DALE J. MONTPELIER, ET AL.
HERBERT S. MONCIER, ET AL.
Session August 10, 2016
from the Circuit Court for Knox County No. 3-554-15 Deborah
C. Stevens, Judge
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.
R. App. P.3 Appeal as of Right; Judgment of the Circuit Court
J. Montpelier and Joseph F. Della-Rodolfa, Knoxville,
Tennessee, appellants, pro se.
Herbert S. Moncier, Knoxville, Tennessee, appellee, pro se.
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.
W. MCCLARTY, JUDGE
arises from a contentious dispute over the ownership of a
health care facility, Brakebill Nursing Home, Inc. After
their divorce in 1992, W. Lynn Brakebilland 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.
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.
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.
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.
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 to serve the Rule
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.
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
Rule 11.03(1)(a) of the Tennessee Rules of Civil Procedure
(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
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. 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."
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
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.
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 ...