                                            DA 06-0474

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2007 MT 143N


CLAY ROSELLE,

              Plaintiff and Appellant,

         v.

DAVIS, WARREN & HRITSCO,
WILLIAM A. HRITSCO, and
WILLIAM L. KNOX,

              Defendants and Respondents.


APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Beaverhead, Cause No. DV-06-12915
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Clay Roselle, Pro Se, Lima, Montana

                For Respondent:

                        J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana

                        Neil G. Westesen and Matthew F. McLean, Crowley, Haughey,
                        Hanson, Toole & Dietrich, P.L.L.P., Bozeman, Montana


                                                     Submitted on Briefs: February 21, 2007

                                                                 Decided: June 12, 2007

Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It 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 West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Clay Roselle (Roselle) appeals from the order of the Fifth Judicial

District Court granting summary judgment in favor of the Respondents. We affirm and

remand.

¶3     William Knox (Knox) is a licensed appraiser. In the fall of 2001, at the request of

the attorney for Roselle’s wife in a dissolution proceeding, he appraised the Roselles’

property. The appraisal was presented to the court at the dissolution trial July 31 through

August 1, 2003. Roselle appealed the property division in the dissolution decree and the

court’s subsequent award of attorney fees and costs. This Court affirmed the district

court in Roselle v. Roselle, 2005 MT 298N, 330 Mont. 399, 126 P.3d 506. Roselle then

filed this action, naming Knox, the appraiser, as well as Mrs. Roselle’s attorney and law

firm—William Hritsco (Hritsco) and Davis, Warren, and Hritsco.

¶4     The District Court granted summary judgment on the following claims made by

Roselle: (1) legal malpractice; (2) malicious prosecution; and (3) fraud. The court

determined that Roselle presented no legal argument regarding the claim of legal

malpractice, as he was not nor ever had been a client of Hritsco or Davis, Warren, and
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Hritsco. Since Roselle was not a client, the court held that there was no duty owed to him

by Hritsco or his firm, and there could be no viable claim for legal malpractice. With

regards to the second claim, malicious prosecution, the District Court determined that the

elements of the claim are “simply not present.” The court also determined that, as to the

fraud claim, Roselle “has not pleaded any of the nine elements of fraud.” In addition, the

court held that the two-year statute of limitations bars any claim for fraud. Further, the

court held that “all of the complaints of fraud have been previously raised, considered,

and rejected both by this Court and the Montana Supreme Court,” and thus the doctrine

of collateral estoppel prohibits repetitive litigation of the same issues.

¶5     Roselle states his issue on appeal as follows:

       Judicial Officers, Attorney’s representation to the courts, must have
       accountability to the people effected by a standard of justice of their
       making, where under Oath to the courts and the people to maintain the
       actual truth and the laws of the state. The attorney’s liability is self evident
       (Thus the Complaint).

¶6     Knox asks this Court to dismiss the appeal because Roselle’s statement of the

issue does not state grounds “for any coherent or cognizable appeal of the grant of

summary judgment by the District Court generally.” Knox notes that he is neither a

judicial officer nor an attorney and that “[w]hatever the issue is, it does not involve him.”

Knox also requests that this Court impose sanctions under M. R. App. P. 32, possibly in

the form of an award of his attorney fees in this action, both in the District Court and

here, for defending this meritless action.

¶7     Hritsco argues that Roselle’s brief fails to comply with the Montana Rules of

Appellate Procedure, and consequently, his appeal should be dismissed. Alternatively,
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Hritsco argues that the District Court correctly granted summary judgment in favor of

himself and Knox, and this judgment should be affirmed. Hritsco claims that “[t]his

appeal, like Mr. Roselle’s five (5) previous trips to this Court, is frivolous. Rather than

seeking sanction and fees under Mont. R. App. P. 32, however, the Hritsco Defendants

simply want this matter resolved.”

¶8     This Court reviews a summary judgment ruling by applying the same evaluation

that the district court utilizes under M. R. Civ. P. 56. Bruner v. Yellowstone County, 272

Mont. 261, 264, 900 P.2d 901, 903 (1995). A party is entitled to summary judgment if it

establishes that there are no genuine issues of material fact and that it is entitled to

judgment as a matter of law. M. R. Civ. P. 56(c); Miller v. Herbert, 272 Mont. 132, 137,

900 P.2d 273, 276 (1995). The moving party has the initial burden of showing that no

genuine issues of material fact exist. Bruner, 272 Mont. at 264, 900 P.2d at 903. Once

the moving party satisfies this initial burden, the burden then shifts to the non-moving

party to prove, by more than mere denial and speculation, that a genuine issue of material

fact does exist. Bruner, 272 Mont. at 264, 900 P.2d at 903.

¶9     As a general rule, this Court will not impose sanctions pursuant to M. R. App. P.

32 unless the appeal is entirely unfounded and intended to cause delay or unless counsel’s

actions otherwise constitute an abuse of the judicial system. Collins v. Collins, 2004 MT

365, ¶ 34, 324 Mont. 500, ¶ 34, 104 P.3d 1059, ¶ 34. In this case, we determine Roselle’s

appeal is without merit and has caused unnecessary delay. We therefore grant Knox’s

request for attorney fees in defending this appeal. Although Knox also requested

sanctions for defense of this action from its inception, sanctions were not requested or
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granted in the District Court. Pursuant to M. R. App. P. 32, we award sanctions to Knox

for the appeal only and remand to the District Court for a determination of a reasonable

amount of such fees and costs to be awarded to Knox.

¶10      It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶11      The District Court’s judgment is affirmed as to all parties and this case is

remanded for further proceedings consistent with this opinion.



                                                    /S/ JIM RICE


We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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