DOWNS v SMYK
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No. 84-02 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 ROBERT F. DOWNS, Plaintiff and Respondent, BERNARD SMYK, a/k/a BERNARD L. SPYK, and LOIS A. SMYK, Defendants and Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Roy Rodeghiero, Judge presiding. COUNSEL OF RECORD: For Appellants: Jackson Law Firm, Helena, Montana For Respondent : Calton and Harnman, Billings, Montana Submitted on Briefs: Decided: Filed: JL, March 23, 1984 July 26, 1984 Mr. Justice Daniel J. Court. Shea delivered the Opinion of the . Smyk, appeals a n order of the Defendant, Bernard L. Yellowstone County District Court djsmissing his petition to disqualify Judge Charles Luedke for cause. We affirm and remand this cause to the jurisdiction of Judge Luedke. The sole issue is whether there is substantial evidence to support the findings and conclusions of the trial court that Judge Luedke is not biased or prejudiced against Smyk, t-herefore making it proper to dismiss Smyk's pet.ition for disqualification. Plaintiff, Robert Downs, sued Smyk for specific performance of an agreement between the parties concerning a parcel of real property. Pursuant to the agreement, Downs made the downpayment of $60,000 and was to "control any contractual negotiations until equal investment. [Smyk] has contributed1' an Downs later received an offer to buy the property at a price well above what he and Smyk had paid, but Smyk refused interpretation to sell. of The the dispute centers above-quoted on the contractual language--e.g., whether it gives Downs the right to sell. The case was assigned to Judge Luedke. One year later, Judge Luedke partially granted Downs' motion one-half for summary judgment, giving Downs interest in the real property accounting of all rents and profits. an undivided in question, and Smyk appealed. from that judgment and it was affirmed and remanded in Downs v. Smyk (1979), 185 Mont. 16, 604 P.2d 307. After remand and further discovery, Judge Luedke granted Downs ' second motion for summary judgment to allow Downs the right to sell the real property in question, and also ruled that Smyk had n.o right to a jury trial. Smyk appealed a.ga.in. While his second appeal was pending, Smyk action against Judge Luedke and Downs in filed an federal court, claiming he had been denied his constitutional right to a jury trial when Judge Luedke entered summary judgment against him. The defendants moved for dismissal or summary judgment based res on - judicata. Smyk later moved for voluntary dismissal., but Downs contested it because he felt the suit had been filed in bad faith, and he demanded attorney fees. The federal district court granted the defendants' motion to dismiss and granted attorney fees to Downs as he was the only defendant to make an a.ppearance and request a-ttorney fees. Smyk's appeal to the Ninth Circuit was dismissed. On Smyk's second sta.te court appeal, this Court held that the trial court acted properly in denying the jury trialand in givinq Downs control over con-tract negotiations for one year, but reversed the summary judgment, holding that there existed a question of fact whether the contract gave Downs a right to sell the parcel. 1982), 651 P.2d 1238. Downs v. Smyk (Mont. The case was sent back to Judge Luedke's court for trial on that issue. Downs then petitioned this Court for a rehearing, and while the petition was pending, Smyk moved for substitution of judge in the District Court under section 3-1-802, MCA. Downs objected and petitioned this Court for a writ of supervisory control. This Court found Smyk's substitution to be improper, because a sitting judge cannot be removed while the Supreme rehearing. Court still has before it a petition for State ex rel. Downs v . District Court (Cause No. 82-482), Montana Supreme Court Order dated December 28, 1982. Smyk subsequently moved by affidavit to disqu.a.lify Judge Luedke for cause pursuant to section 3-1-802, MCA. The disqual-ification hearing was held on August 2, 1983, before Judge Roy C. Rodeghiero. and conclusions prejudiced for Judge Rodeghiero entered findings Judge that purposes of Luedke section was not biased 3-1-802, or MCA, and dismissed Smyk's petition. Smyk presents three factual bases for his contention that Judge Luedke is biased and prejudiced, none of which have any merit. First, that Judge Luedke is biased and prejudiced as evidenced by his rulings against Smyk. But, the jury trial ruling was legally correct, as was the first ruling for summary judgment. Even though the second summary judgment ruling was partially reversed, that in no way shows that Judge Luedke was biased against Smyk. Second, Smyk contends that because he campaigned overtly against Judge Luedke, the judge must be prejudiced against him. However, Judge Luedke testified that he did not even know Smyk had campaigned against him until Smyk said so in court. Smyk maintains that because he and Judge Third, Luedke were adversaries in the federal court action, and because Downs and Judge Luedke "were represented by the same attorney" in that action, that is clear bias and a conflict of interest. In the federal action, however, Judge Luedke was only a nominal defendant, and never made an appearance. At no time was he represented by Downs' attorney, he simply joined Downs in his motion for dismissal of that action. It should be noted tha.t attorney fees were awarded to Downs alone. Smyk also relies on two statutes to support his position, but the statutes do not apply to this case. He first argues that under section 3-1-802, a judge may not sit on a ca.se ". . . order, or decision appealed." when he rendered or made the jud-gment, However, section 3-1-802 applies to trial court judges substituting for appellate justices. It has no appl.ication here. Second, Smyk argues by analogy that Judge Luedke could not sit as a juror (under section 46-16-304 (2)(c), MCA, because he was an "adversary" in the federal case, and he therefore cannot sit as a judge. Judge Luedke's nominal. participation in that case has been d.iscussed and, further, disqualification of judges for cause is controlled by section 3-1-802, MCA, and not by other code sections by analogy. Section situations 3-1-802, where, a.s MCA, was not intended to reach here, a party litigant seeks to disqua.1.ify a trial judge on the basis of the party's own unilateral actions. Smyk's "overt" campaigning against Judge Luedke and Smyk's subsequent federal action fall far short of establishing bias or prejudice on the part of Judge Luedke. Smyk's other contentions are equally without merit. The order of the trial court dismissing Smyk's petition for disqualification is affirmed, and this cause is remanded for trial to the jurisdiction of Jud. : . - We Concur: f l Justices
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