Opinion
Case No. DA 15-0336
12-01-2015
John D Runkle, an individual Plaintiff/Appellant, v. Duane Allen, an individual, Geoff Decker, An individual, and DOES 1 through 20 Defendants/Appelles,
APPEARANCES: John D Runkle, Plaintiff/Appellant 27744 Yaak River Road Troy, MT 59935 406-295-5463 Phone johnrunkle@aol.com Amy Guth 408 Mineral Avenue Libby, MT 59923 406-293-2322 Phone guth@montanasky.net APPELLANT PRO SE ATTORNEY FOR APPELLEE Geoff Decker Pro Se 357 Riverview Drive Troy, Montana 59935
APPELLANT'S REPLY BRIEF On appeal from the Montana Nineteenth Judicial District Court, County of Lincoln
Cause No. DV 13-261
Honorable James Wheelis Presiding APPEARANCES: John D Runkle, Plaintiff/Appellant
27744 Yaak River Road
Troy, MT 59935
406-295-5463 Phone
johnrunkle@aol.com Amy Guth
408 Mineral Avenue
Libby, MT 59923
406-293-2322 Phone
guth@montanasky.net APPELLANT
PRO SE
ATTORNEY FOR APPELLEE
Geoff Decker
Pro Se
357 Riverview Drive
Troy, Montana 59935 TABLE OF CONTENTS I. Summary of Argument In Reply ......................................... 6.
II. Argument .................................................................... 7.
III. APPELLEE/DEFENDANT'S RESPONSE IS MORE OF A PERSONAL ATTACK THAN A LEGAL ARGUMENT ....................................... 7
A. Appellee's personal attack on Appellant is unprofessional at best and should be stricken from the record ............................................ 8.
B. Appellant's divorce proceeding is irrelevant and grossly exaggerated by Appellee and his counsel .... 9
C. Appellant has never considered himself an expert in real estate law, nor is he an attorney as Appellant testified to ..................................... 9
D. Appellee's inference that Appellant committed some sort of fraud on the court in CV 12-97 is preposterous and unprofessional ...................... 10
E. Appellant's previous litigation is irrelevant to the matter at hand ............................................ 10
IV. APPELLANT'S BRIEF WAS NOT LATE AND ALTHOUGH NOT COMPLETELY CONFORMING TO THE REQUIREMENTS OF MONT.R.APP.P. 12, APPELLANT HAS PROVIDED THE INFORMATION REQUIRED AND THE ARGUMENT ................................. 11
A. Appellant's Opening Brief was not late ............... 11
B. Appellant has complied with Mont.R.App.P. 12 in spirit although regrettably there is a procedural error ......................................................... 12
V. APPELLEE'S RESPONSE IS CONTRADICTORY AS IT RELATES TO THE OWNERSHIP OF THE CABIN (STRUCTURE) ................................ 12
A. Appellee's argument misstates the District Court rulings, jumps to conclusions and contradicts himself in his argument ................................. 12
B. The property line in general split the structure down the middle at the time Appellee destroyed the structure .............................................. 13
C. Law enforcement warned Appellee to cease trespassing onto Appellant's property just prior to Appellee's destruction of the structure ........... 14
VI. APPELLEE FAILS TO MENTION IN HIS ARGUMENT THAT APPELLANT NEVER RECEIVED A HEARING PRIOR TO SANCTIONS BEING ISSUED UNDER RULE 11(B) .............................................. 15
A. Appellee's argument that Appellant was afforded the opportunity for a hearing to determine the reasonableness of attorney's fees fails to address the due process clause ...... 15
B Appellee's argument that the hearing on the reasonableness of the attorney's fees is not the hearing required to provide Appellant due process ............................................ 16
C The issue of the Rule 11(b) sanctions should not be remanded for a hearing, the sanctions should be reversed in their entirety ................ 16
VII. ALL ADDITIONAL STANDING ON APPELLANT'S CLAIMS FLOW FROM THE OWNERSHIP ISSUE OF THE CABIN (STRUCTURE) ............................................ 16
A. Ownership by Appellant either wholly or in part justifies the remand of all of Appellant's claims to be remanded for trial ............................... 17
B. Should the Court find that Appellant had no ownership issue either wholly or in part, then Appellant's claims all fail ............................. 17
C. If Appellant's claims have merit, the issue should be remanded back to the District Court for trial ................................................... 17
VIII. Conclusion ......................................................... 17
IX. Certificate of Service ....................................... 19
X. Certificate of Compliance ................................ 20
TABLE OF AUTHORITIES
Cases
Stipes v. First Interstate Bank of Poison, 2005 MT 295, 329 Mont. 320, 125 P.3d 591 ............................................................ 15
Byrum v. Andren, 2007 MT 107, Para. 32, 337 Mont. 167, 2007 P.3d 1062 ....................................................................... 15
State v. Toole County (1996), 278 Mont. 253, 262-63, 924 P.2d 693, 698 .............................................................. 15
Muri v. Frank, 2003 MT 316, ¶ 22, 318 Mont. 269, ¶ 22, 80 P.3d 77, ¶ 22 .......................................................... 15
Statutes
Mont. R. Civ. P. Rule 11 ........................................ 6, 15, 16
Mont. R. App. P. Rule 12 ................................................ 12
I. SUMMARY OF ARGUMENT IN REPLY
In his response brief, Appellee asserts claims that contradict the District Court orders and uses patently false or grossly misleading statements as a personal attack on Appellant as the basis for his Response.
Appellee also claims that the filing of Appellant's brief was late and that Appellant's opening brief does not conform to Mont.RApp.P. 12.
Appellee's Response is flawed in that it states both that Appellee (Allen) owned a portion of the cabin and later states in the Response that Appellee (Allen) owned the entire cabin. The District Court only ruled that Appellee owned a portion of the cabin and didn't even clarify that point. The District Court's ruling was that Appellant did not own the portion of the cabin lie on Appellee's property. Additionally, the Response fails to mention that Appellee destroyed the entire cabin, even the portion that the District Court implied was owned by Appellant.
Appellee argues that Appellee had the right to remove the entire structure but fails to explain how the removal of the entire structure transcended to Appellant's ownership or partial ownership. Rather than explain this dilemma, Appellant misstates the District Court's ruling by stating that Appellee owned the entire structure and that Appellant's portion of the structure was left intact. This would mean that Appellee removed only half the structure which obviously did not occur as this was a constructed building and is nonsensical as the structure was a fixed cabin on a foundation.
Appellee argues that Appellant introduces for the first time the issue of joint ownership in regards to waste and requests that the Supreme Court should not review this for the first time on appeal. One of the basis for Appellant's appeal is not newly introduced evidence, the question of joint ownership was introduced and ruled on by the District Court in its ruling. Appellant did not request a ruling for partial ownership, the District Court implied and ruled that the structure was only half owned by Appellee and half owned by Appellant. Therefore, Appellant has not introduced new argument, Appellant is basing his appeal in part on the District Court's own ruling of partial ownership.
In regards to the issue of Trespass, Appellee's Response argues that Appelle was under a duty to remove the structure as it was owned by Appellee, again ignoring the fact that the structure was in dispute and that the District Court ruled that Appellee owned only a portion of the structure.
Appellee argues that no intentional infliction of emotional distress occurred by responding that the stress must occur from a wrongful act. Appellee responds that this did not occur although based upon numerous trespasses and requests to cease the trespass, Appellee certainly committed a number of "wrongful" acts.
In regards to Appellee's argument on Rule 11(b) sanctions, Appellee fails to point out (as Appellant did) that no hearing was scheduled before the issue of sanctions was ruled on as is required. Appellee is correct in that Appellant did not appear at the hearing to determine the reasonable amount of the sanctions as the District Court was required to hold a hearing before granting sanctions and this was clearly not done.
II. ARGUMENT
III. APPELLEE/DEFENDANT'S RESPONSE IS MORE OF A PERSONAL ATTACK THAN A LEGAL ARGUMENT A. Appellee's personal attack on Appellant is unprofessional at best and should be stricken from the record.
Appellee's Counsel apparently decided that personally attacking Appellant was the way to get her point across to this court. Appellee's response is replete with numerous attacks that Appellant feels compelled to point out to the court and would like to illustrate these specious, patently false, grossly misleading statements in this attack by pointing out just how many irrelevant and unnecessary statements Appellee's counsel makes in her response:
1. "Runkle is the self proclaimed expert in real estate matters and real estate law." (Appellee's Response Page, 4, Para. 4)
2. "Runkle has an extensive history in being sued and initiating lawsuits as a pro se litigant" (Appellee's Response, Page 4, para. 5)
3. "Runkle, a self proclaimed amateur lawyer......" (Appellee's Response, Page 7, Para 3, line 1)
4. "Runkle judicially confessed in pending divorce proceedings that he had no interest in any real property in Montana."
5. "in pro se litigation, Runkle attempted to abuse the legal system for self gain. For example, in prior pro se divorce proceedings, Runkle denied ownership of any real property (DV 13-26)."............"If Runkle owned no real property, the court could award no real property to his wife. "(Appellee's Response, Page 21, Para 1)
6. In another pro se proceeding, Runkle sued to collect damages from a defaulting party. Runkle failed to mention anywhere in his pleadings
that he had been compensated by an insurance company. (CV 12-97)." (Appellee's Response, Page 21, Para 1)
Appellant feels compelled to defend himself from the personal attacks to avoid being smeared in front of this court. If what Appellee's counsel says is true, Appellant should be facing charges for perjury or fraud. However, the things that Appellee's counsel has implied or expressly claimed are false and unprofessional allegations as this attempted smear of Appellant requires a short defense in reply.
B. Appellant's divorce proceeding is irrelevant and grossly exaggerated by Appellee and his counsel.
Suffice it to say that in Appellant's divorce proceedings, both Appellant and his former spouse are on good terms and both filed a document withdrawing an erroneous affidavit and filed the withdrawal document with the court. The divorce proceeding was withdrawn and finalized overseas where Appellant's former spouse resides. There is not and never has been an issue of disputed property between Appellant and his former spouse. This attack on Appellant is unnecessary and irrelevant to the issue at hand. C. Appellant has never considered himself an expert in real estate law, nor is he an attorney as Appellant testified to
It is true that Appellant has been a real estate broker for over 25 years and therefore is an expert in some areas of real estate. However, Appellant NEVER stated that he was an expert in real estate law and continually advised Appellee's counsel that he was not an attorney.
Appellant's answer during testimony (Runkle depo) excerpts:
page 47, lines 17,18; "From a legal standpoint, that's something for the courts to decide, not for an individual to decide"D. Appellee's inference that Appellant committed some sort of fraud on the court in CV 12-97 is preposterous and unprofessional.
page 67, lines 6,7; "I'm aware that there is some law, but if you 're asking me to quote it, I can't. I'm not an attorney."
page 78, lines 8,9; "You're looking for a legal conclusion that I can't give you. I'm not a judge or an attorney."
In CV 12-97 Appellant testified in open court during the "prove up" phase as to the receipt of some insurance proceeds which were not even half of the amount of damage that was caused by the defaulting party. (The default occurred almost 2 years into the litigation after defendant failed to further respond.) Additionally, Appellant openly testified in this matter in open court at the "prove up" as well as testifying at his deposition in this matter as to the receipt of insurance proceeds which did not come close to covering the damage by stating; "I think I received about 90,000, but there was almost 200,000 in damage" (Runkle depo; page 20, lines 6-7, referring to CV 12-97). Therefore, as Appellee's counsel was the person conducting the deposition, Appellee's counsel was aware that her statement was false and misleading. Appellant never failed to inform anyone of the insurance proceeds received. . This attack on Appellant is unnecessary and irrelevant to the issue at hand. E. Appellant's previous litigation is irrelevant to the matter at hand
It is true that Appellant has been involved in multiple litigation scenarios. (In fact, Appellant was sued in this small community for non-disclosure of a septic system being inoperable. The case was dismissed as having no basis). However, having operational real estate offices in seven states leaves the high probability that an owner/broker will be sued on numerous occasions for multiple issues thoughout numerous jurisdictions. Appellant is not normally the initiator of the litigation and for Appellee's counsel to twist the words of Appellant during his deposition is unprofessional at best. (Runkle Depo., p. 6, lines 15-20, Affidavit of John Runkle, D.C. Doc. 38) demonstrating the fact that Appellant had offices and real estate broker's licenses in seven states.
These types of personal attacks have no place in a District Court document, much less a document filed with the Supreme Court and Appellant objects to the content of the statements and asks that they be stricken from the court record.
IV. APPELLANT'S BRIEF WAS NOT LATE AND ALTHOUGH NOT COMPLETELY CONFORMING TO THE REQUIREMENTS OF MONT.R.APP.P. 12, APPELLANT HAS PROVIDED THE INFORMATION REQUIRED AND THE ARGUMENT
A. Appellant's opening brief was not late
Appellee states that Appellant's opening brief was late but taking into account that the Notice was given on September 3rd, 2015 and the clock began the following day on September 4th, Appellant had until October 4th, 2015 to file unless the date landed on a weekend (which it did) and therefore would have until the next business day which was October 5th, 2015. (The Brief was filed on October 5th, 2015). Even if the clock
began on September 3rd, 2015 the 30th day would still land on a weekend and therefore, Appellant would have until the following business day which would be October 5th, 2015.
B. Appellant has complied with Mont.R.App.P. 12 in spirit although regrettably there is a procedural error
In regards to Appellant not complying to Mont.R.App.P. 12, Appellant although not completely in compliance has provided the information necessary to review the case. If the Supreme Court decides the filing does not comply with Mont.R.App.P. 12, Appellant requests the court return the file to be properly briefed or give leave to Appellant to refile without prejudice with leave to amend the opening brief. Appellant requests some leeway as a pro se Appellant as Appellant has never appeared or filed any documents with the Supreme Court previously.
V. APPELLEE'S RESPONSE IS CONTRADICTORY AS IT RELATES TO THE OWNERSHIP OF THE CABIN (STRUCTURE)
A. Appellee's argument misstates the District Court rulings, jumps to conclusions and contradicts himself in his argument
In Appellee's argument regarding cabin ownership, Appellee initially states in pertinent part that Allen owned a portion of the cabin that lie on his property:
"The Court correctly ruled that Allen owned that portion of the cabin located on Allen's property" (Appellee's Response, Page 13, Para 3)
Appelle then contradicts that analysis of the court's ruling by stating that Appellee owned the entire cabin.
"The district court correctly ruled that Allen owned the cabin located on Allen's property" (Appellee's Response, Page 17, Para. 2)
Appellee then states that Appellee only removed that portion of the cabin that Appellee owned and left the "encroaching portion" on Appellant's property.
"There is no dispute that Allen left the encroaching portion of the cabin on Runkle's property." (Appellee's Response, Page 15, Para.2) {In fact, there is a huge dispute as Allen (Appellee) tore the entire building off of its foundation and left nothing but a destroyed porch on Appellant's property.} "How they would attack the problem never became known, because your client destroyed the cabin before we could get that far." (Runkle depo; page 59, lines 10-12)
Additionally, Appellee states facts not in evidence by stating that Appellant knew that the cabin was located on Allen's property (This is patently false. Both Appellant and Appellee were aware that the building was split approximately 50/50 by the boundary line with all access, ingress, egress and approach on Appellant's property) by stating the following:
"In the present case, Runkle claimed ownership to a cabin that Runkle knew was located on Allen's property." (Appellee's Response, Page 21, Para. 2).
B. The property line in general split the structure down the middle at the time Appellee destroyed the structure.
The only real relevant fact germane to the above contradictions is that the cabin was found to be bisected almost perfectly on a 50/50 basis with half the building on Appellant's property and half the building on Appellee's property and that Appellee tore the ENTIRE structure from its foundation and destroyed it. There was no "encroaching" portion of the building left on Appellant's property other than a destroyed porch (torn from the building during the removal by Appellee).
C. Law enforcement warned Appellee to cease trespassing onto Appellant's property just prior to Appellee's destruction of the structure.
Appellee's attempt to argue that Appellant had no ownership interest at all (contradicting the District Court's own ruling) or that any portion of Appellant's ownership portion of the cabin was left alone is ludicrous. Appellant's own testimony which were never contradicted by Appellee at any time during the litigation in regards to the destruction of the structure and the trespass issue are as follows in pertinent part:
"And that's what they were looking into at the time your client decided to destroy the cabin" (Runkle depo. Page 59, lines 1,2)
"How they would attack the problem never became known, because your client destroyed the cabin before we could get that far." (Runkle depo; page 59, lines 10-12)
"Well, your client went up and cut my lock off and tore my no-trespassing signs down on the building, which he admitted he did in the admissions. He also admitted that he trespassed on to my property. When I contacted the sheriff's office, I said, Listen, I don't want anyone arrested, I just want you to explain to Mr. Allen that he can't just go trespassing on my property and cutting off my locks and my no-trepassing signs. And they did that, and it's noted in the police report that they warned him to stop criminally trespassing on to my property." (Runkle depo; page 60, lines 10-20)
It was after Appellee had been warned by law enforcement not to criminally trespass on Appellant's property that Appellee, in a fit of anger tore the cabin off of its foundation and destroyed the entire structure including Appellant's portion of the structure.
VI. APPELLEE FAILS TO MENTION IN HIS ARGUMENT THAT APPELLANT NEVER RECEIVED A HEARING PRIOR TO SANCTIONS BEING ISSUED UNDER RULE 11(B)
A. Appellee's argument that Appellant was afforded the opportunity for a hearing to determine the reasonableness of attorney's fees fails to address the due process clause.
Appellee quotes Stipes v. First Interstate Bank of Poison, 2005 MT 295, 329 Mont. 320, 125 P.3d 591, citing as authority in Byrum v. Andren, 2007 MT 107, Para. 32, 337 Mont. 167, 2007 P.3d 1062. (Appellee's Response, Page 23, Para 2)
What Appellee fails to point out is that in Stipes v. First Interstate Bank of Poison, the Supreme Court (as they have on numerous occasions) ruled that the District Courts MUST hold a hearing prior to issuing sanctions. State v. Toole County (1996), 278 Mont. 253, 262-63, 924 P.2d 693, 698, and in Muri v. Frank, 2003 MT 316, ¶ 22, 318 Mont. 269, ¶ 22, 80 P.3d 77, ¶ 22. In this case, the District Court issued a ruling that sanctions were granted and held a hearing to determine the amount and reasonableness. The Court in Stipes did not provide for such an after the fact ruling. Rather, the Supreme Court ruled that the hearing must be held before sanctions are issued thereby giving the possibly sanctioned party a right to due process and a chance to be heard before issuing sanctions.
B. Appellee's argument that the hearing on the reasonableness of the attorney's fees is not the hearing required to provide Appellant due process.
Appellee argues that the hearing on the reasonableness of attorney's fees was adequate notice to provide due process to Appellant. In Stipes, the court found that was not the case by stating as follows: "Moreover, in failing to follow our case law, the Court simply ignores the fact that the grounds for imposing the sanction and the amount and reasonableness of the sanction are discrete legal issues. These issues require different proof and involve different considerations."
The hearing for "amount and reasonableness" of attorney's fees is not the same hearing required for due process.
C. The issue of the Rule 11(b) sanctions should not be remanded for a hearing, the sanctions should be reversed in their entirety.
In this case, the issue shouldn't even be remanded for a due process hearing, the Rule 11(b) sanctions order should be reversed. There are plenty of issues still to be sorted out, especially the issue regarding the ownership of the cabin and although the court may or may not find Appellant's pleadings first class work, the pleadings and claims are meritorious as outlined in the pleadings themselves.
Even if the court denied Appellant's appeal other than the Rule 11(b) sanctions order, Appellant's conduct certainly did not rise to the level of sanctionable conduct and therefore the order should be reversed, not remanded for a hearing in front of a District Court judge that has already determined the sanctions without due process.
VII. ALL ADDITIONAL STANDING ON APPELLANT'S CLAIMS FLOW FROM THE
OWNERSHIP ISSUE OF THE CABIN (STRUCTURE)
A. Ownership by Appellant either wholly or in part justifies the remand of all of Appellant's claims to be remanded for trial.
If Appellant is found to own the structure and that it encroaches on Appellee's property or if it is found (as the District Court ruled) that Appellant owns a portion of the cabin, all other claims are thus legitimized and necessarily flow from the ownership issue.
B. Should the Court find that Appellant had no ownership issue either wholly or in part, then Appellant's claims all fail
Should the Supreme Court find that Appellant had no ownership of the cabin either in whole or in part, then all of Appellant's claims necessarily fail with the exception of the Rule 11(b) sanctions order issued without due process and therefore Appellant's request in this appeal would also necessarily be denied (with the exception of the Rule 11(b) sanctions.)
C. If Appellant's claims have merit, the issue should be remanded back to the District Court for trial.
Should the Supreme Court find that Appellant owned the cabin or a portion of the cabin or mat the issue needs to be remanded and tried, then all claims have sufficient standing to proceed and to be remanded back to the District Court for trial other than the Rule 11(b) sanctions issue which should be reversed, not remanded for hearing in front of the same District Court judge that has already issued sanctions against Appellant.
VIII. CONCLUSION
Appellee's argument is a personal attack rather than a legal argument in an attempt to smear Appellant in front of this court.
Additionally, Appellee fails to state how the partial ownership interest the District Court awarded to Appellee justifies the destruction of the entire structure.
Appellee also fails to address the requirements that Appellant was owed a duty of due process and a hearing prior to the imposition of Rule 11(b) sanctions.
There are still a myriad of issues to be resolved at trial including ownership of the cabin which was only partially ruled on by the District Court and all remaining claims which flow from the ownership issue of the cabin. WHEREFORE, APPELLANT prays to this honorable court for the following:
1. Reversal of the District Court's order granting sanctions under Rule 11(b).
2. Remand to trial on all remaining issues including waste, intentional infliction of emotional distress, trespass, conversion, ownership issue of the cabin, etc.
3. The court strike from the record the statements made in Appellee's Response brief as the Court deems proper.
4. Sanctions against Appellee for the personal attack on Appellant which serves no purpose.
5. Return of the file with leave to refile Appellant's opening brief to correct any procedural errors should the Court so find it necessary.
Dated this 22nd day of November, 2015
/s/_________
27744 Yaak River Road
Troy, MT 59935
406-295-5463
johnrunkle@aol.com
John D Runkle,
Appellant in propria
persona
CERTIFICATE OF SERVICE
I, Appellant in the above entitled action do hereby certify that on the 1st day of December, 2015 I mailed a true and correct copy of the foregoing Appellant's Reply Brief, by mailing such copy, addressed to: The Law Offices of Amy Guth
Attorney for Appellee Duane Allen
408 Mam Avenue
Libby, MT 59923 Geoff Decker
Pro Se
357 Riverview Drive
Troy, MT 59935 /s/
John D. Runkle
Pro Se Appellant
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief is proportionally spaced typeface of 14 points and does not exceed 5,000 words. Additionally, the brief is not more than 14 pages when deducting the pages utilized for Table of Contents, Authorities and Certificates of Service and Compliance. Dated: December 1st, 2015 /s/
John D. Runkle
Appellant Pro Se