Gehring v. State

2006 MT 105N

• Court: Montana Supreme Court
• Decided: May 9, 2006
• Docket: 05-233
• Status: Published

Opinion

No. 05-233

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 105N

JACK B. GEHRING,

Plaintiff and Appellant, v.

STATE OF MONTANA; LEWIS AND CLARK COUNTY, MONTANA; CITYOF HELENA, MONTANA; RAY TALLEY; and BILL BAHNY,

Defendants and Respondents.

APPEAL FROM: The District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2004-624, Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jack B. Gehring, pro se, Helena, Montana

For Respondents:

Honorable Mike McGrath, Attorney General; John A. Kutzman, Assistant Attorney General, Helena, Montana (State of Montana)

Allen B. Chronister, Harlen, Chronister, Parish & Larson, P.C., Helena, Montana (Lewis & Clark County)

Chad E. Adams, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana (City of Helena)

K. D. Feeback, Gough, Shanahan, Johnson & Waterman, Helena, Montana (Talley)

Julia W. Swingley, Drake Law Firm, P.C., Helena, Montana (Bahny)

Submitted on Briefs: November 16, 2005 Decided: May 9, 2006

Filed:

__________________________________________ Clerk Justice Jim Rice 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. It shall be filed

as a public document with the Clerk of the Supreme Court and its case title, Supreme

Court 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 Jack Gehring (Gehring) appeals the orders entered in the First Judicial District

Court, Lewis and Clark County, dismissing the complaint against the Respondents. We

affirm.

¶3 We consider the following issue on appeal:

¶4 Did the District Court err by dismissing the complaint against the Respondents?

BACKGROUND

¶5 Gehring filed a complaint against the State of Montana; Lewis and Clark County,

Montana; City of Helena, Montana; Ray Talley; and Bill Bahny (collectively,

Respondents) demanding “$10,000,000.00 from all government defendants, and $50,000

from Ray Tally [sic], and Bill Bahny; collected by the Court, paid to Gehring,” implying

that the Respondents have not controlled noxious weeds on their property and that the

weeds have spread to Gehring’s property.

¶6 In an order dated January 24, 2005, the District Court dismissed the complaint

against the State for failure to comply with § 2-9-301, MCA, and granted Gehring twenty

days to amend the complaint to state a proper claim against the remaining parties. On

2 February 3, 2005, Gehring filed a document denominated “Reply to Order of Judge

Honzel recieved [sic] Jan. 26, 2005.” In an order dated March 4, 2005, the District Court

granted the remaining Respondents’ motions to dismiss for failure to state a claim upon

which relief could be granted.

¶7 Gehring appeals.

STANDARD OF REVIEW

¶8 A district court’s grant of a motion to dismiss is a conclusion of law that we

review for correctness. Bar OK Ranch Co. v. Ehlert, 2002 MT 12, ¶ 31, 308 Mont. 140,

¶ 31, 40 P.3d 378, ¶ 31.

DISCUSSION

¶9 Did the District Court err by dismissing the complaint against the

Respondents?

¶10 On appeal, Gehring argues the merits of his damage claim, including assertion of a

constitutional remedy, but fails to present any argument concerning the issue this Court

must address—that is, whether the District Court erred in dismissing his complaint

because it failed to properly set forth a claim. Rule 23(a)(4), M.R.App.P., requires a

party to argue “the contentions of the appellant with respect to the issues presented, and

the reasons therefor, with citations to the authorities, statutes and pages of the record

relied on.” Gehring does not argue with respect to the issue presented nor cite to

authorities that would support a conclusion that the District Court’s dismissal of the

complaint was error. “Under Rule 23, M.R.App.P., it is not this Court’s obligation to

3 conduct legal research on appellant’s behalf, to guess as to his precise position, or to

develop legal analysis that may lend support to his position.” In re Estate of Bayers,

1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19. Therefore, we conclude that

the District Court did not err by dismissing the complaint against the Respondents.

¶11 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS

Justice James C. Nelson concurs.

¶12 I concur in our Opinion to the extent that it affirms the trial court’s dismissal of

Gehring’s complaint.

¶13 That is not the whole story of this case, however. As noted in the Court’s

Opinion, Gehring’s pro se suit in District Court claimed $10,000,000.00 in damages from

all of the government defendants and $50,000.00 from two private citizen defendants

based on allegations that the defendants allowed noxious weeds to propagate and go to

seed on his property. Without boring the reader with an exhaustive recitation of the

4 procedural history of this case, suffice it to say that, as the Opinion points out, eventually

the trial court dismissed Gehring’s complaint, as amended, for failure to state a claim,

under Rule 12(b)(6), M.R.Civ.P. Among other problems noted by the court was that

Gehring failed to follow procedural rules and that his pleadings were so vague and

ambiguous that a party could not reasonably be required to frame a response.

¶14 Gehring appealed, and filed his “opening brief” on April 28, 2005, a copy of

which is attached hereto. (Gehring’s reply briefs were no better).

¶15 As one can see, Gehring’s brief on appeal consists of two and one-half

handwritten pages (there is a half page certificate of service). The brief does not even

minimally comply with the Montana Rules of Appellate Procedure. Gehring makes no

coherent arguments; he cites no authority; and he refers to irrelevant facts which are not

part of the record. In short, Gehring’s brief is about as worthless a vehicle for appellate

review of a trial court’s decision, as I have encountered in nearly thirteen years on the

bench.

¶16 Not surprisingly, and as they should have, counsel for the various Respondents

moved to dismiss this appeal citing, among other authorities, Rule 23(a)(4), M.R.App.P.

On June 1, 2005, while acknowledging that Rule, we entered our Order denying these

various motions on the ground that our policy is to favor “trial” on the merits (although

this was an appeal, not a trial); that we favor deciding a case on its merits and not on

procedural grounds (although there were no apparent merits on which to decide this

case); and because—in an untypical outpouring of charity—“Gehring’s brief on appeal,

5 though not a model of clarity or conformity, deserves consideration.” I dissented from

our Order, noting that there was no good reason why this Court, the District Court, and

counsel for the Respondents should have to waste time trying to respond to Gehring’s

brief or make his sow’s ear into a silk purse.

¶17 However, having thus bestowed an undeserved aura of legitimacy on Gehring’s

briefing effort, counsel (from some of the most prestigious law firms in Helena) duly

briefed the case on appeal. Browning, Kaleczyc, Berry & Hoven, P.C., representing the

City of Helena, filed a twelve page brief with an appendix; Gough, Shanahan, Johnson &

Waterman, representing Ray Talley, filed a twenty-eight page brief with exhibits; Harlen,

Chronister, Parish & Larson, P.C., representing Lewis and Clark County, filed a six page

brief; the Agency Legal Services Bureau, representing the State of Montana, filed a

sixteen page brief with an appendix; and the Drake Law Firm, P.C., representing Bill

Bahny, filed a nine page brief. Each of the Respondents’ counsel made excellent and

cogent arguments, cited substantial authority, and complied fully with the Montana Rules

of Appellate Procedure. In total, counsel for the government and citizen defendants filed

seventy-one pages of briefs, in response to Gehring’s two and one-half pages of claptrap.

¶18 And, who could fault counsel? Their clients were faced with a lawsuit claiming

millions of dollars of damages on which we had thrown “holy water” by refusing to grant

obviously meritorious motions to dismiss a patently unmeritorious appeal. In a Court

which invokes Rule 23(a)(4), M.R.App.P. with near religious ferocity to dump issues and

6 cases that are not appropriately argued and authoritatively supported,1 we, for some

reason, determined to ignore that Rule in a case which best exemplifies why the Rule

exists at all. That counsel should, therefore, take us at our word and vigorously defend

their clients should come as no surprise to anyone.

¶19 The upshot of all this is that we have now come around to the decision that we

should have come to before we put counsel for the Respondents to the time and effort of

briefing an appeal that was “DOA” at the Clerk’s office. Worse, we have saddled the

taxpayers with, who knows, how many thousands of dollars in legal fees and costs—

which counsel earned in preparing and filing excellent briefs, and in achieving a

favorable and appropriate result for their clients. And, we have wasted this Court’s

limited time and resources in having to read all the stuff that was filed in this case and

then write opinions thereon.

¶20 The October 2005 issue of the Montana Lawyer details the “profound level” of

unmet legal needs in this State and the critical disparity in access to justice between those

with money to hire attorneys and those without. Every year more and more poor and

middle class citizens with meritorious claims are forced to represent themselves in court

proceedings; and hardly a month goes by that this Court and the State Bar do not exhort

lawyers to higher commitments to pro bono work. Every year the State Bar and other

1 Since January 1, 2000, Rule 23(a)(4), M.R.App.P., has been invoked 134 times in our jurisprudence, and this figure does not include the hundreds upon hundreds of unpublished opinions and orders in which we have utilized the Rule. 7 organizations sponsor seminars and symposia dealing with equal access to justice issues.

There are simply not enough lawyers and court resources to go around.

¶21 Sadly, Gehring, (and others like him who consistently abuse the court system) are

an affront to all those pro se litigants trying their best to prosecute legitimate claims

within the rules of our court system. The Gehrings of this State waste the time and

resources of the courts, and they squander the time of attorneys, who might otherwise

have more time to devote to pro bono work and to helping people with real legal

problems.

¶22 While I concur in our decision, I would remand this case to the District Court,

pursuant to Rule 32, M.R.App.P., with instructions to hold an evidentiary hearing and to

then award to the Respondents and against Gehring each and every penny of legal fees

and costs incurred in their defense of this patently frivolous appeal. If nothing else, the

taxpayers should not have to pick up the tab for this farce.

¶23 With that caveat, I concur.

/S/ JAMES C. NELSON