rule 11 is de novo for the district court’s determination that the pleading, motion or

other paper violates Rule 11.”    Boland, ¶ 20 (citation omitted).

¶12     While Sayers’ motion to dismiss was no doubt a frustrating extension of litigation

over a declaration of vexatiousness that itself is not contested on appeal, upon de novo

review we cannot conclude that the pleading itself was without any basis in law or was an

argument not “warranted by existing law.” Boland, ¶ 49. Chouteau County’s cross claim

                                              7
was, technically, improperly denominated, which was detected and then pursued by

Sayers’ new counsel in a Rule 60 motion as an alternative avenue for relief, rather than

pursuing the appeal from the judgment filed by Sayers pro se. This particular issue had not

been previously raised in the litigation, or ruled upon. The District Court’s statement that

Sayers’ Rule 60 motion “is precluded by law in a case in which the District Court has

already recognized that Sayers has wasted the time and resources of the Court and

Chouteau County” seems to conflate vexatiousness and violations of Rule 11. Further, the

District Court’s determination that Sayers’ motion was precluded by res judicata overlooks

that a valid judgment is a prerequisite to application of that doctrine, and here, Sayers was

challenging, in the same proceeding, the judgment as invalidly entered. Therefore, we

reluctantly reverse the imposition of Rule 11 sanctions.

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

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. 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.

¶14    Affirmed in part and reversed in part.


                                                    /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
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