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Montpelier v. Moncier

Court of Appeals of Tennessee, Knoxville

June 1, 2017


          Session August 10, 2016

         Appeal from the Circuit Court for Knox County No. 3-554-15 Deborah C. Stevens, Judge

         This is a common law abuse of process case. The plaintiffs contend that the defendant attorney abused otherwise lawful process without authorization and for an improper purpose. The trial court dismissed this case as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6). We affirm.

         Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court

         Affirmed; Case Remanded

          Dale J. Montpelier and Joseph F. Della-Rodolfa, Knoxville, Tennessee, appellants, pro se.

          Herbert S. Moncier, Knoxville, Tennessee, appellee, pro se.

          John W. McClarty, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., joined, D. Michael Swiney, C.J., filed separate dissenting opinion.



         I. BACKGROUND

         This case[1] arises from a contentious dispute over the ownership of a health care facility, Brakebill Nursing Home, Inc. After their divorce in 1992, W. Lynn Brakebill[2]and Jack F. Brakebill each owned 50 percent of the common stock of the facility. The record reveals a tense relationship existed between the two former spouses. Mrs. Brakebill was eventually diagnosed as mentally incompetent.

         According to Mr. Brakebill, in December 2011, W. Lynn Brakebill transferred all of her 255 shares of the nursing home to her grandchildren. Shortly thereafter, in February 2012, she allegedly transferred 205 shares of the same stock to her daughter and 25 shares of the same stock to her daughter's husband. W. Lynn Brakebill responded that the purported transfers lacked any intent to actually transfer ownership because she lacked legal capacity.

         The defendant/appellee in the instant case, attorney Herbert S. Moncier, represented W. Lynn Brakebill in In re Criminal Contempt of Court: Jack F. Brakebill, Knox County Chancery Court, No. 156011-1 (the "Contempt Case"). Moncier further filed four other Knox County Circuit Court lawsuits against Jack F. Brakebill on behalf of clients ("the Circuit Court Cases"). The plaintiffs/appellants in this case, attorneys Dale J. Montpelier and Joseph F. Della-Rodolfa, ("Attorneys") represent Mr. Brakebill. The Circuit Court Cases were consolidated by the Knox County Circuit Court for discovery purposes with the lead case as No. 2-65-14. Due to conflicts of interest, Moncier subsequently withdrew from representation of James Wilkerson and J. Mitchell Wilkerson (relatives of Mrs. Brakebill) in two cases and was replaced by attorney James Stovall.

         On August 31, 2015, new counsel for the Wilkersons filed a "First Amended Complaint" in case 2-65-14, in which a cause of action under federal law was alleged. The following month, Jack F. Brakebill and Donna Brakebill (individually and as trustee), as defendants in 2-65-14, removed the case to federal court. The notice of removal was signed and filed by Montpelier as counsel for Jack and Donna Brakebill. The notice of removal stated:

[S]ince the other cases do not involve questions of Federal law, the Removing Defendants suggest that the court sever and remand Cases 2-73-14, 1-90-14, and 1-170-14 to the Circuit Court for Knox County, Tennessee, pursuant to 28 U.S.C. 1441(c)(2).

         On September 30, 2015, Moncier served a Rule 11 motion on plaintiffs Montpelier and Della-Rodolfa via electronic mail ("Rule 11 motion") on behalf of defendant Beth McCarter and W. Lynn Brakebill. The Rule 11 motion was served within 24 hours of Moncier's receipt by electronic mail of the Notice of Removal to U.S. District Court that was filed in the state court. According to Attorneys, Moncier did not obtain the approval of Beth McCarter[3] to serve the Rule 11 motion.

         Fifteen days earlier, on September 15, 2015, Melissa Mancini had been appointed the permanent conservator for W. Lynn Brakebill in a Chancery Court case. According to Attorneys, prior to Mancini receiving Letters of Conservatorship, Moncier filed a "Motion to Join As Party Relator Conservator for W. Lynn Brakebill" in one of the Circuit Court cases, and Mancini explicitly moved to intervene in that case on September 25, 2015. Attorneys assert that when the Rule 11 Motion was served on September 30, 2015, Mancini was not W. Lynn Brakebill's qualified conservator and did not have Letters of Conservatorship.

         On October 8, 2015, attorney Houston Havasy, Moncier's associate, filed a motion to remand in federal court on behalf of McCarter. In it, Havasy stated that, "The removing defendants' representation that the cases were consolidated for discovery and motions is correct." Attorneys note that despite the fact he knew the truth as stated by his associate acting as his alter ego, Moncier has taken no action to correct his false statement in the Rule 11 Motion.

         Rule 11

Rule 11.03(1)(a) of the Tennessee Rules of Civil Procedure states:
(1) How Initiated.
(a) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision 11.02. It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(Emphasis added.).

         Attorneys contend that Moncier litigates cases by (a) serving overly broad oppressive discovery requests and subpoenas, (b) routinely lying in written pleadings and in oral statements to courts, (c) creating bases to disqualify his opposing counsel, including suing them personally, and (d) serving his adversaries with voluminous ad terrorem sanctions motions such as contempt of court, discovery sanctions, and Rule 11 motions. They assert that this custom and practice of Moncier, particularly using Rule 11 for the improper purpose of avoiding the American Rule on attorney fees, coupled with his refusal to file the Rule 11 motions until he first determines how the underlying "offending" pleading is decided, is an intentional abuse of process.[4] By waiting until he determines if his Rule 11 motions even have merit, Moncier never faces any risk of having to pay attorney fees because he never triggers the reverse loser pays attorney fee provision in Rule 11.03(1)(a) for frivolous motions. That open-ended threat of obtaining money from his adversaries and their attorneys unless they withdraw facts and claims remains throughout his lawsuits. Attorneys contend that their complaint sufficiently alleges that Moncier has primarily sought to increase the burden and expense of litigation to Attorneys and used process for purposes other than would be proper "in the regular prosecution of the charge."

         Attorneys further aver that Moncier's service of multiple Rule 11 motions on behalf of himself personally in the Contempt Case, a case in which he is not a party, was an improper act designed for the improper purpose of enriching himself. They assert that the serving of sanctions motions on behalf of himself as a non-party demonstrates that the motions were not designed to be a standard case of advocacy by an interlocutor acting as an advocate, but, rather, a bid by Moncier to obtain money for himself personally if Attorneys did not submit to his threats and give his client a material benefit of a waived defense to the charges. Attorneys note that Moncier has openly admitted that his actions are for the purpose of "fee shifting, " as he admitted in writing in the Contempt Case on February 22, 2013, that his purpose in serving Rule 11 motions is "fee shifting where pleadings do not comply with a provision of the rule."

         According to Attorneys, Moncier has served an excessive number of sanctions motions, including one on their co-counsel who was not even counsel on the particular case and did not sign the pleading on which Moncier served a Rule 11 motion. He has since served numerous other contempt, Rule 11 motions, and discovery sanctions motions. Attorneys note that Moncier further engages in a "cut and paste" Rule 11 motion practice. For example, the same multiple grammatical errors are made throughout multiple Rule 11 motions he served in the Contempt Case; each of three Rule 11 motions imbedded in motion responses that he served on October 11, 2013, contain an identical string of nine grammatical errors copied verbatim between them. Attorneys assert that these errors support their contention that Moncier's Rule 11 motions are designed to threaten rather than serve as carefully considered motions designed to seek legitimate relief.

         Attorneys also contend that the Rule 11 motion was served in the state cases that had already been removed to federal court and after Moncier had received actual notice of the removal. The state Rule 11 motion was served with respect to a notice that was filed in state court. Only the actual removal could have been for an improper purpose, for which, Attorneys argue, Moncier's only remedy would be to file a Rule 11 motion under the Federal Rules of Civil Procedure. Moncier's Rule 11 motion states: "Dale J. Montpelier is responsible for Rule 11.03(1)(a) sanctions as . . . having filed the Notice of Removal . . . in United States District Court." Attorneys contend that this statement is an admission that the Rule 11 motion was actually served for an alleged violation of the federal version of Rule 11. Moncier did not, in fact, serve the Rule 11 motion alleging a violation of the federal version of Rule 11 in federal court, the proper forum, because he remains disbarred in that court and cannot practice law there. Moncier's Rule 11 motion further notes: "The filing of the Notice of Removal was for a purpose to harass, delay and to create ...

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