text:
    MARTIN DUNN and Betty Dunn, Plaintiffs and Appellants, v. JOHN WAY and Iowa Mutual Insurance Company, Defendants and Respondents.
    No. 89-222.
    Submitted on Briefs Nov. 21, 1989
    Decided Feb. 5, 1990.
    786 P.2d 649.

      Greg J. Skakles, Johnson, Skakles & Kebe, Anaconda, for plaintiffs and appellants.
    Thomas M. Welsch, Poore, Roth & Robinson, Butte, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs Martin and Betty Dunn brought suit in the District Court, Third Judicial District, Deer Lodge County, alleging breach of contract and bad faith against defendants Iowa Mutual Insurance Company and its claims adjuster John Way for failure to promptly settle a claim for damage to a camping trailer and its contents. Upon motion, the District Court entered a stay of proceeding as to the bad faith claims pending resolution of the contract dispute.

Defendants subsequently made a motion for summary judgment, on the basis that they had invoked the appraisal process required under the contract, which plaintiffs failed to comply with prior to filing suit. The District Court granted the motion for summary judgment. The Dunns appeal the stay of proceedings and grant of summary judgment. We affirm the District Court.

The issues raised by the Dunns are:

1. Whether Iowa Mutual properly invoked the policy’s appraisal process.

2. Whether interest loss and storage fee claims are material to summary judgment.

3. Whether personal property valuations were at issue, thereby precluding summary judgment.

4. Whether the District Court erred by staying plaintiffs’ bad faith claims.

On November 8,1985, the insured, Martin Dunn, was involved in a single-vehicle accident, which damaged his pickup truck, camping trailer and its contents. The truck and trailer were insured by Iowa Mutual under an auto policy; the trailer’s contents were insured under a homeowners’ policy. Agreement was reached on the damage claim for the truck, but efforts to reach agreement as to the trailer and its contents were unsuccessful.

Dunn alerted Iowa Mutual Branch Claims Manager John Way of all claims after the accident, and sent an inventory list of the trailer’s contents. In a reply letter dated February 11, 1986, Way informed Dunn that it was necessary for Dunn to choose which items he wished to replace and which he wished to depreciate. Way also informed Dunn that his trailer had been appraised at somewhere between $5,000 to $6,000. Way also requested Dunn to forward the trailer’s title so it could be sold for salvage.

On March 7, 1986, Way responded to a letter from the Dunns, asking the Dunns to forward the names of the appraisers who had given quotes ranging from $8,000 to $9,000 for the trailer. Way again requested the title to the trailer so that salvage could occur and storage costs ended.

In correspondence from Way to the Dunns dated April 2, 1986, Way offered a $7,000 settlement for the trailer. No correspondence from Dunn is contained in the record, but it is apparent that that settlement offer was refused. An April 23 letter from Way to Dunn stated:

“Since we seem to be at a stalemate on the settlement of this matter since you do not agree with our evaluation, we feel that our only alternative is to go the appraisal route under the conditions of the policy.
“If you will let us know who you want to represent you [we] will have our appraiser get in contact with him.”

Way again wrote Dunn on June 11, 1986, seeking a reply, and reiterating that an appraisal of the trailer’s value was in order. Way also reminded Dunn that storage fees for the trailer continued to accrue.

The Dunns subsequently retained counsel, and on July 16, 1986, their attorney sent a letter to Way, contending that Iowa Mutual’s position was “totally unreasonable and you have continued to procrastinate and have refused to attempt to negotiate a fair and equitable offer.” In addition, the Dunns’ counsel stated that Way’s representation as to replacement costs or depreciation of the personal property was “totally repugnant to the terms and conditions of [the] policy as well as § 33-23-202, MCA.” Further, the Dunns’ counsel maintained that Iowa Mutual’s insistence that “the matter be resolved pursuant to the arbitration conditions of the policy” was in violation of § 27-5-111, MCA, et seq. which specifically excepts insurance contracts from mandatory arbitration procedures. Demand was made of Iowa Mutual for the value of the trailer, personal effects, storage fees, loss of use and interest in the amount of $13,997.46.

In reply, Way stated that the replacement cost option referred only to the lost personal property; that § 33-23-202, MCA, speaks to reimbursement of loss of a motor vehicle. Further, Way pointed out that Iowa Mutual sought an appraisal, not arbitration, to settle the matter. Way concluded by offering the Dunns $7,500 for the trailer, $2,500 for the personal property, and again stated the company was not obligated to pay all of the storage fees for the trailer.

The Dunns did not reply to the last letter, but initiated suit on October 15, 1986, alleging violation of the covenant of good faith and fair dealing and unfair claim settlement practices. Defendants filed a Motion for Stay of Proceedings and for Protective Order on January 20, 1987, in order to suspend plaintiffs’ bad faith claim and discovery related to it until the underlying breach of contract claim was resolved. A hearing was conducted on March 11, 1987, and the motion was subsequently granted.

The Dunns filed a motion for reconsideration on September 23, 1987. Iowa Mutual filed its brief in opposition on October 12, 1988 and a motion for summary judgment on October 20,1988. Iowa Mutual based the motion for summary judgment on the fact that the Dunns had “failed and refused to submit to the appraisal procedure under their insurance policy, which appraisal procedure is binding and enforceable as a matter of law.”

A hearing on the motion for reconsideration and the motion for summary judgment was held on March 8, 1989. The District Court issued its opinion and order on April 12, 1989, finding that: 1) Iowa Mutual’s motion for summary judgment should be granted; 2) Iowa Mutual need not amend its answer to affirmatively plead the defense of appraisal, as the appraisal requirements were mandatory under the contract and were already before the court; and 3) plaintiffs’ motion to reconsider was denied. This appeal resulted.

Plaintiffs’ first issue is based on the premise that Iowa Mutual did not invoke the appraisal procedure contained in the policy of insurance. This contention is plainly incorrect. Correspondence within the record clearly shows that Branch Claims Manager John Way, in a letter dated April 23, 1986, specifically notified Martin Dunn that the appraisal procedure was being invoked. Way again notified the Dunns in correspondence dated June 11, 1986. In it, Way inquired of the Dunns why neither he nor his designated appraiser had yet to contact the company. On June 29, 1986, Way once again notified the Dunns through his attorney that appraisal, and not arbitration, as the Dunns’ counsel had termed it in correspondence, had been sought.

The appraisal provision in the policy issued to the Dunns reads in part:

“If we and you do not agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will select a competent appraiser. The two appraisers will select an umpire. The appraisers will state separately the actual cash value and the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.”

Iowa Mutual clearly and specifically asked for an appraisal. The Dunns did not comply. A policy provision regarding legal action against the company reads in part:

“No legal action may be brought against us until there has been full compliance with all terms of this policy.”

The case at bar is on all fours with Garretson v. Mountain West Farm Bureau Mutual Insurance Co. (Mont. 1988), [234 Mont. 103,] 761 P.2d 1288. The policy provisions in Garretson are virtually identical to those contained in the Dunns’ policy. In Garretson, this Court determined that summary judgment was proper where an appraisal had been invoked but the insured did not comply before filing a complaint.

The Dunns maintain that Iowa Mutual failed to raise appraisal as an affirmative defense in their answer, and are therefore precluded from raising it later as a basis for summary judgment. Here, the appraisal provision was contained within the contract which is central to the dispute. An affirmative defense, under Rule 8(c), M.R.Civ.P., concerns the pleading of matters not within the claimant’s prima facie case. Sterret v. Milk River Production Credit Association (Mont. 1988), [234 Mont. 459,] 764 P.2d 467. We agree with Iowa’s contention that lack of appraisal constitutes a negative defense here, and, as such, was raised by Iowa’s general denial in accordance with Rule 8(b), M.R.Civ.P.

Plaintiffs’ second issue concerns whether a storage fee claim and an “interest loss” claim are material to the summary judgment.

The Dunns contend that Iowa is responsible, under the terms of the policy, for storage fees. Iowa denies this. A reading of the policy discloses no provision which mandates either party to pay storage fees. However, the Dunns did not seek payment of storage fees in their complaint. The District Court correctly disregarded this issue.

The Dunns also contend that they made a valid claim for interest, which is not subject to appraisal, and would thereby preclude summary judgment. However, the very nature of the Dunns’ complaint precludes a right to interest. Section 27-1-211, MCA, allows recovery of interest if damages are certain or capable of being made certain. Had the Dunns properly followed the appraisal procedure, their damages would likely have been made certain. The trailer’s value was not liquidated, and interest recovery is therefore not at issue. No interest may run until a fixed amount of damages has been arrived at by agreement, appraisal or judgment. Carriger v. Ballenger (Mont. 1981), [_Mont__,] 628 P.2d 1106.

Plaintiffs’ third issue is whether personal property valuations are in dispute, thereby precluding summary judgment.

The Dunns complaint asks for $2,800 to compensate for personal property lost in the accident. There is no question as to coverage. Iowa made an offer of $2,500 to the Dunns. While there is a difference of opinion as to worth, the Dunns have again failed to follow the procedures of the insurance contract. Agent Way requested the Dunns make an election in February, 1986, as to whether they wished to replace the destroyed items or seek reimbursement on the basis of depreciated cost. It is uncontroverted that the Dunns did not provide replacement receipts as requested or make an election. Because the Dunns did not comply with the policy procedures, their claim of a dispute as to the value of personal property has no more merit than that involving the trailer. The District Court correctly determined that the personal property valuations were not material to a breach of contract claim.

Plaintiffs’ final issue is whether the District Court erred in staying their bad faith claim.

The District Court originally entered an order staying proceedings and protecting defendants from discovery in matters directed to the Dunns’ bad faith claim until resolution of the claim for breach of contract. The court declined to modify the order upon subsequent motion for reconsideration. We agree with the court’s logic.

The District Court stated:

“The court declines to modify the Order Staying Proceeding and Protecting the Defendants from further Discovery previously entered .... The likelihood of prejudice to Defendants by proceeding with the bad faith claim before the appraisal process is complete is probable. The conclusion that the appraisal procedure must be followed and the resolution of the value issue may well affect the resolution of the bad faith issues.”

The District Court was acting within the bounds of discretion authorized by Rule 42(b), M.R.Civ.P.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    DENNIS MURNION and Kimberly Murnion, Plaintiffs and Appellants, v. HEBERLE FORD COMPANY, a Montana business organization, Defendant and Respondent.
    No. 89-299.
    Submitted on Briefs Nov. 21, 1989.
    Decided Feb. 5, 1990.
    786 P.2d 653.
    Roy W. Johnson, Stephens Law Firm, Billings, for plaintiffs and appellants.
    Guy Rogers, Anderson, Brown Law Firm, Billings, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Dennis and Kimberly Murnion, plaintiffs, filed a motion under Rule 60(b), M.R.Civ.P., in the District Court of the Thirteenth Judicial District, Yellowstone County. The plaintiffs’ requested that the court relieve them of the order granting defendant Heberle Ford’s motion for summary judgment on the basis of newly discovered evidence. The District Court denied plaintiffs’ motion and the plaintiffs appealed. We affirm.

On February 5, 1983, Dennis Murnion was riding as a passenger in a 1962 truck owned and driven by his brother, Mark Murnion. Dennis was injured when the truck collided with a Burlington Northern train at an interchange under construction on a state highway, approximately fifteen miles north of Colstrip, Montana. Mark had purchased the truck on December 4,1982 from Heberle Ford, located in Forsyth, Montana.

Dennis Murnion and his wife, Kimberly Murnion, subsequently filed suit on February 4, 1986 against several defendants, including Heberle Ford. The Murnions alleged that Heberle Ford was negligent, careless and reckless in failing to inspect, test and service the brake system of the 1962 truck. On May 15,1987, Heberle Ford filed a motion for summary judgment against Murnions’ claims. After briefing by the parties, the motion was argued before the District Court. The court subsequently granted Heberle Ford’s motion for summary judgment. The summary judgment order was entered on July 13, 1987 and the notice of entry of judgment was served July 14, 1987.

On August 26, 1988, nearly fourteen months after the District Court granted summary judgment in favor of Heberle Ford, the Murnions filed a motion in limine or, alternatively, a motion to reconsider the prior summary judgment order. The motion in limine requested the court to preclude the defendants from introducing evidence or offering testimony of any kind showing or attempting to show that one of the causal factors in the collision was attributable to a product’s failure in connection with the truck’s brake system. The Murnions alternative motion to reconsider the prior summary judgment order does not exist as a post-judgment motion under the Montana Rules of Civil Procedure. Murnions’ motion, however, was based upon alleged newly discovered evidence. We will therefore equate Murnions’ motion with a motion pursuant to Rule 60(b), M.R.Civ.P., so as to allow it to be properly before this Court.

The Murnions offered the affidavit of their expert witness, F. Den-man Lee, dated and filed October 17, 1988, as the newly discovered evidence. The District Court denied the Murnions’ motion, stating that the Murnions had not exercised due diligence in presenting the court with their alleged newly discovered evidence. The notice of entry of judgment for this order was filed April 12, 1989. The Murnions then filed their notice of appeal from this order on April 17, 1989.

The sole issue raised on appeal is whether the District Court erred in denying Murnions’ motion under Rule 60(b), M.R.Civ.P., to relieve them of the order granting Heberle Ford’s motion for summary judgment on the basis of newly discovered evidence.

The law is well settled regarding a party seeking relief from a judgment because of newly discovered evidence. Before a court will grant a new trial or relief from a judgment, the moving party must demonstrate reasonable due diligence in procuring the newly discovered evidence within the specified statutory time periods. The pertinent part of Rule 60(b), M.R.Civ.P., for this case provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has been personally served . . . not more than 60 days after the judgment, order or proceeding was entered or taken . . .” (Emphasis added.)

The notice of entry of judgment granting Heberle Ford’s motion for summary judgment was served to the Murnions on July 14, 1987. The Murnions therefore had sixty days to bring forth their alleged newly discovered evidence and to demonstrate that they exercised reasonable due diligence in procuring this newly discovered evidence. The Murnions, however, did not file their Rule 60(b) motion until August 26, 1988 — nearly twelve months after the statute of limitations expired for filing such a motion. In light of the above, the District Court did not err in denying the Murnions’ motion under Rule 60(b), M.R.Civ.P., to relieve them of the order granting Heberle Ford’s motion for summary judgment because of the Murnions’ alleged newly discovered evidence.

Affirmed.

JUSTICES HARRISON, HUNT, SHEEHY and McDONOUGH concur.


text:
    DONALD E. PARE and Lois M. Pare, Plaintiffs and Appellants, v. M.C. MORRISON and Dorothy Morrison, Defendants and Respondents.
    No. 89-392.
    Submitted on Briefs Dec. 14, 1989.
    Decided Feb. 5, 1990.
    786 P.2d 655.

      Charles A. Graveley, Helena, for plaintiffs and appellants.
    Richard L. Parish, Harlen, Thompson & Parish, Helena, for defendants and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

Donald E. and Lois M. Pare, plaintiffs, appeal the decision of the District Court of the First Judicial District, Lewis and Clark County, finding that M.C. and Dorothy Morrison, defendants, did not fraudulently induce the plaintiffs to purchase real property from them. We affirm.

Donald E. and Lois M. Pare owned and operated an auto wrecking service in Helena, Montana. The Pares operated this business out of their home on North Harris Street. During the end of the summer in 1985, the Pares wanted to expand their business and began investigating the purchase of property located on Kerr Drive. This property, located in the Hiltabrand subdivision, Lewis and Clark County, was subject to restrictive covenants that were first recorded on February 14, 1958. The restrictive covenant that applies to this case states in pertinent part that

“1. [N]o lot or building plot shall be used except for strictly residential purposes, and no business, trade or manufacture of any sort or nature shall be conducted thereon . . .
“These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from the date these covenants are recorded, after which time said covenants automatically shall be extended for successive periods of ten (10) years unless changed in whole or part as hereafter stated.”

These covenants were recorded in Book 63, pages 180-82 in the Office of the Clerk and Recorder, Lewis and Clark County.

The property on Kerr Drive was owned by M.C. and Dorothy Morrison at the time the Pares investigated purchasing the property. The Pares inspected the property and talked with the Morrisons regarding the sale of the property. The Pares returned later with family members and inspected the property for a second and third time. During these visits, the parties negotiated the price and terms of a potential sale.

The parties agreed to a price for the property and the Pares began to move their home and business onto the property prior to the closing date. As they were moving onto the property, the Pares discovered a problem with the plumbing. The Pares called an appraiser to look at the property and the parties agreed to reduce the purchase price by $6,000 due to the defective plumbing. The final purchase price agreed upon between the parties was $109,500. Prior to signing the final papers, an officer of Helena Abstract and Title Company showed the Pares a title commitment that referenced the restrictive covenants by book and page. The officer also showed them a document that set out the covenants in substantial form, stating specifically that no business shall be operated on the premises and that the restrictions shall last for twenty-five years and shall automatically renew in ten years, unless otherwise modified. The Pares nonetheless signed the final papers on November 29, 1985, transferring the deed and closing the transaction.

Shortly after the closing, Bruce Lanthorn noted that the Pares were attempting to operate an auto wrecking business on the premises and informed them that the restrictive covenants that bound the property would prohibit such a business. The Pares received a follow-up letter from an attorney representing various neighbors and informing the Pares to cease operation of their business. After consulting with their own attorney, the Pares realized that the restrictive covenants on the property would prevent them from operating their business as intended. They moved out of the Kerr Drive property and back to their former residence and place of business on North Harris Street. The Pares attempted to restore themselves to status quo through negotiations with the Morrisons, but those negotiations failed. The Pares then attempted to sell the Kerr Drive property and were unsuccessful until January 21, 1987, when they sold it for $75,000.

On November 18, 1987, the Pares filed a complaint in the District Court of the First Judicial District, Lewis and Clark County, alleging that the Morrisons fraudulently induced them into buying the property on Kerr Drive. The matter was tried before the District Court, sitting without a jury, on May 15 and 16, 1989. The court returned a judgment in favor of the Morrisons. The Pares then filed a motion pursuant to Rule 59(g), M.R.Civ.P., to alter or amend the judgment. The District Court denied the motion and the Pares appealed.

The sole issue raised on appeal is whether the District Court erred in determining that the Morrisons did not fraudulently induce the Pares into entering a contract for the sale and purchase of the Kerr Drive property.

The Pares primary allegation is that the Morrisons committed fraud by falsely representing to them that the Kerr Drive property was not subject to any restrictions as to a business and therefore induced them into signing a contract for the sale and purchase of the property. In particular, the Pares argue that the Morrisons knew of the restrictive covenants, but failed to reveal the covenants so as to gain an unfair advantage over them.

The Pares in this case have the burden of proof of establishing by a preponderance of evidence the nine elements that constitute fraud. These nine elements are:

1. a representation;

2. the falsity of the representation;

3. the materiality of the representation;

4. the speaker’s knowledge of the falsity of the representation or the speaker’s ignorance of its truth;

5. the speaker’s intent that the false representation should be relied upon;

6. the hearer’s ignorance of the falsity of the representation;

7. the hearer’s reliance on the false representation;

8. the hearer’s right to rely on the false representation; and

9. the consequent and proximate injury caused by the reliance on the false representation.

Wortman v. Griff (1982), 200 Mont. 528, 531-32, 651 P.2d 998, 1000; Van Ettinger v. Pappin (1978), 180 Mont. 1, 10, 588 P.2d 988, 994. The District Court found that the Pares failed to meet their burden of proof. When a district court functions as a trier of fact, this Court will not substitute its judgment for that of a district court. On review, this Court will uphold a district court’s decision when substantial credible evidence supports its findings of fact. Lorenz v. Estate of Schilling (Mont. 1989), [236 Mont. 82,] 768 P.2d 869, 870, 46 St.Rep. 198, 200; Meridian Minerals Co. v. Nicor Minerals, Inc. (Mont. 1987), [228 Mont. 274,] 742 P.2d 456, 461, 44 St.Rep. 1516, 1523-24.

In concluding that the Pares did not meet their burden of proof, the District Court noted the conflicting stories presented by the Pares and the Morrisons, and concluded that no reason existed why it should accept the Pares’ version of events over the Morrisons’ or vice versa. The District Court also concluded that the Pares did not successfully satisfy all of the nine elements that constitute fraud. In particular, the court noted that in attempting to establish fraudulent conduct by the Morrisons, the Pares primarily relied upon a statement by the Morrisons in which they stated that they operated a business on the property for four years and had no problems. The court noted, however, that this is a true statement and therefore cannot be the basis for an action in fraud. The court also noted that prior to signing the final papers, the Pares were presented with documents specifying the existence of the restrictive covenants and stating their substance in unambiguous terms. The District Court therefore concluded that the Pares did not meet their burden of establishing fraudulent intent by the Morrisons.

In light of the above, we hold that substantial credible evidence supports the District Court’s findings and conclusions that the Morrisons did not fraudulently induce the Pares into entering a contract for the sale and purchase of the Kerr Drive property.

The Pares also mention in their briefs that the Morrisons “mislead” them by not informing them that the property was subject to flooding and that the wiring and plumbing did not meet code. However, the Pares did not argue to this Court that these were the bases for the fraud action. This Court therefore does not need to address them on appeal.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and WEBER concur.


author: JUSTICE HUNT

text:
    BRUCE A. YOUNG and Sheri D. Young, husband & wife; Leo B. Evans and Lona Lee Evans, husband & wife, Ruth E. Palmer, Plaintiffs, v. FLATHEAD COUNTY, a body corporate; Flathead County Board of Commissioners, a body politic; Nakul S. Verma, Flathead County Zoning Administrator, Defendants and Respondents, and Albert Seeley, West Central Resources, Inc., R.C. Lee & Associates, Inc., Tri-Fortune Investments, Inc., Early Bird Investments, Ltd., and Early Bird Properties, Inc., Cross Claimants and Appellants, and Henry Oldenburg, Crossclaim Defendant and Intervenor.
    No. 89-175.
    Submitted on Briefs Sept. 27, 1989.
    Decided Feb. 6, 1990.
    786 P.2d 658.

      Lawrence F. Daly, Garlington, Lohn & Robinson, Missoula, for cross claimants and appellants.

      Ted O. Lympus, Flathead County Atty., Jonathan B. Smith, Deputy, Kalispell, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is the second appeal of a case involving a condominium development on Flathead Lake known as the Caroline Point Estates & Yacht Club. The first appeal is reported as Young v. Flathead County (Mont. 1988), 232 Mont. 274, 757 P.2d 772, 45 St.Rep. 1047 (Young I). In Young I, defendant, Flathead County, appealed from a judgment of the Eleventh Judicial District Court, Flathead County, in favor of defendants-intervenors, Albert Seeley, West Central Resources, Inc., R.C. Lee & Associates, Inc., Tri-Fortune Investments, Inc., Early Bird Investments, Ltd. and Early Bird Properties, Inc. (Developers). We reversed and remanded for further proceedings. On remand, the District Court denied the Developers’ motion for an evidentiary hearing and entered judgment in favor of the County. The Developers appeal. We affirm.

The following issues are raised on appeal:

1. Whether, on remand, the District Court erred in refusing to conduct an evidentiary hearing on the issue of proximate cause.

2. Whether, on remand, the District Court erred in refusing to conduct an evidentiary hearing on the issue of justifiable reliance.

3. Whether, on remand, the District Court erred in denying the Developers’ motion to reinstate the original judge following his withdrawal from the case.

In Young I, landowners adjacent to the Caroline Point condominiums filed a complaint against the County, challenging the procedures followed in developing the project. The Developers intervened in the suit and filed a cross-claim against the County, alleging that they justifiably relied upon representations made by the County that the regulations applying to subdivision development did not apply to the Caroline Point project. The Developers further claimed that, after they acted in reliance upon the representations made by the County, the County arbitrarily and capriciously prohibited further development, which resulted in financial damages.

The District Court granted summary judgment to the Developers, holding that they justifiably relied upon the County’s representations and that they were entitled to damages proximately caused by their reliance. Following a trial, the District Court awarded damages in excess of $2,000,000. The County appealed.

On appeal, we overturned the District Court’s money judgment in favor of the Developers because 1) the District Court erroneously excluded relevant evidence offered by the County on the issue of proximate cause; 2) the Developers failed to prove that the County’s representations were the sole proximate cause of their damages; and 3) the District Court erroneously concluded that the Developers justifiably relied on representations made by the County that the condominium project was not subject to subdivision regulations. We reversed and remanded “for further proceedings consistent with this opinion.” Young I, 757 P.2d at 779, 45 St.Rep. at 1055.

After remittitur, the Developers moved the District Court to schedule a hearing for the purpose of receiving additional evidence on the issues of proximate cause and justifiable reliance. The County, in turn, moved the court to substitute the presiding judge under § 3-l-804(g), MCA, or, in the alternative, to enter judgment in favor of the County on the Developers’ claim for damages.

By order dated July 13, 1988, Judge Jack L. Green withdrew from jurisdiction and, on August 8, 1988, Judge Michael H. Keedy assumed jurisdiction. The Developers then filed motions for reinstatement of Judge Green or, in the alternative, for substitution of Judge Keedy. Judge Keedy denied the motion for reinstatement but granted the motion for substitution, withdrawing from the case on December 13, 1988. Judge Thomas A. Olson assumed jurisdiction the following day.

On February 13, 1989, a hearing was held on the Developers’ earlier motion for an evidentiary hearing and the County’s motion for entry of judgment in its favor. On March 2, 1989, the District Court entered judgment for the County, holding that, based upon our Opinion in Young I, the County did not proximately cause any damages to the Developers and that the Developers did not justifiably rely on the County’s opinion regarding whether the condominium project was a subdivision subject to review. From this judgment, the Developers appeal.

The Developers first argue that our decision in Young I required the District Court on remand to conduct an evidentiary hearing to allow the admission of the County’s erroneously excluded evidence as well as any rebuttal thereto by the Developers and then, after the hearing, to make a new determination of whether the County proximately caused damages to the Developers. A careful reading of Young I, however, demonstrates that our direction to “remand for further proceedings consistent with this Opinion” did not require the District Court to conduct additional evidentiary hearings as argued by the Developers.

In Young I, we gave two separate and independent grounds for holding that the District Court erred in finding that the County had proximately caused the Developers’ damages. First, we stated that the Court erroneously excluded evidence offered by the County that was pertinent to the issue of proximate cause. Had this been the only reason for our reversal on the proximate cause issue, a new trial would indeed have been warranted.

We did not, however, rest our determination of the proximate cause issue on this one reason alone. We went on to state:

Further, since other factors — the economy, failure to secure additional financing, and especially the inability to secure approval of the sewage system — had an impact on the resulting damage, Developers cannot claim the County’s representations alone ‘proximately caused’ the damage. Where more than one possible cause of damage appears, the plaintiff must eliminate causes other than those for which the defendant is responsible. [Citation omitted.] Developers’ failure to separate the causes and damage bars them from arguing proximate cause is satisfied in this case. Numerous interruptions in the chain of events occurred that could be considered the injury causing damage.” (Emphasis added.)

Young I, 757 P.2d at 777-78, 45 St.Rep. at 1053-54.

The Developers failed to prove their case on the issue of proximate cause by failing to eliminate those causes that, through no fault of the County, may have contributed to their damages. Unlike the County, which may have been prejudiced by the court’s erroneous exclusion of evidence, the Developers had a full and fair opportunity to introduce all evidence on its behalf relating to the issue of proximate cause. The Developers’ failure to separate the causes and damages must be attributed to an inability to prove that the County was the sole cause of their damages. Remand for a further hearing to allow the Developers to attempt to prove what they could not in the first instance was therefore unnecessary. First Bank (N.A.)-Billings v. Clark (Mont. 1989), [236 Mont. 195,] 771 P.2d 84, 92, 46 St.Rep. 291, 300.

The Developers next argue that our disposition of Young I required the District Court on remand to conduct an evidentiary hearing on the issue of justifiable reliance. Once again, we do not agree that Young I so directed the District Court.

In the opinion, we stated:

“The County appropriately points out that Developers were relying on an interpretation of law, an opinion, that the condominiums would not be subject to subdivision review. The County Attorney’s office maintained no confidential or professional relationship with Developers in this case. Therefore, the County’s opinion — in light of the State’s determination that subdivision review would be required set out in the letter of December 18, 1980; the fact that Developers were represented by their own counsel; the existence of the above-mentioned statutes and the actual opposition to the lack of subdivision review that was expressed by opponents of the project who ultimately filed this suit — was unreasonably relied upon by Developers.”

Young I, 757 P.2d at 779, 45 St.Rep. at 1055.

Thus, we held as a matter of law that the Developers did not justifiably rely on the representations made by the County. Having determined this question as a matter of law, a further evidentiary hearing on the matter would have been futile.

Finally, the Developers argue that the District Court erred in denying their motion to reinstate the original judge following his withdrawal from the case. We do not agree.

Following entry of remittitur, the County moved the District Court to substitute Judge Green, the original judge, under § 3-l-804(g), MCA, or in the alternative, to enter judgment in favor of the County. At that time, the substitution statute read as follows:

When a new trial is ordered in any case, whether by order of the district court or the supreme court, each adverse party shall be entitled to one additional motion for substitution of judge in the manner provided herein. Such motion must be filed, with the required filing fee, within twenty (20) days after a new trial has been ordered by the district court or after the remittitur has been filed with the district court clerk. No right of further substitution shall arise in cases remanded by the supreme court which call for additional hearings, but not a new trial.” (Emphasis added.)

Section 3-l-804(g), MCA (1987).

Apparently, the original judge interpreted our disposition in Young 7 as a direction to conduct a new trial and, therefore, withdrew from the case. As we noted earlier in this Opinion, our disposition did not require further evidentiary hearings, nor did it require a new trial. Consequently, the original judge’s withdrawal from the case on remand was unnecessary.

Any error that may have been committed by the original judge’s withdrawal was cured by subsequent amendments to the substitution statute. By order dated September 13, 1988, the statute was amended as follows:

“When a new trial is ordered by the district court, each adverse party shall thereupon be entitled to one motion for substitution of judge in the manner provided herein. When on appeal the judgment or order appealed from is reversed or modified and the cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party shall thereupon be entitled to one motion for substitution of judge in the manner provided herein. Such motion must be filed, with the required filing fee in civil cases, within twenty (20) days after a new trial has been ordered by the district court or after the remittitur from the supreme court has been filed with the district court. No other right of further substitution shall arise in cases remanded by the supreme court. In criminal cases, no further right of substitution shall arise when the cause is remanded for resentencing”. (Emphasis added.)

Section 3-l-804(g), MCA.

The amended statute allows the parties to move for substitution of the presiding judge when this Court reverses and remands an order of summary judgment. As the appeal in Young I dealt in part with the reversal of a summary judgment order, the amended statute entitled the County to move for the withdrawal and substitution of the original judge. Although the amendments were made after the withdrawal of the original judge, the order amending the statute specifically provided that the effective date of the rules of substitution would continue to be September 1, 1987, thereby making the amendments retroactive to that date. As the amendments cured any error caused by the original judge’s withdrawal, the subsequent judge did not err when, in December, 1988, he denied the Developers’ motion for reinstatement of the original judge.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY, McDONOUGH, WEBER and BARZ concur.


author: JUSTICE SHEEHY

text:
    FRANK K. NILES, Plaintiff and Appellant, v. CARL WEISSMAN & SONS, INC., A Montana Corp., Defendant and Respondent.
    No. 89-333.
    Submitted on Briefs Dec. 1, 1989.
    Decided Feb. 6, 1990.
    786 P.2d 662.
    J. David Penwell, Bozeman, for plaintiff and appellant.
    Jack L. Lewis, Great Falls, for defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we determine that a final decision from an administrative agency that an employee is not entitled to unemployment compensation is not res judicata as to the employee’s separate action in District Court for wrongful discharge and breach of the covenant of good faith and fair dealing. In so holding, we distinguish Nasi v. State Department of Highways (Mont. 1988), [231 Mont. 395,] 753 P.2d 327.

Frank K. Niles appeals from a summary judgment in District Court, Eighteenth Judicial District, Gallatin County, dismissing Niles’ complaint against Carl Weissman & Sons, Inc. for alleged wrongful discharge and breach of the covenant of good faith and fair dealing. We reverse.

On May 11,1987, Niles, a truck driver employed by Weissman, was ordered to haul a two-axle flatbed trailer from Livingston to Bozeman.

Weissman’s employees had previously loaded a railroad locomotive motor or engine on the trailer, weighing approximately 38 tons. In the opinion of Niles, the flatbed truck was loaded far beyond its capacity, and in fact, the trailer had been damaged by Weissman when the load was placed on the trailer. Niles hauled the load as far as the truck stop on the west edge of Livingston and refused to drive the load any farther, believing that to do so would endanger not only his life, but the lives of others in hauling the trailer over the Bozeman Pass to Weissman’s yard in Bozeman.

Niles contended in District Court that his supervisor told him that he was to haul the load and specifically told him if he refused he would be terminated from his position. The supervisor denies in District Court that “he specifically told” Niles that if he refused to haul an unsafe load he would be fired. In any event, Niles refused to haul the load and returned to Bozeman in the tractor driven by another employee of Weissman.

It also appears that another employee of Weissman, Sam Dickenson, determined that the load was unsafe. The load was transferred to another larger trailer which was later transported to its original destination in Bozeman.

The District Court found as unrefuted that plaintiff filed a claim for unemployment benefits after ending his employment with defendant. A Department of Labor deputy denied Niles benefits on the grounds he had “voluntarily left” his employment and that the separation was not attributable to Weissman. Niles appealed the deputy’s decision to an appeals referee who affirmed the denial of the claim. Plaintiff next appealed to the Board of Labor Appeals, which reversed the decision of the Appeals Referee and held that plaintiff was entitled to unemployment benefits. Weissman appealed the BLA reversal to the District Court and upon stipulation of the parties, the District Court ordered the cause remanded to the BLA for further consideration. On remand, the BLA reversed its earlier decision and denied plaintiff’s claim for benefits. Niles then appealed to the District Court but failed to brief his petition, and the District Court affirmed the BLA’s decision to deny Niles’ claim.

On October 14, 1987, during the course of the administrative procedure, Niles filed his complaint in District Court alleging wrongful termination. This action moved along a track parallel to the administrative proceedings.

Subsequently, in the wrongful termination action, Weissman filed a motion for summary judgment. Weissman based its summary judgment motion upon the Department and District Court’s determination that Niles voluntarily quit his employment and upon the contention that this determination was res judicata as to Niles’ claim for wrongful termination. On April 11, 1989, the District Court granted Weissman’s motion for summary judgment holding that the BLA acted in a judicial capacity and provided plaintiff with a fully contested case hearing which was judicially reviewed, and therefore res judicata applied. It is from this order of summary judgment that Niles appeals.

The District Court fully realized the far-reaching effect of its summary judgment. It stated:

“This Court realizes this holding leaves plaintiff and other potential claimants on the horns of a dilemma: If they fully pursue their administrative remedy for unemployment benefits, they may forego the remedy in the courts; if they choose to go through the courts system, they may be barred by failure to exhaust their administrative remedies. The court is hesitant to relinquish the determination of what constitutes ‘wrongful termination’ at common law to an administrative agency when that determination does not require any ‘expert and specialized knowledge.’ See generally Nader v. Allegheny Airlines (1976), 426 U.S. 290, 48 L.Ed.2d 643, 96 S.Ct. 1978. However, this point awaits clarification by the Montana Supreme Court.”

The fulcrum on which the District Court relied in determining res judicata was that the administrative proceedings involved a fully contested case hearing which complied with the standards of procedural and substantive due process that attends judicial proceedings, where the parties have full opportunity to litigate the issues. The District Court pointed out that at each administrative level, Niles had counsel present, submitted evidence in his own behalf, was permitted cross examination and was allowed to argue the law of the case. In the administrative process, Niles lost at each stage of the administrative proceedings, except for the single decision of the BLA, which the BLA subsequently reversed.

There is indeed a dilemma here, as the District Court indicated, affecting not only Niles, but every employee in this State who may be similarly situated. There are two Montana cases which bear directly on the problem which facially are inconsistent, but which, on analysis, can be reconciled. They are Nasi v. State Department of Highways, above cited, a decision from this Court, and Fetherston v. ASARCO, Inc. (D. Mont. 1986), 635 F.Supp. 1443, a federal district court case.

First let us understand res judicata as it is applied in Montana. There are four criteria: (1) the parties must be the same; (2) the subject matter must be the same; (3) the issues must be the same; (4) the relationship among the parties, the subject matter and the issues must be the same. Brault v. Smith (1984), 209 Mont. 21, 26, 679 P.2d 236, 239; Fox v. 7L Bar Ranch Company (1982), 198 Mont. 201, 645 P.2d 929.

In Nasi, this Court had before it an appeal from a summary judgment granted in District Court on grounds of res judicata as to Nasi’s wrongful discharge action. Nasi claimed he was fired. The Highway Department claimed he voluntarily quit.

The facts in Nasi roughly parallel the facts in Niles’ case. Nasi filed a grievance with the Board of Personnel Appeals. The BPA preliminary hearing examiner decided that Nasi had quit or walked off the job. Nasi rejected the preliminary decision. Five days thereafter, Nasi filed a separate tort action in District Court alleging wrongful discharge and bad faith. The Highway Department filed motion to dismiss on several grounds, including res judicata. The District Court stayed further proceedings until the BPA made a final determination on the grievance. On October 11, 1984, the BPA formal hearing examiner held that Nasi had voluntarily terminated his employment. On February 5, 1985, the BPA adopted the examiner’s recommended order as the final order, in effect concluding that Nasi had not been aggrieved by the Department. On March 5, 1985, Nasi filed a petition for judicial review of the BPA order. On August 15, 1986, the District Court affirmed the BPA final order. Nasi did not appeal the judicial review.

In the meantime, in the tort action, the District Court lifted its stay. The Highway Department filed a motion for summary judgment which was granted by the District Court against Nasi on grounds that the matter was res judicata. The District Court relied on the BPA finding that Nasi had quit which the District Court determined to be dispositive in the District Court case.

The other side of the coin is found in Fetherston. Fetherston was a managerial employee of ASARCO, and thus not subject to the union contract. Against ASARCO’s rules, Fetherston drove his new wife through the plant area while off duty. Another ASARCO employee observed the violation and reported it to the plant management. Fetherston was suspended four days without pay. Later, following a Christmas party, Fetherston was in a bar in East Helena where he observed the employee who had reported him. Fetherston struck him in the face. Thirty-eight days later, plaintiff was terminated by ASARCO. He applied for unemployment benefits through the Montana Department of Labor. ASARCO opposed his application on the grounds that he had been fired for violating a known company rule. The Department of Labor determined that Fetherston was not entitled to benefits because of his violation of the rule.

After the Department of Labor had acted, Fetherston met with the ASARCO management about possible reinstatement. The management indicated that he would not be reinstated but that ASARCO would no longer oppose his application for unemployment benefits. Fetherston returned to the Department of Labor to redetermine its denial of his benefits. The Department reversed itself stating that Fetherston’s actions which resulted in his discharge did not occur on the employer’s property, did not directly affect the employer’s business and so Fetherston was not disqualified from receiving unemployment insurance. ASARCO did not appeal from the administrative determination, and it became final.

Fetherston brought action in the federal district court for his alleged wrongful termination from employment. At the pre-trial conference before the federal district court, Fetherston moved in limine, among other motions, for partial summary judgment on the grounds that ASARCO had failed to appeal the Department of Labor’s determination and so ASARCO was collaterally estopped from raising additional reasons for his discharge and from relitigating the issue of plaintiff’s misconduct.

The federal district court determined that collateral estoppel is applicable to foreclose relitigation of issues not only in a judicial proceedings, (citing Aetna Life and Casualty Insurance Company v. Johnson (1984), 207 Mont. 409, 673 P.2d 1277), but also issues previously determined at an agency level (citing Paramount Transport Systems v. Chauffeurs, etc. Local 150 (9th Cir. 1971), 436 F.2d 1064.) The federal district court determined that the factors invoking collateral estoppel are: (1) the administrative proceedings must comply with judicial standards of substantive and procedural due process; (2) administrative findings must concern issues material to the subsequent litigation; and (3) the agency decision must be supported by substantial evidence on the administrative record as a whole.

Thus in Fetherston, we have the situation where the employee, having successfully shown his right to unemployment benefits at the agency level, contended that the employer was collaterally barred from relitigating the same issues. The federal district court, however, determined that the issues were not the same. It said:

“. . . Here, defendant did not oppose plaintiffs application for re-determination, nor is there any evidence that a formal hearing was ever held. Generally, Montana unemployment compensation procedures are very informal, often handled by the mere completion of forms or over the telephone. The full panoply of issues which arises in a wrongful discharge suit is not within the realm of the Department of Labor’s consideration of eligibility for unemployment benefits. The statutory scheme for unemployment insurance contemplates a general rule that benefits will be awarded, with only a few specifically designated exceptions or disqualifications. Section 39-51-2301, et seq. MCA.
“The particular disqualification involved in Mr. Fetherston’s case was misconduct. The issue of ASARCO’s good faith, or lack thereof, in discharging plaintiff, was not involved. Had ASARCO foreseen that its failure to oppose plaintiff’s application for redetermination would somehow serve to foreclose its opportunity to defend the wrongful termination action, it surely would not have chosen a passive course of action in the administrative proceedings.
“The doctrine of collateral estoppel cannot apply to bar litigation where the agency’s finding is not a ‘necessary determination of an issue’ nor ‘essential to the judgment’ (citing a case). In this case, the administrative termination was merely to allow plaintiff to collect unemployment benefits from the State of Montana. No decision was rendered, nor evidence presented, regarding existence or breach of the implied covenant of good faith and fair dealing, and ASARCO was not defending any such charges on an attempt to avoid paying damages out of its own pocket.
“In view of the foregoing factors, the three elements of the Paramount Transport test are not satisfied and thus collateral estoppel principles cannot be invoked. First, the administrative proceedings involved in this case do not comply with the standards of procedural and substantive due process that attend a judicial proceeding, nor is this Court willing to impose such a requirement on a formal proceeding before a state agency deluged with unemployment requests. Second, the Department of Labor made no findings of fact pertaining to material issues before the Court, and no such findings were necessary for its ultimate determination of plaintiffs application. Based upon these factors, the Court is of the opinion that collateral estoppel is inapplicable.”

635 F.2d at 1446, 1447.

Now, let us look again at Nasi, and the holding of this Court that the agency determination barred Nasi’s claim for wrongful discharge. The compelling difference between Nasi and Fetherston is that in Nasi, a specific statute granted the Board of Personnel Appeals jurisdiction to determine Highway Department personnel grievances based upon work conditions, supervision, or the result of an administrative action. Section 2-18-1001, MCA. The BPA, by statute, had full jurisdiction to determine all the issues relating to the termination of Nasi.

In the case of Niles, however, the legal situation is the same as in Fetherston. The jurisdiction of the Department of Labor is confined to “claims filed for benefits,” sec. 39-51-2406, MCA. The employee Niles is in the same position as the employer ASARCO in Fetherston. The issue of Weissman’s good faith, or possible lack thereof, was not and could not be determined by the Department of Labor in disqualifying Niles for unemployment insurance benefits.

When it is considered, therefore, from the viewpoint of res judicata, or from collateral estoppel, Niles’ action for wrongful discharge and breach of the covenant of good faith and fair dealing is not barred because of the agency determination. The issues determined before the agency, and to be determined before the District Court are not the same.

We leave aside without discussion whether the administrative proceedings in this case complied with judicial standards of substantive and procedural due process. It appears from the record that there were telephonic hearings which may not have afforded Niles the full right of cross-examination. It is unnecessary for us to determine this issue, however, because we hold otherwise in this case that neither res judicata nor collateral estoppel applies since the legal issues decided by the agency are not the same as the legal issues facing the District Court in Niles’ case.

Under Rule 56, M.R.Civ.P., a summary judgment may not be granted unless there is no genuine issue of material fact remaining. Bills v. Hannah, Inc. (Mont. 1988), [230 Mont. 250,] 749 P.2d 1076. Because there are further issues of fact to be determined in District Court, we reverse the summary judgment.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH, WEBER and BARZ concur.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KIM CHARLES HOLMAN, Defendant and Appellant.
    No. 89-483.
    Submitted on Briefs Jan. 11, 1990.
    Decided Feb. 6, 1990.
    786 P.2d 667.
    William F. Hooks, Hooks & Budewitz, Townsend, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patti Powell and James Yellowtail, Asst. Attys. Gen., Helena, John T. Flynn, Broadwater County Atty., Townsend, for plaintiff1 and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Mr. Holman appeals his conviction on a DUI charge following a bench trial in the First Judicial District Court, Broadwater County, Montana. We affirm.

Appellant presents four issues for review:

1. Did the trial court err in considering a presumption that appellant was under the influence of alcohol while driving, based on blood alcohol concentration test results which were not related back to the time of operation?

2. Did the trial court abuse its discretion in rejecting the opinions of the defense’s expert witness?

3. Did the trial court err in relying on expert witness testimony predicated upon a dissimilar pre-trial experiment?

4. Is the evidence sufficient to sustain the conviction?

On March 18, 1988, Kim Charles Holman worked his shift at Helena’s Columbia Paint Company. Immediately after work, around 4:30 p.m., he went to Hap’s Place in Helena with his nephew and admittedly drank four or five beers. He left Hap’s about 7:00 p.m. for his home in Townsend. On the way out of Helena, Holman purchased two more cans of beer. Holman testified at trial that prior to being stopped he had only a few sips out of one can. However, at the time of his arrest he stated that he had consumed seven beers.

At approximately 7:30 p.m., after dark, Highway Patrolman Larry Bean clocked the Holman vehicle approaching him at 77 miles per hour. Because he had to turn around, Patrolman Bean pursued Holman for two miles with his flashing lights on before he caught up to the Holman vehicle. When he did catch up to Holman, Bean observed the vehicle swerve across the road to the left and back. Holman then tried to pull over on a wide place in the road, but misjudged, and drove off the road finally stopping in a barrow pit.

Holman testified that he had deliberately delayed pulling over when he saw the patrol car’s flashing lights. He was trying to light a cigarette, fasten his seat belt, and hide the beer. Holman thought the lighted cigarette would mask the alcohol on his breath and he did not want the patrolman to see the opened and unopened beer containers.

Patrolman Bean testified that when Holman stepped out of his vehicle it was obvious that he had been drinking. His breath smelled strongly of alcohol, his eyes were bloodshot, his face was flushed, and he had to lean against his vehicle for support. Bean administered field sobriety tests, including the horizontal gaze nystagmus test, the walk and stand test and the one-legged stand test. Holman failed all these tests. He staggered, almost fell and could not perform some of the tests. While Holman admitted that he had had trouble with the field sobriety tests he attributed his poor performance to nervousness and to dizziness from smoking the cigarette.

Patrolman Bean arrested Holman and took him to the Townsend Sheriffs office. At the Sheriffs office Holman was booked, given his Miranda rights, interviewed and given an Intoxilyzer 5000 breath alcohol level test. Holman tested at .178; a person is presumed intoxicated at a test level of .10.

Holman was convicted of driving under the influence of alcohol following a jury trial in Justice Court No 1, Broadwater County. He appealed to the District Court and received a trial de novo. Holman expressly waived a jury trial.

In his defense, Holman contended that his appearance of intoxication and his .178 alcohol level test were caused by ingesting paint fumes while at work. Some of the compounds in the traffic paint he worked with on March 18, 1988, are Toluene, Hexane, Naptha, mineral spirits and Xylol. Toluene, in particular, can cause the appearance of intoxication. The appellant’s expert testified that in his opinion the Intoxilyzer 5000 is not specific for alcohol but would respond to a wide number of chemicals including the above-mentioned substances which would affect the breath alcohol test results. The State’s expert testified that in his opinion the Intoxilyzer 5000 will not register Hexane, Naptha, Xylol or mineral spirits as part of a breath alcohol level test. It is theoretically possible that the Intoxilyzer 5000 might register the presence of Toluene, but if it did the machine would signal an invalid test or register an interference. Thus, the State’s expert testified that the Intoxilyzer 5000 is specific for alcohol and would not register other substances as alcohol.

I and III

Because we find issues II and IV dispositive, we need not discuss issues I and III.

II

Appellant argues that the District Court abused its discretion in rejecting the defense expert’s opinion. We disagree.

At trial, appellant contends that his poor performance on the field sobriety tests resulted from ingesting paint fumes at work rather than consuming five to seven beers in an hour and one-half after work. As proof, the defense offered expert testimony to support the inference that paint fumes caused appellant’s elevated breath alcohol level. The record discloses, however, that the defendant’s and State’s experts disagreed as to whether the Intoxilyzer 5000 could register Toluene, Hexane, Naptha, Xylol or mineral spirits as alcohol. The defendant’s expert opined that it could, while the State’s expert opined that it could not. The District Judge as trier of fact resolved that conflict in the State’s favor.

Evaluation of expert testimony lies “within the province of the trier of fact.” State v. Trask (Mont. 1988), [234 Mont. 380,] 764 P.2d 1264, 1267, 45 St.Rep. 1988, 1992. In the case at bar the District Judge evaluated the two experts’ testimony and found the State expert’s testimony more credible. The function of the trier of fact is to make such determinations of credibility and weight when confronted with conflicting evidence. We cannot disturb those determinations. The District Court Judge, in fulfilling his role as trier of fact, did not abuse his discretion in finding the State’s expert more credible.

IV

Appellant also argues that the State presented insufficient evidence to sustain a conviction. Again, we disagree.

Upon review, “a conviction may not be overturned when the evidence presented, viewed in the light most favorable to the prosecution, would permit a rationale [sic] trier of fact to find the essential elements necessary to establish the offense. (Citations omitted.)” Trask, 764 P.2d at 1266.

At trial, the District Judge, in denying defendant’s motion to dismiss, summarized the State’s evidence, excluding the Intoxilyzer 5000 test, as follows:

“[W]e have field sobriety tests, we have the admission of the defendant he had been drinking, that he had seven beers. We have testimony of the police officer the man was staggering, that he almost fell down, that there was a high odor of alcohol and as I said a moment ago he admitted he had at least seven beers. And the police officer’s testimony relates to the time when he was arrested and the time he was driving. He jogged his vehicle to the left on the highway, came back apparently seeking a place to park, misjudged, drove down into the barrow pit with his automobile. All of these actions are consistent with the actions of an intoxicated driver, a man driving while under the influence of alcohol.”

Thus, even disregarding the Intoxilyzer 5000 test, sufficient evidence exists to convict appellant.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES McDONOUGH, WEBER and BARZ concur.


text:
    MONTANA DEACONESS MEDICAL CENTER, a nonprofit corporation, Plaintiff and Respondent, v. EDDIE DOHERTY and Lola Doherty, husband and wife, Defendants and Appellants.
    No. 89-459.
    Submitted on Briefs Dec. 1, 1989.
    Decided Feb. 8, 1990.
    786 P.2d 669.

      Elizabeth A. Best, Best Law Offices, Great Falls, for defendants and appellants.
    Sharon Anderson, Staff Atty., Montana Deaconess, Great Falls, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Eddie and Lola Doherty appeal from an order of the District Court of the Eighth Judicial District, Cascade County, denying their motion to amend the court’s findings of fact, conclusions of law and order. We affirm.

Appellants received extensive medical treatment from respondent Montana Deaconess Medical Center during 1986. Appellants refused to pay in full the $8,325.99 balance remaining on their bill and respondent filed suit. Following negotiations between the parties’ attorneys, appellants executed a confession of judgment on October 29, 1986, acknowledging their indebtedness to respondent in the amount of $8,325.99. The parties further stipulated to a payment schedule and a periodic review of appellants’ financial status by respondent.

Appellants substantially complied with their payment obligations. In February of 1989, respondent, pursuant to an analysis of appellants’ most recent financial statement showing a material change in available income, requested that appellants increase the amount of their payments to $200 per month. When appellants denied this request, respondent obtained a writ of execution and recovered $643 from appellants’ checking account in March of 1989.

Appellants filed a petition to vacate judgment or stay further execution on April 3,1989. Appellants alleged in their petition that appellant Eddie Doherty was under the influence of mind altering drugs when he signed the confession of judgment. Furthermore, appellants claimed respondent’s unjustifiable execution on their checking account coupled with the threat of further execution caused serious detriment to Eddie Doherty’s health.

Following hearing on June 5, 1989, the District Court issued the following findings of fact, conclusions of law and order:

“Findings of Fact
“As appears from the record and the testimony in this case, [appellants] signed a confession of judgment dated October 29, 1987, which was filed with this court on November 2, 1987. A stipulation setting forth payment arrangements, signed by attorneys for [respondent] and [appellants] was filed simultaneously. [Respondent] and [appellants] were represented and advised by counsel at all times relevant,
“[Appellants] did not comply with the terms of paragraph 4 of the Stipulation, in that they failed to submit the complete and accurate financial information to [respondent] every six months and they failed to make the increased payment required due to a material change in [appellants’] net income as evidenced by the financial statement submitted February 1989. As a result of the [appellants’] failure to comply with the terms of paragraph 4, [respondent] caused a writ of execution to issue in accordance with paragraph 6 of the Stipulation. The sheriff levied on $643.00 from [appellants’] bank account.
“Conclusions of Law
“1. [Respondent] obtained judgment in the amount of $8,325.99 plus interest and costs against [appellants] pursuant to the confession of judgment filed November 2, 1987.
“2. [Appellants] are not entitled to relief from judgment pursuant to Rule 60(b)(1), 60(b)(2) or 60(b)(3) M.R.Civ.P. as more than sixty days had passed between the entry of judgment and the filing of the petition.
“3. [Appellants] are not entitled to relief from judgment pursuant to Rule 60(b)(4), 60(b)(5) or 60(b)(6) as the evidence presented is insufficient to support relief for any of those reasons.
“4. [Appellants’] motion (petition) was not made within a reasonable time as it was filed more than seventeen months after the entry of judgment.
“5. The confession of judgment operates as res judicata in this case and is conclusive as to all claims which were in existence related to the subject matter of this case.
“Order
“It is hereby ordered, adjudged and decreed that [appellants’] Petition to Vacate Judgement (sic) or Stay Further Execution is denied. The judgment entered in this matter may be enforced.”

Appellants appeal from the District Court’s denial of their motion to amend the above findings, conclusions and order denying their petition to vacate the judgment against them. We affirm.

Rule 52(b), M.R.Civ.P., permits district courts, upon motion of either party, to amend findings of fact and modify judgments accordingly. Nonetheless, on appeal, we will assume as correct the findings of the District Court if such are buttressed by substantial evidence. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 283, 742 P.2d 456, 461. The transcript of the instant proceedings reveals that appellants were the only witnesses. Upon reviewing the record, we conclude that substantial credible evidence supports the findings of the District Court.

We likewise affirm the lower court’s conclusions of law. The District Court concluded that appellants were not entitled to relief from their confession of judgment under any of the grounds set forth in Rule 60(b), M.R.Civ.P. Rule 60(b) requires that parties move for relief within 60 days from entry of judgment if, as in this case, the basis of their claim is mistake, inadvertence, surprise, excusable neglect or fraud. Once the 60 day period has passed and absent a reasonable delay, district courts may properly deny amendment. In re the Marriage of Waters (1986), 223 Mont. 183, 187, 724 P.2d 726, 729. Appellants filed their petition to vacate on April 3, 1989, one year, five months and one day after respondent filed their confession of judgment. Appellants offer no good reason for their delay. We affirm the District Court’s denial of appellants’ motion to amend its order denying their petition to vacate the judgment against them.

Counsel for appellants interjects numerous collateral issues in her brief. The dispositive issue on appeal is the propriety of the District Court’s refusal to vacate the judgment confessed by appellants and entered by respondent. We may on appeal review only those issues decided by the District Court, and, absent an abuse of discretion, we will not reverse its ruling. Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 752 P.2d 196, 200, 45 St.Rep. 621, 625.

Counsel for appellants should further note that this Court may review the entire district court record on appeal. Having done so in the instant case, we find no evidence of fraud, collusion misrepresentation or deceit on the part of counsel for respondents, in any proceeding before this Court or the court below. Allegations of this nature are quite serious and should not be made lightly. Certainly such accusations are no substitute for substantive legal arguments. The District Court properly denied appellants’ motion for sanctions against counsel for respondent.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES WEBER, HUNT and McDONOUGH concur.


text:
    MICHAEL McGINLEY, Plaintiff and Appellant, v. OLE’S COUNTRY STORES, INC., Defendant and Respondent.
    No. 89-439.
    Submitted on Briefs Nov. 21, 1989.
    Decided Jan. 30, 1990.
    Rehearing Denied March 8, 1990.
    786 P.2d 1156.
    Christopher Daly, Bruce Barrett, Missoula, for plaintiff and appellant.

      Paul C. Meismer, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Fourth Judicial District, Missoula County, awarding respondent costs. Subsequent to a jury trial and verdict in favor of respondent on May 8 and 9, 1989, respondent filed a memorandum of costs as set forth below:

Clerk’s Fee:
Appearance Fee $ 40.00
Judgment Fee 25.00
Steno Fee ' 3.00
$ 68.00
Witness Fees:
Laurel Kaysen $ 10.00
Robert Bjornstad 10.00
Mark Olson 10.00
$ 30.00
Deposition Expenses:
Michael McGinley $282.00
William A. Gromko, M.D. 248.00
$530.00
Exhibits:
Photographs used as Exhibits at trial, 5
photos at $11.00 each $ 55.00
$ 55.00
TOTAL $683.00

Over appellant’s objection to certain itemized costs, the District Court on June 8,1989, issued an order awarding respondent all costs set forth above. Appellant appeals from that order. We reverse.

Appellant first contends the District Court erred in awarding respondent a witness fee for the appearance of Mark Olson who sat at counsel table as the defendant during the trial and testified as the sole stockholder of respondent corporation. Respondent concedes this issue, therefore we need not address the substantive matters contained therein and thus reverse the order of the District Court.

Secondly, appellant cites as error respondent’s recovery of costs for its deposition of him. The prevailing party may properly recover the costs of depositions. Section 25-10-201, MCA. However, when the purpose of the deposition is merely to assist the requesting party in compiling its case, the cost of that deposition is not taxable. Semenza v. Leitzke (Mont. 1988), [232 Mont. 15,] 754 P.2d 509, 512, 45 St.Rep. 829, 832. The District Court thus erred in the instant case in awarding respondent its cost incurred in deposing appellant. We reverse.

Appellant’s third specification of error is the lower court’s award of costs to respondent for pictures taken at the accident site. Appellant contends these are not reasonable and necessary expenses within the meaning of § 25-10-201. We agree. In this case, the District Court denied respondent’s motion requesting that the jury view the premises. The parties instead introduced photographic evidence of the site. It is in the discretion of district courts to permit jurors to view the physical location under consideration. State Highway Commission v. Cooper (1974), 164 Mont. 272, 277, 521 P.2d 190, 192. Thus photographs of the scene are not a “necessary” expense within the meaning of the statute. We reverse.

Lastly, appellant contends the District Court erroneously compelled it to pay respondent’s costs incurred in transcribing Dr. Gromko’s audio-visual deposition. Rule 30(h), M.R.Civ.P. is dispositive of this issue:

“Any party may make at his own expense a simultaneous stenographic, audio record or tape recording of the deposition. Upon his request and at his own expense, any party is entitled to an audiovisual or tape recorded copy of the deposition. On motion the court, for good cause, may order the party taking, or who took, a deposition by audio-visual or by tape recording to furnish, at his expense, a transcript of the deposition.”

Rule 30(h), M.R.Civ.P.

Although respondent provided transcriptions for use during viewing of the audio-visual deposition at trial, such does not rise to the level of good cause contemplated by Rule 30(h). Respondent obtained the transcription for its own use and convenience and as such must bear the cost of the same. We reverse.

Reversed.

JUSTICES HARRISON, SHEEHY, WEBER and HUNT concur.


text:
    CLARENCE D. ANDERSON and Gloria A. Anderson, husband and wife, et al., Plaintiffs and Appellants, v. MICHAEL A. BASHEY and Joyce A. Bashey, Marc Hutchinson and Jane Doe Hutchinson, Donna DeCaro and John Doe DeCaro, Bashey and Company, and Bashey, DeCaro & Company, Defendants and Respondents, and Dana P. Daigle and Ruth D. Daigle, Harry E. Chesman and Deborah T. Chesman, and Michael J. Mulroney, Defendants.
    No. 89-308.
    Submitted on Briefs Oct. 20, 1989.
    Decided Feb. 2, 1990.
    Rehearing Denied March 20, 1990.
    787 P.2d 304.
    Thomas H. Clary, Clary & Clary, Great Falls, Spencer Hall Jr., Mundt, MacGregor, Happel, Falconer, Zulauf & Hall, Seattle, Wash., for plaintiffs and appellants.
    Robert J. Emmons, Emmons & Coder, Great Falls, for Bashey, etc.
    Mary C. Eklund, Bittner & Barker, Seattle, Wash., for Bashey, Hutchinson, DeCaro (& Co.).
    William E. Fitzharris, Jr., Hallmark, Keating & Abbott, Seattle, Wash., for Chesman.
    Geoffrey P. Knudsen, Stoel, Rives, Boley, Jones & Grey, Seattle, Wash., Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, for Daigle.
    Judith A. Butler, Lukins & Annis, Spokane, Wash., Terry B. Cos-grove, Luxan & Murfitt, Helena, for Mulroney.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs appeal a judgment of the Eighth Judicial District, Cascade County, granting defendant’s motion to dismiss for lack of in personam jurisdiction.

Defendants raise the question of whether or not the plaintiffs properly and timely filed their notice of appeal. Having examined the record and the law on the issue, we find the appeal is untimely and we are without jurisdiction to hear it.

The plaintiffs in this action purchased interests in a Washington general partnership that owned and operated ten orchards located in central Washington. The defendants are Washington accountants, who worked for the general partnership.

The plaintiffs allege the defendants joined in a scheme to defraud Montana residents through the unlawful sale of partnership interests in the Washington fruit orchards. According to the plaintiffs, the accountants assisted in carrying out the orchards scheme by preparing tax opinion letters and financial information used to sell the orchard securities in Montana and by acting as the accountants for the orchards by, among other services, preparing annual tax returns for the orchard partnerships and preparing individual schedule K-l tax forms for the investors in Montana.

On March 1, 1989, the District Court entered an order dismissing all claims assessed against the defendants Michael A. Bashey and Joyce A. Bashey, husband and wife; Donna DeCaro and her deceased husband, Michael DeCaro; Marc S. Hutchinson and Elizabeth Hutchinson, husband and wife; Bashey & Company, a Washington general partnership; and Bashey DeCaro & Company, a Washington general partnership (collectively hereinafter the Bashey defendants). The District Court in March 1, 1989, ruled that there was no personal jurisdiction over the Bashey defendants in Montana.

On March 2, 1989, the plaintiffs acknowledged personal service of the notice of entry of judgment of the March 1, 1989 order. Subsequently, on March 13, 1989, the plaintiffs filed a motion for reconsideration. Finally, on April 27, 1989, the plaintiffs filed their notice of appeal.

The issue raised by the plaintiffs is whether the District Court properly granted defendants’ motion to dismiss for lack of in personam jurisdiction. We do not have jurisdiction to determine this issue. Plaintiffs’ notice of appeal was not timely, and therefore this Court is without jurisdiction to hear it. Consequently, plaintiffs’ appeal must be dismissed.

On March 1, 1989, the District Court entered an order dismissing all claims against the Bashey defendants. On March 2, 1989,. the plaintiffs acknowledged the service of the notice of entry of judgment. At that point, if plaintiffs desired relief from the court’s judgment they had the following alternatives:

1. File an appeal within 30 days from the service of notice of entry of judgment. Rule 5(a)(1), M.R.App.P.

2. Move for a new trial not later than 10 days after service of the notice of entry of judgment. Rule 59(a) and (b), M.R.Civ.P.

3. Move to alter or amend the judgment not later than 10 days after the service of the notice of entry of judgment. Rule 59(g), M.R.Civ.P., or

4. Move for an amendment of the District Court’s findings no later than 10 days after service of the notice of entry of judgment. Rule 52(b), M.R.Civ.P.

Although the plaintiff had a variety of motions to choose from, the plaintiffs elected to file a motion for reconsideration. A motion for reconsideration is not listed as a post-judgment motion under the Montana Rules of Civil Procedure. The plaintiffs’ motion therefore has no effect, unless we equate it to a motion under Rule 59, or Rule 52, M.R.Civ.P. The plaintiffs’ motion fails to meet the provision “. . . no later than 10 days after service of notice of entry of judgment” as required by the Rules. On March 2, 1989, the plaintiffs acknowledged personal service of the notice of entry of judgment. Unfortunately, the plaintiffs filed their motion on March 13, 1989, one day too late under the Rules.

The plaintiffs’ tardiness in filing their motion has devastating consequences under the time requirements for filing a notice of appeal. Under Rule 5, M.R.App.P., the time for filing a notice of appeal may be suspended by certain timely post-trial motions. Rule 5(a)(4), M.R.App.P. Here, however, plaintiffs’ post-trial motions were without effect to lengthen the time limits for a notice of appeal. The motion filed by the plaintiff is barred by the ten day limitation. Rules 59 and 52, M.R.Civ.P.

Rule 5(a)(1), M.R.App.P., provides that an appeal from an order must be taken within 30 days of its entry except that in cases where service of notice of entry is required, the time for appeal shall be 30 days from the service of notice of entry of judgment. In Re the Marriage of McDonald (1979), 183 Mont. 312, 314, 599 P.2d 356, 357. Here, service of the notice of entry of judgment was made on March 2, 1989. The plaintiffs filed their notice of appeal on April 27, 1989, well beyond the 30 day time limit set forth in Rule 5(a)(1), M.R.App.P.

This Court has long held that the time limits for an appeal are mandatory and jurisdictional. O’Connell v. Heisdorf (1982), 202 Mont. 89, 91, 656 P.2d 199, 200; Price v. Zunchich (1980), 188 Mont. 230, 235, 612 P.2d 1296, 1299; Snyder v. Gommenginger (1979), 183 Mont. 375, 376-77, 600 P.2d 171, 172-73. In the present case, the plaintiffs were required to perfect an appeal in the manner and within the time limits provided by the law. The plaintiffs have failed, and therefore, this Court did not acquire jurisdiction to entertain and determine their appeal. Snyder, 600 P.2d at 173.

Accordingly, it is hereby ordered that this appeal be dismissed as not having been timely filed pursuant to Rule 5, M.R.App.P.

JUSTICES HARRISON, HUNT, McDONOUGH and BARZ concur.


author: JUSTICE HARRISON JUSTICE SHEEHY,

text:
    THELMA WALKER, Plaintiff and Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendants and Respondents.
    No. 89-065.
    Submitted Oct. 17, 1989.
    Decided Feb. 5, 1990.
    Rehearing Denied March 8, 1990.
    786 P.2d 1157.
    Howard F. Strause argued, Great Falls, for plaintiff and appellant.
    William D. Jacobsen argued, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Thelma Walker (Walker), plaintiff and appellant, brought this action alleging lack of good faith and unfair practices on the part of St. Paul Fire and Marine (St. Paul) in the negotiation and settlement of a legal malpractice claim against its insured. The District Court granted summary judgment in favor of defendant St. Paul, holding that St. Paul had reasonable grounds to deny coverage for Walker’s claim against its insured, and therefore St. Paul did not lack good faith in its dealings with Walker. We reverse.

The issues presented by the appellant are:

1. Did the District Court err in granting St. Paul’s motion for summary judgment?

2. Did the District Court err in granting costs for depositions which were not used as a basis for granting summary judgment?

When her husband Dale died in 1979, Thelma Walker asked B. Miles Larson, a Stanford, Montana, attorney to handle the probate of Dale’s estate, including the preparation of the federal estate tax return. Due to an error by attorney Larson, Mrs. Walker had to pay approximately $5,000 to the Internal Revenue Service that she otherwise would not have had to pay. Walker later sued Larson for legal malpractice and St. Paul, Larson’s insurer, for bad faith and unfair trade practices prohibited under § 33-18-201, MCA, of the Montana Unfair Trade Practices Act.

An earlier appeal to this Court held that Walker’s malpractice claim against attorney Larson was made within the effective period of his policy with St. Paul. Walker v. Larson (1986), 223 Mont. 333, 727 P.2d 1321. Even though Walker did not actually file a lawsuit within the policy period, this Court found that by filing a complaint with the Commission on Practice detailing Larson’s actions and advising both Larson and St. Paul that she had done so, Walker had made a claim. This Court concluded there was coverage as a matter of law. Walker, at 336, 727 P.2d at 1323.

Following the first Walker decision, the claims against Mr. Larson were tried to a jury and a verdict was returned against Mr. Larson. The judgment based upon that verdict has been satisfied. The only remaining issue after that judgment was the bad faith claim by Walker against St. Paul which remained to be litigated.

St. Paul moved for summary judgment against Walker. Following oral arguments, the District Court ruled that St. Paul had reasonable grounds for denial of coverage for Walker’s claim against Larson and that the existence of reasonable grounds for denial of coverage was established, as a matter of law, by the original District Court summary judgment in St. Paul’s favor on the coverage question. The District Court recognized that the Montana Supreme Court reversed the District Court and upheld coverage. Nonetheless, the District Court in the present summary judgment concluded that a reasonably debatable issue regarding coverage had been established by the opposing rulings of the District Court and the Supreme Court, and therefore concluded as a matter of law that summary judgment was appropriate for St. Paul. We do not agree with that conclusion because of the presence of issues of material fact.

Summary judgment is proper only where there is no genuine issue as to any material fact. Rule 56(c), M.R.Civ.P. The purpose of summary judgment is to encourage judicial economy by eliminating unnecessary trials, but it is not to be substituted for trial if a factual controversy exists. Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 280, 687 P.2d 1015, 1019. Furthermore, the party moving for summary judgment has the burden of establishing that no genuine issue of fact exists, and only when that burden is met does the burden shift to the opposing party to show there is a genuine issue as to some material fact. Peschel v. Jones (Mont.1988), [232 Mont. 516,] 760 P.2d 51, 54, 45 St.Rep. 1244, 1248. Of course this Court will not reverse a district court order unless such order is clearly erroneous resulting in an abuse of discretion. Walker, at 335, 727 P.2d at 1322-23.

In summary, Walker contends that the actions of St. Paul in connection with the investigation of the claim constituted violations of § 33-18-201, MCA, Montana’s Unfair Trade Practices Act.

Paragraph (2) of that Section refers to the failure of an insurance company to acknowledge and act reasonably promptly upon communications with respect to claims. Walker contends that St. Paul’s failure to respond to letters addressed to it and the failure to investigate following the receipt of such letters constitutes a violation of the Act. Walker also contends that there was a failure to adopt and implement reasonable standards for the prompt investigation of claims as required under paragraph (3) of that Section. Various facts are set forth by Walker which could be construed as sufficient to establish such a failure. Walker also claims that there was a refusal to pay claims without conducting a reasonable investigation as required under paragraph (4) of that Section. Sufficient facts are set forth to establish an issue as to whether or not a reasonable investigation had been made as so required.

We do not find it necessary to discuss the factual contentions of both parties in detail. The record before the District Court established that there were genuine issues of material fact which precluded summary judgment. The determination by the District Court that the difference in coverage determination by the District Court and Supreme Court established reasonable grounds as a matter of law does not address the issues of material fact which have been raised.

We reverse the summary judgment on the part of the District Court. Because of the reversal on the first issue, it is not necessary that we address the second issue regarding costs for depositions.

We reverse the summary judgment for St. Paul Fire and Marine Insurance Company and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDON-OUGH, WEBER and BARZ concur.

JUSTICE SHEEHY,

concurring specially:

I have signed the foregoing opinion and concur in it. I want to clear up, however, my view of the appellant’s standard of review of a motion granting a summary judgment under Rule 56, Montana Rules of Civil Procedure.

It is stated in the foregoing opinion that “this Court will not reverse a district court’s order unless such order is clearly erroneous resulting in an abuse of discretion. Walker, 727 P.2d at 1322-1323.”

The foregoing statement comes from our opinion in Walker v. Larson (1986), 223 Mont. 333, 727 P.2d 1321, there this Court stated:

“Summary judgment is granted only when there is no genuine issue of material fact. Rule 52(a), M.R.Civ.P. We will not reverse the order of a district court unless it is clearly erroneous resulting in the abuse of discretion. In this case the ruling was clearly erroneous.” 727 P.2d at 1322-1323.

The foregoing statement relied on the wrong rule. Instead of Rule 52(a), it should have referred to Rule 56(c), M.R.Civ.P. This Court compounded the misapplication in Walker by then referring to the “clearly erroneous” standard and an abuse of discretion standard, neither of which has any application to the appellate standard of review of a summary judgment.

“The ‘unless clearly erroneous’ doctrine, discussed above, applies only to appellate review of findings of fact. It does not apply to the district court’s conclusions of law. This is clear from both the context of the rule [Rule 52(a)] and from long established principles that the appellate court is not bound by the trial court’s view of the law. The requirement in Rule 52(a) that, in addition to findings of facts, the district court shall ‘state separately its conclusions of law thereon’ is to furnish the causal link between the facts and the judgment rendered. But in reviewing the judgment, so far as questions or conclusions of law are concerned, the appellate court is not bound by the trial court’s view of the law.”

5A Moore’s Federal Practice, 52-76, 52-77, § 52.03[2](Pub. 410).

Rule 56(c) sets out the duty of a district court in determining a motion for summary judgment. It provides in pertinent part:

“. . . The judgment shall be rendered forthwith with the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .”

We must be careful about using the term “abuse of discretion,” in reviewing a district court’s grant of a summary judgment. The District Court has no “discretion’ if there is no genuine issue of material fact; it “shall” render summary judgment if there is no fact issue as a matter of law. Rule 56(c). It is possible, however, that the trial court may exercise discretion as to whether the opposing party has not acted properly to establish a genuine issue of material fact. Thus, from Moore, we learn:

“The trial court cannot draw upon any discretionary power to grant summary judgment when that adjudication of law involves any genuine disputed issue of fact. It may however exercise a sound discretion in denying a motion for summary judgment although the moving party may be technically entitled thereto. And, where the opposing party has filed an affidavit under Rule 56(f) the trial court may exercise a sound discretion in determining the adequacy of the opposing party’s stated reasons why he is then presently unable to present by affidavit facts essential to justify his opposition. And, if the reasons are inadequate, what disposition should be made of the pending motion for summary judgment? Where the trial court determines that the opposing party has not shown some sufficient reason for a continuance to present opposing evidentiary affidavits, to take depositions, or otherwise obtain the opposing evidence, and proceeds to grant summary judgment in favor of a party otherwise entitled thereto, this exercise of discretion in dealing with the opposing party will not be interfered with by an appellate court except where there has been an abuse ...”

6 Moore’s Federal Practice, 56-1559, § 56.27[1](1976).

With that clarification of the standard of appellate review to be applied in this cause, I have concurred in the foregoing opinion.