author: JUSTICE REGNIER

text:
    ROBERT J. WEITZ and MICHAEL WEITZ, Petitioners and Respondents, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, and STATE BOARD OF LAND COMMISSIONERS, Respondents and Appellants.
    No. 97-133.
    Submitted on Briefs June 19, 1997.
    Decided August 1, 1997.
    54 St.Rep. 807. 943 P.2d 990.
    284 Mont. 130.

      For Appellants: Tommy H. Butler; Special Assistant Attorney General; Montana Department of Natural Resources and Conservation; Helena.
    For Respondents: John V. Potter, Jr., Attorney at Law, White Sulphur Springs.
    For Amicus Curiae: Hertha L. Lund; Datsopoulos, MacDonald & Lind; Missoula (Montana Farm Bureau Federation).
   JUSTICE REGNIER

delivered the opinion of the Court.

On January 10, 1997, the Fourteenth Judicial District Court, Meagher County, filed a memorandum opinion and judgment dismissing the administrative violations of Rules 26.3.186(1) and 26.3.198(1), ARM, by Robert and Michael Weitz which were previously upheld by the Director of the Montana Department of N atural Resources and Conservation (DNRC). The DNRC and the State Board of Land Commissioners appeal the memorandum opinion and judgment. We affirm.

The issue on appeal is whether the District Court erred in concluding that the actions of a lessee traveling by existing roadways over state lands to conduct activity on private lands does not constitute a recreational use under the statutes and rules of the Recreational Use Act of 1991.

FACTUAL BACKGROUND

Robert J. Weitz and Michael Weitz are stockholders in a family ranch corporation, Holmstrom Land Company, Inc. The corporation owns approximately twenty-five sections of land and has ten-year agricultural leases on three and one-quarter sections of state lands that lie within its deeded land boundaries. A large portion of the deeded lands are accessible from the main ranch only by roads which cross the leased state sections.

In the fall of 1992, the Montana Department of Fish, Wildlife and Parks (FWP) set up an operation to investigate the hunting activities which Robert and Michael Weitz conducted on their private ranch lands pursuant to the landowner’s exemption which does not require an outfitters license from the State. See § 37-47-101(5), MCA. As a result of this operation, both Michael and Robert were charged with hunting violations. The Department of State Lands obtained the reports and statements of the undercover FWP agents and charged the Weitzs with violating regulations relating to recreational use of state lands. The Department sought civil penalties arising from these violations.

A hearing was held before a hearing examiner on April 20, 1994. The examiner issued his findings on November 2, 1995. The Weitzs objected to the examiner’s findings and conclusions. The Director of the DNRC, Arthur P. Clinch, heard the objections and entered a final order denying their appeal and assessed civil penalties against Robert and Michael.

The penalties were assessed for alleged violations of rules adopted under the Recreational Use Act of 1991. Robert Weitz was held to be in violation of Rule 26.3.186(1), ARM, in that he allegedly violated the motorized vehicle use restriction on roads on state lands not open to vehicle use. Michael Weitz was held to also be in violation of Rule 26.3.186(1), ARM, and Rule 26.3.198(1), ARM, in that he allegedly performed the special recreational use of outfitting on state lands without a special recreation use license. The Weitzs appealed the DNRC’s final order to the Fourteenth Judicial District Court. After submission of briefs and oral argument the District Court filed its memorandum opinion and order setting aside the assessment of civil penalties and ordering the charges dismissed with prejudice. The DNRC and the State Board of Land Commissioners appeal from this judgment.

DISCUSSION

Did the District Court err in concluding that the actions of a lessee traveling by existing roadways over state lands to conduct activity on private lands does not constitute a recreational use under the statutes and rules of the Recreational Use Act of 1991?

When a district court reviews an agency decision, the standard of review it applies is set forth in the Montana Administrative Procedure Act at § 2-4-704, MCA. The relevant portions of that statute state:

(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(b) findings of fact, upon issues essential to the decision, were not made although requested.

Section 2-4-704, MCA. In reviewing the findings of atrial court sitting without a jury, this Court applies the following three-part test to determine if the trial court’s findings on an agency decision are clearly erroneous: (1) the record will be reviewed to see if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, it will be determined whether the trial court misapprehended the effect of evidence; and (3) if substantial evidence exists and the effect of evidence has not been misapprehended, the Supreme Court may still decide that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed. State Comp. Mut. Ins. Fund v. Lee Rost Logging (1992), 252 Mont. 97, 827 P.2d 85, following Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. In reviewing a state agency’s conclusions of law under this section, the standard is to determine if the state agency’s interpretation of the law is correct. Tokumoto v. Department of Revenue (1994), 264 Mont. 56, 869 P.2d 782; Baldridge v. Rosebud County School Dist. No. 19 (1994), 264 Mont. 199, 870 P.2d 711.

The DNRC and the Board contend that the District Court substituted its judgment for that of the agency as to the weight of the evidence on questions of fact in violation of § 2-4-704(2), MCA. They contend that there was sufficient credible evidence for the agency’s determination that the Weitzs were making recreational use of state lands by driving hunters and allegedly hunting on the state lands for profit.

The decision by the District Court held that the DNRC’s attempted enforcement of rules adopted under the Recreational Use Act of 1991, as against a lessee of the state land involved, was an over broad and unlawful application of an administrative regulation, in excess of statutory authority, and an abuse of discretion. The court based this decision on its finding that the lessees were merely using existing roads to travel and conduct activity elsewhere and thus concluding that their activities did not constitute a public and recreational use of state lands.

The Statement of Intent for the Recreational Use Act of 1991 provides that “Consistent with the provisions of this bill, it is intended that public recreational use of state lands be accomplished to the fullest extent possible.” 1991 Mont. Laws, Chap. 609, p. 2100. The Act was enacted to provide that an allowable use of state lands includes general recreational use by the public. The Act was not intended to restrict or address lessees’ use of their leased land when not acting as recreationists, nor was it intended to restrict their use and enjoyment of adjacent private land. Under the Statement of Intent, the Legislature notably distinguished lessees of state lands as a separate class from the public wishing to make use of state lands. When state land is posted, the recreational user must contact the lessee or his agent and provide notice of the type and extent of the recreational use contemplated before entering onto posted state land. 1991 Mont. Laws, Chap. 609, p. 2100.

The provisions contained within the Recreational Use Act of 1991 are clearly intended to only apply to recreational use and to recreationists. Section 77-1-101, MCA, defines recreational use as:

(2) “Commercial or concentrated recreational use” means any recreational use that is organized, developed, or coordinated, whether for profit or otherwise. Commercial or concentrated recreational use includes all outfitting activity and all activities not included within the definition of general recreational use.
(4) “General recreational use” includes noncommercial and non-concentrated hunting, fishing, and other activities determined by the board to be compatible with the use of state lands.

General recreational use of state lands is defined in the DNRC’s rules to mean “fishing or hunting for game for which a hunting license is required by the department of fish, wildlife and parks. It also includes accompanying a person who is hunting or fishing for the purpose of assisting that person.” Rule 26.3.182(11), ARM.

The DNRC determined that the Weitzs were engaged in general recreational use of state lands and that as a result of this activity they violated the rule prohibiting motorized vehicle travel over state lands for recreational uses. Rule 26.3.186(1), ARM. The DNRC also determined that Michael Weitz was engaged in special recreational use of outfitting on state lands without a special recreational use license. Rule 26.3.198(1), ARM. The application of these rules to the Weitzs was based on the DNRC’s conclusion that Robert and Michael Weitz were not merely traversing the state land in order to reach private land but “[w]hile traveling on state land, the hunting groups wore orange clothing, carried loaded rifles, parked, and spotted game during big game hunting season.” However, the findings made by the hearings examiner also acknowledge that no elk or deer were observed to be killed, shot at, or pursued on the leased state lands. We agree with the District Court that the finding made by the hearings examiner that these activities constituted hunting was based upon faulty reasoning, conjecture, and speculation. The court was within its discretion to reverse the agency’s finding, as it was clearly erroneous in view of the reliable, probative, and substantial evidence on the record. Section 2-4-704, MCA. There is substantial evidence in the record to support the District Court’s finding that the activities of the Weitzs did not constitute hunting. This finding is not otherwise clearly erroneous.

Based upon the court’s finding that the Weitzs were not hunting on leased state lands but were merely traveling across those lands to conduct activity elsewhere, the court concluded that the Weitzs were not engaged in a general recreational use of the state lands. This conclusion is correct under the definition of general recreational use set forth in § 77-1-101(4), MCA. The court, therefore, correctly went on to conclude that the “application of the rule prohibiting vehicle travel across State lands — when applied to a lessee of those lands traveling by existing roadways to conduct activity elsewhere — is an over broad and unlawful application of an administrative regulation, in excess of statutory authority and an abuse of discretion and therefore unenforceable.” The District Court was not in error in reversing the DNRC’s determination that Robert and Michael Weitz violated Rule 26.3.186(1), ARM.

The DNRC’s next determination was that Michael Weitz was engaged in special recreational use of outfitting on state lands without a special recreational use license. Rule 26.3.198(1), ARM. The Recreational Use Act of 1991 does not contain a definition of outfitting activity. The definition relied upon by both parties is contained in the professional licensing statutes. Section 37-47-101(5), MCA (1991), provides that an outfitter

means any person, except a person providing services on real property that he owns for the primary pursuit of bona fide agricultural interests, who:
(a) engages in the business of outfitting for hunting or fishing parties, as the term is commonly understood;
(b) for consideration provides any saddle or pack animal or personal service for hunting or fishing parties or camping equipment, vehicles or other conveyance except boats, for any person to hunt, trap capture, take, or kill any game and accompanies such a party or person on an expedition for any of these purposes;
(c) for consideration furnishes a boat or other floating craft and accompanies any person for the purpose of catching fish; or
(d) for consideration aids or assists any person in locating or pursuing any game animal.

At the time the alleged violations occurred in 1992, the Weitzs were outfitting hunters on private lands owned by their corporation under the landowners’ exemption contained in § 37-47-101(5), MCA. As we have previously set forth, the District Court’s finding that the Weitzs were not engaging in hunting on state lands is supported by substantial evidence in the record. Traversing leased state lands in order to conduct outfitting on private lands does not constitute outfitting on the state lands. Thus the District Court did not err when in concluded that Michael Weitz did not violate Rule 26.3.198(1), ARM.

We hereby affirm the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and NELSON concur.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    GREG SHIELDS, KERBIE SHIELDS, individually and as parents and guardians of Nathan Shields, and NATHAN SHIELDS, on his own behalf, Plaintiffs and Appellants, v. HELENA SCHOOL DISTRICT NO. 1, C.R. ANDERSON SCHOOL, HELENA SCHOOL DISTRICT NO. 1 TRUSTEES, SUPT. GARY TOOTHAKER, SEC. 504 COORDINATOR SHIRLEY DEVOE, TITLE IX COORDINATOR MARION EVENSON, C.R. ANDERSON PRINCIPAL PEP JEWELL, C.R. ANDERSON SCHOOL ASSISTANT PRINCIPAL BRUCE CAMPBELL, TEAM TEACHERS: CARL ANDERBERG, CATHY COLLINS, HANS MARTIN, in their capacities as team teachers only, PAT GRASSL, LONA CARTER, individually and in her official capacity as instructor and counselor at C.R. ANDERSON SCHOOL, and WILLIAM G. EVERETT, individually and in his official capacity as an instructor and advisor at C.R. ANDERSON SCHOOL, Defendants and Respondents.
    No. 96-471.
    Submitted on Briefs January 30, 1997.
    Decided August 7, 1997.
    54 St.Rep. 815. 943 P.2d 999.
    284 Mont. 138.

      For Appellants: Matthew J. Sisler, Attorney at Law, Missoula.
    For Respondents: Terry B. Cosgrove, Steven R. Milch; Crowley, Haughey, Hanson, Toole & Dietrich, Billings; P. Keith Keller; Keller, Reynolds, Drake, Johnson & Gillespie, Helena; Allen B. Chronister; Chronister, Moreen & Larson, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Greg, Kerbie and Nathan Shields (the Shieldses) brought this action in the District Court for the First Judicial District, Lewis and Clark County, to recover monetary damages for alleged violations of their constitutional rights and other claims. On Defendants’ motion, the District Court dismissed the action on the basis that the Shieldses failed to exhaust the administrative procedures available under federal and state law. The Shieldses appeal the dismissal of their cause of action. We affirm.

We address the following issues on appeal:

1. Whether the Shieldses’ Notice of Appeal was premature thereby divesting this Court of jurisdiction to entertain the appeal.

2. Whether the District Court erred in failing to consider the Shieldses’ Amendment to Complaint prior to entering its Order.

3. Whether the District Court erred in dismissing the Shieldses’ claims on the basis that they failed to exhaust the available administrative procedures under the Individuals with Disabilities Education Act (IDEA).

4. Whether the District Court erred in dismissing the Shieldses’ claims on the basis that they failed to exhaust the available administrative procedures under the Montana Human Rights Act (MHRA).

Factual and Procedural Background

The Shieldses filed their Complaint in this action on October 13, 1995, and their First Amended Complaint on October 16,1995. They alleged that Defendants failed to properly identify, evaluate, and classify Nathan as a disabled student thereby denying Nathan his right to an appropriate education. In addition, they alleged various state tort claims contending that due to Nathan’s disability, he was discriminated against by certain Defendants.

The latter allegations stem from incidents in which Nathan was prevented from accompanying other students on a ski trip and was allegedly humiliated by one of his teachers in front of his classmates. Based on these incidents, the Shieldses filed a grievance with the school. On January 21, 1995, the school principal informed the Shieldses that she was in agreement with the decision not to allow Nathan to attend the ski trip. No mention was made of any disciplinary action against the teacher. The Shieldses appealed this decision to the superintendent of the Helena School District. On February 10, 1995, the superintendent informed the Shieldses that he would uphold the principal’s determination. The Shieldses next appealed to the Board of Trustees of the Helena School District (the Board). The Board conducted a grievance hearing on June 21,1995. The Shieldses were notified by letter dated June 30,1995, that the Board had voted unanimously to uphold the superintendent’s determination.

On October 16, 1995, the Shieldses filed their First Amended Complaint in the First Judicial District Court, alleging violations of 42 U.S.C. § 1983 (1988) and § 504 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. § 794), as well as various state tort claims. Defendants filed a Motion to Dismiss on December 6, 1995, alleging that the Shieldses had not exhausted administrative procedures under the IDEA or the MHRA. The Shieldses responded to Defendants’ motion asserting that the exhaustion of IDEA and MHRA administrative procedures was not required in this case.

A hearing on the Motion to Dismiss was held on May 2, 1996. The Shieldses filed an amendment to their complaint on June 3, 1996. That same day, the District Court issued its Order dismissing all of the claims made by the Shieldses on the basis that the Shieldses failed to exhaust the available administrative procedures and that the Shieldses failed to prove they were exempt from the exhaustion requirements. The Shieldses appeal the District Court’s Order.

Issue 1.

Whether the Shieldses’ Notice of Appeal was premature thereby divesting this Court of jurisdiction to entertain the appeal.

The District Court entered its Order dismissing the Shieldses’ First Amended Complaint on June 3, 1996. On June 10, 1996, the Shieldses filed what they termed a Motion for Reconsideration. The District Court did not rule on the motion, thus, pursuant to the 60-day time limit for ruling on post-trial motions contained in Rules 59(d) and (g), M.R.Civ.P., the motion was deemed denied on August 9,1996, 60 days after its filing. However, on July 3, 1996, prior to the disposition of their motion, the Shieldses filed a Notice of Appeal.

Defendants contend that the Shieldses’ Motion for Reconsideration was, in effect, a motion to alter or amend the judgment under Rule 59(g), M.R.Civ.P. They also contend that, pursuant to Rule 5(a)(4), M.R.App.R, since the Shieldses filed their Notice of Appeal prior to the disposition of their motion, the Notice of Appeal was premature, thus this Court lacks jurisdiction to entertain the appeal. Rule 5(a)(4), M.R.App.P., (as amended December 19, 1995) provides, in part:

If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion, or if applicable, from the time such motion is deemed denied at the expiration of the 60-day period established by Rule 59(d), Montana Rules of Civil Procedure. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above, or if applicable, from the date of the expiration of the 60-day period established in Rule 59(d), Montana Rules of Civil Procedure. [Emphasis added.]

A motion for reconsideration is not one of the post-judgment motions provided for, or authorized by, the Rules of Civil Procedure. Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 11, 926 P.2d 1364, 1370 (citing Taylor v. Honnerlaw (1990), 242 Mont. 365, 367, 790 P.2d 996, 997-98; Anderson v. Bashey (1990), 241 Mont. 252, 254, 787 P.2d 304,305). We have previously stated, however, that a motion for reconsideration will be equated to a Rule 59(g) motion to alter or amend a judgment if the substance of the motion constructively requests the court to alter or amend the judgment. Haugen, 926 P.2d at 1370 (citing Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275). In order to make that determination, it is necessary to look at the substance of the motion to identify what type of motion has been presented. Haugen, 926 P.2d at 1370.

We note that Defendants, contrary to the argument they make on appeal, argued in their Memorandum Opposing Plaintiffs’ Motion for Reconsideration that there was no procedural basis for the motion and that it was not a Rule 59(g) motion. After reviewing the Shieldses’ motion, we agree with Defendants’ original contention and we conclude that the Shieldses’ motion is not a Rule 59(g) motion as it does not seek to alter or amend the judgment. Nor can the motion be considered equivalent to any of the motions provided for in Rule 5(a)(4), M.R.App.P. Hence, the Shieldses are not bound by the requirement of Rule 5(a)(4) that a notice of appeal filed before the disposition of one of the stated motions shall have no effect and that a new notice of appeal must be filed.

Instead, the Shieldses are bound by the requirements of Rule 5(a)(1), M.RApp.P., which provides:

In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment. ...

Rule 77(d), M.R.Civ.P., provides:

Notice of entry of judgment or order served. Within 10 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry, together with a copy of such judgment or order or general description of the nature and amount of relief and damages thereby granted, shall be served by the prevailing party upon all parties who have made an appearance, but any other party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers.

As the prevailing party, Defendants should have served the Shieldses with a notice of entry of judgment. The Shieldses would then have 30 days from the service of the notice of entry of judgment to file their Notice of Appeal. However, there is nothing in the rules (other than Rule 5(a)(4), M.RApp.P., which we have already stated does not apply in this case) that would preclude the Shieldses from filing their Notice of Appeal prior to receipt of a notice of entry of judgment.

Accordingly, we hold that the Shieldses’ Notice of Appeal was not premature and that this Court does have jurisdiction to entertain the appeal.

Issue 2.

Whether the District Court erred in failing to consider the Shieldses’ Amendment to Complaint prior to entering its Order.

The District Court filed its Order dismissing the Shieldses’ cause of action on June 3,1996 at 2:49 p.m. The Shieldses did not file their Amendment to Complaint until later that same day. The Shieldses contend on appeal that the District Court erred in issuing its Order prior to the amendment being filed thereby precluding the court from considering the amendment when making its determination.

The May 3, 1996 Scheduling Minute Entry Order states that a “[r]equest for ... amendment of pleadings must be filed by June 3, 1996.” The Shieldses, having already amended their complaint once, were required to obtain leave of the court to amend their pleading a second time. Rule 15(a), M.R.Civ.R, provides, in pertinent part:

Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served .... Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party. ... [Emphasis added.]

Since the Shieldses never requested leave of the court to amend their pleadings, their Amendment to Complaint was subject to being stricken.

In any event, there was nothing in the Shieldses’ Amendment to Complaint that would have altered the District Court’s decision to dismiss the case based upon the Shieldses’ failure to exhaust administrative procedures. Accordingly, we hold that the District Court did not err by failing to consider the Shieldses’Amendment to Complaint prior to entering its Order.

Issue 3.

Whether the District Court erred in dismissing the Shieldses’ claims on the basis that they failed to exhaust the available administrative procedures under the IDEA.

The Shieldses contend that they were not required to exhaust administrative procedures under the IDEA because they were seeking relief under 42 U.S.C. § 1983 (1988) and exhaustion is only required for plaintiffs seeking relief under the IDEA. They also argue that futility and due process, two exceptions to the exhaustion rule, apply in this case.

Congress enacted the IDEA to address the failure of state education systems to recognize and meet the educational needs of children with disabilities. 20 U.S.C. § 1400 (1991). The IDEA guarantees that a free appropriate public education and related services will be available to meet the unique needs of all children with disabilities by providing federal funding to states that furnish special education services to students with disabilities. 20 U.S.C. §§ 1400(b)(9) and 1400(c) (1991); 20 U.S.C. §§ 1412 and 1413 (1988). The term “related services,” as used in the IDEA, includes recreational activities where such activities are required to assist a disabled student in benefitting from special education. 20 U.S.C. § 1401(a)(17) (1988).

Congress imposed explicit procedural safeguards and requirements in the IDEA. 20 U.S.C. § 1415 (1994). For instance, parents are entitled to be notified in writing of changes the school district proposes or refuses to make in their child’s educational program. 20 U.S.C. § 1415(b)(1)(C) (1994). Also, parents have the right to examine their child’s educational records and obtain an independent evaluation of their child. 20 U.S.C. § 1415(b)(1)(A) (1994). But the primary procedural safeguard employed by the IDEA is the directive that parents of disabled students have the right to seek review of any decision concerning their children’s education. Koopman v. Fremont Cty. School Dist. No. 1 (Wyo. 1996), 911 P.2d 1049, 1052 (citing Hope v. Cortines (E.D.N.Y. 1995), 872 F.Supp. 14, 16). This right encompasses an opportunity to bring complaints “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(1)(E) (1994). Moreover, the IDEA contains an express requirement that administrative remedies be exhausted:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 790 et seq.], or other Federal statutes protecting the rights of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(f) (1994).

Montana has implemented the IDEA through Title 20, chapter 7, part 4 of the Montana Code Annotated and has established procedures in accordance with the IDEA in §§ 10.16.2401 et seq., ARM. Montana’s regulations also provide that a complainant may bring a civil action in district court only after exhausting the procedures set forth in the administrative rules. Section 10.16.2417(5), ARM.

In the case before us, the Shieldses failed to appeal the decision of the school district to the State Superintendent of Public Instruction. Thus, the Shieldses failed to exhaust the administrative remedies under the IDEA and Montana’s administrative rules prior to bringing their action in District Court. The Shieldses contend, however, that they were not required to exhaust the administrative procedures under the IDEA because they were seeking compensatory damages under 42 U.S.C. § 1983 and the IDEA provides only injunctive or other prospective relief.

In Koopman v. Fremont Cty. School Dist. No. 1 (Wyo. 1996), 911 P.2d 1049, a special education student and his parents made similar contentions regarding the relief available under the IDEA and the futility of exhausting the administrative requirements thereof. The complainants in Koopman brought a cause of action against school officials, the school district, and its board of trustees under the Rehabilitation Act and the Americans with Disabilities Act alleging that the student was denied the opportunity to participate in various extracurricular activities because of his disabilities. The Wyoming Supreme Court held that because § 1415(b)(1)(E) of the IDEA provides that parents may file complaints for “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” the relief sought by complainants was also obtainable under the IDEA, thus exhaustion under that Act was required before complainants could pursue their claims in a court of law. Koopman, 911 P.2d at 1053.

In like manner, in the case before us, the Shieldses sought relief, for the failure of Defendants to properly identify, evaluate and classify Nathan as a disabled student thereby denying him his right to an appropriate education. Thus, the Shieldses’ claim could have been brought under the IDEA and, pursuant to 20 U.S.C. § 1415(f), since relief was available under the IDEA, the Shieldses had to exhaust the IDEA administrative procedures before instituting a civil action in district court. “[P]arties cannot circumvent the IDEA’S exhaustion requirements by asserting claims under other laws while they deliberately avoid asserting a cognizable claim under the IDEA.” Koopman, 911 P.2d at 1053 (citing Hope v. Cortines (E.D.N.Y. 1995), 872 F.Supp. 14, 17).

The Shieldses contend that exhaustion of the administrative requirements under the IDEA would have been futile in their case as Nathan is no longer enrolled in the school where the alleged discrimination occurred. The complainants in Koopman made a similar argument, however, the Wyoming Supreme Court concluded that if the complainants had made a timely effort to pursue their administrative remedies, the controversy could well have been resolved before they lost all the educational benefits from the various activities that had been denied the student. Koopman, 911 P.2d at 1054. So too, in the instant case, the Shieldses should have made a timely effort to appeal the decision of the Board to the State Superintendent of Public Instruction. As noted in Koopman:

The IDEA’S procedural scheme contemplates exactly this type of situation by emphasizing the necessity of seeking the expertise of the education professionals through the administrative appeals process at the first hint of a controversy between the parents and the educational entity. [Citation omitted.]
Even if, as Koopman suggests, the school could no longer replace the educational experiences which he missed as a result of the appellees’ actions, we would still need the record from the administrative proceeding in order to decide whether Koopman was entitled to be compensated under the facts of this case. This type of case should be decided by the courts “only after a serious and thorough examination of the records of the proceedings undertaken by education professionals and the insights of those experts into the problems of the subject child.”

Koopman, 911 P.2d at 1054 (quoting Carey v. Maine School Administrative Dist. No. 17 (D.Me. 1990), 754 F.Supp. 906, 923).

Accordingly, we hold that the District Court did not err in dismissing the Shieldses’ claims on the basis that they failed to exhaust the available administrative procedures under the IDEA.

Issue 4.

Whether the District Court erred in dismissing the Shieldses’ claims on the basis that they failed to exhaust the available administrative procedures under the MHRA.

The MHRA, Title 49 of the Montana Code Annotated, provides in pertinent part:

It is an unlawful discriminatory practice for an educational institution:
(1) to exclude, expel, limit, or otherwise discriminate against... an individual enrolled as a student in the terms, conditions, or privileges of the institution because of race, creed, religion, sex, marital status, color, age, physical disability ... or because of mental disability, unless based on reasonable grounds [.]

Section 49-2-307, MCA. To assert a claim of unlawful discrimination, an individual must file a complaint with the Montana Human Rights Commission, stating the name and address of the educational institution alleged to have engaged in the discriminatory practice and the particulars thereof. Section 49-2-501(1), MCA. No action may be filed in district court until the procedures of the Montana Human Rights Commission have been exhausted. Section 49-2-509(7), MCA.

In their First Amended Complaint, the Shieldses alleged that they were unlawfully discriminated against by certain Defendants because of Nathan’s disabilities. They noted in their complaint that they did not pursue their discrimination claims with the Montana Human Rights Commission as required by § 49-2-509(7), MCA, prior to filing the complaint in District Court. The Shieldses contend on appeal that their claims are state tort actions that do not fall within the MHRA, thus they were under no obligation to exhaust administrative remedies.

In Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, the plaintiff made the same argument regarding her allegations of sexual harassment by her employer. We ruled in Harrison that although her employer’s alleged acts provided grounds for various tort claims, the gravamen of plaintiff’s complaint was sexual harassment and, under the MHRA, sexual harassment is sexual discrimination. Harrison, 797 P.2d at 205. We noted in that case that when the legislature enacted § 49-2-509(7), MCA, it expressed its intent that the Montana Human Rights Commission provide the exclusive remedy for illegal discrimination. Thus, we held in Harrison that pursuant to § 49-2-509(7), MCA, the MHRA provided the exclusive remedy for plaintiff’s claims. Harrison, 797 P.2d at 205. See also Bruner v. Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901; Hash v. U.S. West Communications Services (1994), 268 Mont. 326, 886 P.2d 442.

So too, the gravamen of the Shieldses’ complaint is discrimination. Their First Amended Complaint is replete with allegations that they were unlawfully discriminated against by certain Defendants because of Nathan’s disabilities. Specifically, they alleged that Nathan was discriminated against when he was denied participation in a school sponsored ski trip; when he was humiliated by one of his teachers for not being able to participate in the ski trip; when he was repeatedly referred to by this same teacher as “Casper” because of his pale complexion; and when the school failed to classify him as a disabled student.

Section 49-2-509(7), MCA(1995), provides:

The provisions of this chapter establish the exclusive remedy for acts constituting an alleged violation of this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. No other claim or request for relief based upon such acts may be entertained by a district court other than by the procedures specified in this chapter.

Hence, under the MHRA, the Shieldses were required to file a written, verified complaint with the Montana Human Rights Commission. Section 49-2-501, MCA. Only after availing themselves of the administrative procedures under the MHRA could they then bring their claim in district court. Section 49-2-509(7), MCA; Harrison, 797 P.2d at 205.

Accordingly, we hold that the District Court did not err in dismissing the Shieldses’ claims on the basis that they failed to exhaust available administrative procedures under the MHRA.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and REGNIER concur.

      . This Court has again amended Rule 5, M.R.App.P., effective October 1,1997. See Amending Rule 5 of Montana Rules of Appellate Procedure (Order of June 26, 1997), 54 St.Rep. 633.

      . This Court has again amended Rule 5, M.R.App.R, effective October 1,1997. See Amending Rule 5 of Montana Rules of Appellate Procedure (Order of June 26, 1997), 54 St.Rep. 633.

      . Setion 49-2-509(7), MCA, has since been amended by the 1997 Montana Legislature. 1997 Mont.Laws SB 350 § 13. However, subsection (7) still requires that administrative procedures under the MHRAbe exhausted before an action may be filed in district court.


author: JUSTICE LEAPHART JUSTICE GRAY,

text:
    MONTANA DEPARTMENT OF ADMINISTRATION, Petitioner and Respondent, v. LAURIE EKANGER, Commissioner of Labor and Industry, Montana Department of Labor and Industry; THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA-MONTANA DISTRICT COUNCIL OF LABORERS; INTERNATIONAL UNION OF OPERATING ENGINEERS; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; EDSALL CONSTRUCTION COMPANY; and BERNARD CONSTRUCTION COMPANY, Respondents and Appellants.
    No. 96-488.
    Submitted on Briefs March 27, 1997.
    Decided August 7, 1997.
    54 St.Rep. 821. 943 P.2d 994.
    284 Mont. 151.

      For Appellants: Daniel B. McGregor, Department of Labor and Industry, Helena; Karl J. Englund, Attorney at Law, Missoula.
    For Respondent: Kelly A. Jenkins, Department of Administration, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Laurie Ekanger (Ekanger), Commissioner of Labor and Industry of the State of Montana, appeals from the First Judicial District Court’s order which reversed the Department of Labor’s order awarding “heavy” and “highway” pay rates to workers constructing underground tunnels at Montana State University (MSU). We reverse the decision of the District Court and remand for determination of appropriate compensation consistent with “heavy’ and “highway’ rates under the Little Davis-Bacon Act, §§ 18-2-401 et seq., MCA.

We address the following issue on appeal:

Are the Edsall and Barnard tunnels “heavy” construction projects

under Montana’s Little Davis-Bacon Act, § 18-2-401(5), MCA?

BACKGROUND

Montana law divides prevailing wage classifications for laborers into three categories: heavy construction, highway construction and other types of construction (i.e., building). Wages for heavy and highway workers are set at one rate in Montana and wages for “other” (building) workers are set at a second rate. Sections 18-2-401(5) and (7), MCA, provide:

(5) “Heavy and highway construction wage rates” means wage rates, including fringe benefits for health and welfare and pension contributions, that meet the requirements of the Employee Retirement Income Security Act of 1974 and other bona fide programs approved by the United States department of labor and travel allowance that are determined and established statewide for heavy and highway construction projects, such as alteration or repair of roads, streets, highways, alleys, runways, trails, parking areas, or utility rights-of-way.
(7) (a) “Standard prevailing rate of wages” or “standard prevailing wage” means:
(i) the heavy and highway construction wage rates applicable to heavy and highway construction projects; or
(ii) those wages, other than heavy and highway construction wages, including fringe benefits for health and welfare and pension contributions, that meet the requirements of the Employee Retirement Security Act of 1974 and other bona fide programs approved by the United States department of labor and travel allowance that are paid in the district by other contractors for work of a similar character performed in that district by each craft, classification, or type of worker needed to complete a contract under this part. In each district, the standard prevailing rate of wages is a weighted average wage rate based on all of the hours worked on work of a similar character performed in the district.

The instant case involves the appropriate prevailing wage for laborers working on two separate construction projects at MSU. Specifically, this case involves a dispute as to whether construction workers should receive the “heavy” construction wage which is generally $3.00 to $4.00 per hour greater than the building construction wage rate. The first of these projects was formally known as “Underground Utility Phase II, Montana State University.” For purposes of brevity, this project will be referred to as the “Barnard Tunnel” as it was eventually constructed by Barnard Construction. The second project was officially known as the “Engineering/Physical Sciences Building, Utility Tunnel.” This project will be referred to as the “Edsall Tunnel” as Edsall Construction Company contracted to build this second tunnel.

At MSU, many of the buildings are heated with steam from a central heating plant. Steam is carried in underground pipelines to buildings connected to the plant. Both the Edsall and Barnard Tunnels were constructed to house steam and condensate pipes in order to protect them from degradation and make them more accessible for maintenance and repair. The Edsall and Barnard Tunnels are of similar design and are entirely underground. Inside both tunnels are metal frames used to support the steam and condensate pipelines and electrical overhead lights. Neither tunnel has a heating or cooling system, windows, flooring or internal finished walls or any plumbing, plumbing system or bathrooms.

While the Edsall and Barnard Tunnels were being constructed, the Labor Standards Bureau of the Montana Department of Labor and Industry (Department) received an inquiry from Laborers’ International Union of North America, Montana District Council of Laborers (Laborers) concerning the appropriate wage rate for construction on the tunnels. In addition, the Department received a number of complaints from individual construction workers employed on these two projects. Following an investigation, the Department determined that these projects were not conventional buildings and, therefore, should have been classified as “heavy” construction projects for purposes of determining the appropriate prevailing wage. The Department made the following finding:

[A] review of the project’s nature distinguishes it from a building. Few, if any, buildings in Montana are entirely underground, and in the case of the Barnard portion extend over approximately 600 yards through a major portion of the university campus. Few, if any buildings, lack windows, any type of conventional roofing, living or storage space, internal wood or steel framing (other than the utility support structures), doors, plumbing, and heating or cooling systems. Few, if any buildings, have an internal drainage system (gutters) in case of flooding through excess ground water or sump pump failure. Few, if any buildings, are constructed entirely of concrete and reinforcing steel. Indeed, few, if any buildings, are built entirely within the confines of a continuous trench running approximately 600 yards in length, an estimated 60 feet in width at ground level .... This is not a building in any conventional sense of the word.

After coming to the above conclusion, the Department found the contracting agency, the Architecture and Engineering Division of the Montana Department of Administration (AEDMDA), was responsible for back pay and future pay resulting from the wage differences. AEDMDA filed an appeal of the Department’s determination and a contested case hearing was held before a Department hearing officer Joseph V. Maronick (Maronick). Maronick entered findings of fact, conclusions of law and an order which affirmed the Department’s determination and directed AEDMDA to compensate construction workers at the “heavy construction” wage rate. AEDMDA appealed this decision to the District Court.

After each party briefed and orally argued this matter, the District Court issued an order reversing the Department’s determination. The District Court held that the Department had misapplied Montana’s Little Davis-Bacon Act, § 18-2-401(7), MCA, and that its decision to award “heavy construction” wages was erroneous. Ekanger, in her position as Commissioner of the Department of Labor and Industry, appeals from the District Court’s order.

DISCUSSION

Are the Edsall and Barnard tunnels “heavy” construction projects under Montana’s Little Davis-Bacon Act, § 18-2-401(5), MCA?

We are called upon to review the District Court’s application of the Little Davis-Bacon Act to the undisputed facts of this case. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444; 898 P.2d 672; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

Montana’s Little Davis-Bacon Act defines three categories of wage rates: heavy construction, highway construction and “other” types of construction. Sections 18-2-401(5) and (7), MCA. The District Court held that this statute was unambiguous and explained that the Barnard and Edsall tunnel projects did not qualify as “heavy or highway” construction under § 18-2-401(5), MCA, which defines “heavy and highway construction wage rates” as applying to: projects, such as alteration or repair of roads, streets, highways, alleys, runways, trails, parking areas, or utility rights-of-way.

In interpreting the above statute, the court reasoned that, with the exception of “utility rights-of-way,” the examples given all relate to roads and highways. The projects in question were obviously not in the nature of a road or highway. The appellant, however, argues that the projects are “utility rights-of-way.” In response to this argument, the court noted that, although the term “utility rights-of-way” is not defined in Title 18, it is defined in Title 60 as:

“Right of wa/’ is a general term denoting land, property, or any interest in land or property, usually in a strip, acquired for or devoted to highway purposes.

Section 60-1-103(23), MCA. The court also relied on the definition of “right of way’ in BLACKS LAW DICTIONARY 1326 (6th ed. 1990) as,

a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and, when so used, the term refers to the land itself, not the right of passage over it.

Based upon these definitions of “right of way,” the court concluded: “Simply stated, a ‘right of way’ is only an interest in the land or the use of the land, and does not include utilities or other projects located on it.” Since the tunnel projects were not road related and were not “utility rights-of-way” (i.e. interests in land), the court concluded that the tunnels “do not fit within any of the enumerated examples” of heavy or highway construction. We determine that the District Court’s use of this definition of “utility rights-of-way” in the context of the Little Davis-Bacon Act is erroneous. It makes no sense to define “utility rights-of-way,” as that term is used in § 18-2-401(5), MCA, as “only an interest in land.” The relevant portion of § 18-2-401(5), MCA, includes “utility rights-of-way’ in its examples of “heavy and highway constructionpro/ecis.” (Emphasis added.) An “interest in land” cannot be considered as an example of a “project” in any sense of the word. An interest in land exists by virtue of law; it is not “constructed” through wage labor. As used in § 18-2-401(5), MCA’s list of projects, “utility rights-of-way’ clearly denotes something that is built or constructed through labor. Furthermore, a utility right-of-way is something other than a road or a highway. The District Court erred in concluding that § 18-2-401(5), MCA, has application only to matters related to roads or highways. It applies as well to projects in which “utility rights-of-way’ are constructed through labor.

In construing any statute, the goal is to ascertain and implement the legislature’s intent. Burritt v. City of Butte (1973), 161 Mont. 530, 508 P.2d 563. Where the language of a statute is plain and unambiguous, there is nothing left for a court to construe. Keller v. Smith (1976), 170 Mont. 399, 553 P.2d 1002; Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660. Section 18-2-401(5), MCA, requires heavy and highway construction rates for projects:

such as alteration or repair of roads, streets, highways, alleys, runways, trails, parking areas, or utility rights-of-way.

The use of the phrase “such as” in listing projects requiring heavy construction wage rates reflects an intent that the list be inclusive rather than exclusive. Section 18-2-401(5), MCA, is unambiguous in its inclusion of “utility rights-of-way’ in the heavy and highway project classification.

The Edsall and Barnard Tunnels are “utility rights-of-way” projects in which tunnels were constructed to house steam and condensate pipes in a protected underground corridor to provide heat to buildings on the MSU campus. As such, these projects are among the enumerated projects considered as “heavy construction” under § 18-2-401(5), MCA.

In summary, we hold that the Little Davis-Bacon Act heavy and highway construction wage rate clearly is not restricted to projects which are road or highway related. Rather, this wage rate has application to “heavy” projects involving utility rights-of-way such as the Edsall and Barnard Tunnels. The decision of the District Court is reversed and the matter is remanded for determination of appropriate back pay.

JUSTICES NELSON, HUNT and TRIEWEILER concur.

JUSTICE GRAY,

specially concurring.

I concur in the result reached by the Court, namely, that the construction workers on the Edsall and Barnard Tunnel projects are entitled to be paid at heavy and highway construction wage rates. I do not agree with all that is said by the Court in reaching that result or with the Court’s approach to the statutory definition of “heavy and highway construction wage rates.”

I do agree with the Court that the “such as” language in the § 18-2-401(5), MCA, listing of projects requiring heavy and highway construction wage rates reflects a legislative intent that the list be inclusive rather than exclusive. Stated differently, the “such as” list is merely illustrative of the types of projects properly designated “heavy and highway construction” projects. That being the case, it is unnecessary for the Court to “force feed” the Edsall and Barnard Tunnel projects into one of the actual categories listed in § 18-2-401(5), MCA, and that approach results in a somewhat strained interpretation that these projects are “utility rights of way.”

Given the inclusive rather than exclusive listing contained in § 18-2-401(5), MCA, all that is necessary to conclude that the workers in this case are entitled to heavy and highway construction wage rates is to establish that the projects are of the same type or nature as those listed in the statute. Here, that is a relatively easy task.

The projects involved the demolition of existing, and construction of new, sidewalks and roads. Thus, in the language of the statute, they can be likened to heavy and highway construction projects involving “alteration or repair of roads, streets ... [or] trails....” More importantly, they involved underground tunnel work much more similar to utility pipeline and power line proj ects than to conventional building construction projects for which heavy and highway construction wage rates are not required. In addition, of course, the formal names of the Edsall and Barnard Tunnel projects — “Engineering/Physical Sciences Building, Utility Tunnel” and “Underground Utility Phase II, Montana State University,” respectively — reflect that the projects were utility-type projects. That the projects were not located on utility rights of way does not change the nature of the projects.

I would conclude that the Edsall and Barnard Tunnel projects are of the same type and nature as the projects listed in § 18-2-401(5), MCA, for which heavy and highway construction wage rates are required. For that reason, I join the Court in reversing the District Court.


author: CHIEF JUSTICE TURNAGE

text:
    WALLACE E. SMALL and ANNELL SMALL, Plaintiffs and Respondents, v. H. KERRY GOOD, III, and STACY B. GOOD, Defendants and Appellants.
    Nos. 96-485, 96-486.
    Submitted on Briefs June 12, 1997.
    Decided August 12, 1997.
    54 St.Rep. 825. 943 P.2d 1258.
    284 Mont. 159.

      For Appellants: Henry K. Good III, and Stacy B. Good (pro se), Swan Valley.
    For Respondent: Kathleen O’Rourke-Mullins, Poison.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kerry and Stacy Good appeal from the findings, conclusions, and order of the Fourth Judicial District Court, Missoula County, quieting title to Wallace and Annell Small’s property and awarding the Smalls attorney fees and costs. We affirm in part and reverse in part.

The Goods raise the following claims as issues on appeal:

1. The Goods no longer have access for year-round services which they enjoyed from 1979 to 1996.

2. The District Court doubted that the Goods used the road between 1980 and 1993.

3. The District Court unconstitutionally took the easement.

4. The District Court erred when it awarded attorney fees and costs.

BACKGROUND

In 1979, Henry and Jeanne Good (Goods, Sr.) sold property located along Lindberg Lake, Missoula County, Montana, to their son, H. Kerry Good, III, and his wife, Stacy. The Goods, Sr., historically used the “brown road” to access their property. The Goods, Sr., retained an adjoining lot, which the Smalls purchased in 1980. At about the same time, the Smalls constructed the “purple road” to access their lot. The area currently in dispute, the “red road,” lies between a parking lot on the Smalls’ property and the boundary between the Smalls’ and the Goods’ lots.

Before 1980, guests of the Goods, Sr., parked north of the red road, which resembled a wide forest path, and walked on it to access the residence of the Goods, Sr. When the Goods, Sr., conveyed their lot to the Goods, the deed included “an easement for ingress and egress over existing roads.” In 1993, the Goods began to travel over the red road and their use became noticeable to the Smalls. The Smalls sued to quiet title. The Goods counterclaimed to quiet title and asserted as an affirmative defense that they had established an easement either by grant or prescription.

At trial, Jeanne Good testified the red road was not an existing road in 1979. The Smalls testified they never observed the Goods traveling over the red road in their vehicles before 1993. The District Court concluded that the red road did not exist as an access to the Goods’ residence in 1979, and it was not conveyed to them as an easement by grant. The court also concluded that the Goods had not traveled along the red road long enough or in such a manner to establish a prescriptive easement. The court quieted title in favor of the Smalls and awarded them attorney fees and costs.

The Goods appeal.

DISCUSSION

1. The Goods no longer have access for year-round services which they enjoyed from 1989 to 1996.

2. The District Court doubted that the Goods used the road between 1980 and 1993.

We consolidate these two issues and treat them as an argument that the District Court’s findings are not supported by the evidence. This Court reviews a district court’s findings of fact to determine whether they are clearly erroneous. Amerimont, Inc. v. Gannett (1996), 278 Mont. 314, 318, 924 P.2d 1326, 1329. We determine whether a finding is clearly erroneous by using the three-part test set forth in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The DeSaye test requires a review of the record to determine whether the findings are supported by substantial evidence; to determine whether the district court misapprehended the effect of the evidence; and to determine whether a review of the record leaves this Court with a firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287.

The Goods argue that the District Court erred because it accepted the Smalls’ version of the facts rather than their own. In nonjury trials, witness credibility and the weight of their testimony is a matter properly left to the discretion of the district court. Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. Jeanne Good was clear that, when the Goods, Sr., sold their property to the Goods, the conveyance included existing roads. In 1979, the red road was not an existing road.

After a thorough review of the trial record, we conclude there is sufficient evidence to support the court’s findings and that evidence has not been misapprehended; nor do we have any conviction that a mistake has been made. We hold that the District Court’s findings are not clearly erroneous.

3. The District Court unconstitutionally took the easement.

The Goods argue the District Court unconstitutionally took their property because the court did not find an easement in their favor. They provide no authority for their argument. An appellant carries the burden of establishing error by the trial court. Moreover, Rule 23, M.R.App.R, requires the appellant to cite authority which supports the position being advanced on appeal. The Goods have failed to do so. We decline to further address this issue on appeal.

4. Did the District Court err when it awarded attorney fees and costs?

The Goods argue that the District Court’s award of attorney fees is beyond the scope of that allowed by law or equity. The Smalls respond that they were the prevailing party, the District Court did not abuse its discretion, and the Goods did not frame the award of attorney fees and costs as an issue for appeal.

The record reveals that the Goods raised the issue of attorney fees in their motion for a new trial. Because the issue was raised in a motion presented to and ruled on by the District Court, we conclude that it is properly before us on appeal. See Hughes v. Blankenship (1994), 266 Mont. 150, 156, 879 P.2d 685, 688.

A. Attorney fees.

In its findings, conclusions, and order, the District Court relied on Martin v. Randono (1981), 191 Mont. 266, 623 P.2d 959, and Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114, which permit a court, through its equity power, to award attorney fees to make a totally innocent party whole. After receiving an affidavit of attorney fees and costs, the District Court ordered the Goods to pay the Smalls $8,536 in attorney fees and $759 in costs.

In Randono, plaintiffs, as the party in possession of real property, sued to quiet title. The defendants prevailed on their counterclaim and requested attorney fees pursuant to § 27-1-318, MCA. We affirmed the district court’s refusal to award attorney fees stating: pursuant to section 27-1-318, MCA, or in the alternative such fees should be awarded pursuant to the equitable principle espoused in Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. We decline to follow either contention in this case.

We turn now to defendants’ claim for attorney fees. The general rule is that in absence of statute or contract, attorney fees will not be awarded. Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 535P.2d 1273; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608.
Defendants contend that attorney fees should be construed as “. . . costs, if any, of recovering the possession [of real property],”

The rule is well established in Montana. The statutory term “costs” does not include attorney fees. Higgins v. Montana Hotel Corp. (1979), [181 Mont. 149] 592 P.2d 930.

As in Russell Rlty. Co., supra, this Court finds no abuse of discretion by the lower court in not awarding attorney fees to the defendants.

Randono, 623 P.2d at 962.

This Court affirmed the trial court’s decision not to award attorney fees, emphasizing that attorney fees may be awarded only in “some isolated cases.” Randono, 623 P.2d at 962. Furthermore, the Court explained that the statutory term “costs” in § 27-1-318, MCA, does not include attorney fees. Randono, 623 P.2d at 962. We conclude that the District Court’s reliance on Randono to make an equitable award of attorney fees is misguided.

In Foy, Eggan and Foy were passengers in a car driven by Gilreath and struck by Anderson. Eggan sustained minor injuries, but never presented or contemplated a claim for damages against Anderson. Farmers Insurance Exchange, Anderson’s insurer, refused coverage and would not defend the actions which Foy and Gilreath brought against Anderson. Anderson filed a declaratory action against Farmers, its agent, the State Department of Highways, and Eggan as third parties, alleging wrongfully and without legal basis that the State and Eggan had asserted claims against him.

We held that, because Eggan asserted no claim against Anderson and was forced to hire an attorney to argue her motion to dismiss through no fault of her own, she would not be made whole without an award of attorney fees. Foy, 580 P.2d at 117. Foy is a narrow exception and applies only where the action into which the prevailing party has been forced is utterly without merit or frivolous. Goodover v. Lindey’s Inc. (1992), 255 Mont. 430, 447, 843 P.2d 765, 776, citing State ex rel. Wilson v. Dept. of Natural Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772.

“This Court has consistently adhered to the principle that in the absence of some special agreement between the parties or statutory authorization attorney’s fees are not recoverable by the successful litigant.” Nickles v. Barnes (1969), 153 Mont. 113,119-20,454 P.2d 608, 611-12, citing Kintner v. Harr (1965), 146 Mont. 461, 408 P.2d 487. The Smalls present neither a statutory nor a contractual basis for an award of their attorney fees. Therefore, we proceed to determine whether an exception applies.

This Court has infrequently invoked the equitable exception to the general rule which prohibits an award of attorney fees absent a contract or statute. See Foy, 176 Mont. 507, 580 P.2d 114; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363; Stickney v. State, County of Missoula (1981), 195 Mont. 415, 418, 636 P.2d 860, 862. These cases share unique fact situations where a party was forced into a frivolous lawsuit and had to incur attorney fees to dismiss the claim.

The Smalls’ position as plaintiffs is entirely different from the third-party defendant’s position in Foy. The Smalls retained an attorney to commence a quiet title action against the Goods. The Smalls were not forced to hire an attorney to help them defend against wholly meritless litigation initiated by another party as in Foy. The Smalls freely chose to hire an attorney to begin a legal action against the Goods. Foy is clearly distinguishable on these facts and is not controlling here. We hold that the District Court erred in awarding attorney fees to the Smalls.

We note that in cases of egregious violation or abuse of rules or procedure, district courts possess the authority to consider appropriate sanctions. Rule 11, M.R.Civ.P., provides in relevant part:

If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. [Emphasis supplied.]

Rule 54(d), M.R.Civ.P, provides courts the authority to impose costs. It states:

Except when express provision therefor is made either in a statute of the state of Montana or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs;

In citing these rules, we express no opinion as to their applicability to the facts of this case. Rather, we note them as authority for a district court to impose costs and sanctions which may arise under the unique facts of a case.

B. Costs.

The District Court ordered the Goods to pay $759 in costs associated with witnesses, copies, photographs, and filing fees. Section 25-10-201, MCA, provides which costs a party may include in his bill of costs:

(1) the legal fees of witnesses, including mileage, or referees and other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publications when publication is directed;
(4) the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial;
(5) the legal fees paid stenographers for per diem or for copies;
(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;
(7) the reasonable expenses of making a transcript for the supreme court;
(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and
(9) such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.

The costs ordered by the District Court are allowable pursuant to § 25-10-201, MCA. We hold that the District Court did not err when it awarded the Smalls $759 in costs.

Affirmed on Issues 1 through 3 and the award of costs; reversed on the award of attorney fees.

JUSTICES GRAY, LEAPHART, NELSON and REGNIER concur.


author: JUSTICE TRIEWEILER

text:
    DALE THOMAS KLOCK, Plaintiff and Appellant, v. THE TOWN OF CASCADE, MONTANA; GORDON BOOTH; LAURI CARY; ROBERT NICHOLSON; MEDRIC BRUNEAU; JACK WHITAKER; ROY AAFEDT; PEGGY BELTRONE; BARRY MICHELOTTI; JOHN STRANDELL; BRANDT LIGHT; JULIE MACEK; MURRY MOORE; STOCKMENS BANK; ROBERT VERMILLION; and JOHN DOES and JANE DOES, presently unknown, Defendants and Respondents.
    No. 96-524.
    Submitted on Briefs June 5, 1997.
    Decided August 12, 1997.
    54 St.Rep. 829. 943 P.2d 1262.
    284 Mont. 167.

      For Appellant: John Keith, Attorney at Law, Great Falls.
    For Respondents: Kevin C. Meek; Davis, Hatley, Haffeman & Tighe; Great Falls (for Town of Cascade, Booth, Cary, Nicholson, Bruneau, and Vermillion); Neil E. Ugrin; Ugrin, Alexander, Zadick & Higgins; Great Falls (for Whitaker, Aafedt, Beltrone, Michelotti, Strandell, Light, and Macek); Guy W. Rogers and Tiffany B. Lonnevik; Brown, Gerbase, Cebull, Fulton, Harman & Ross; Billings (for Moore and Stockmens Bank).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Dale Thomas Klock, filed a complaint against the respondents, the Town of Cascade, Montana, Gordon Booth, Lauri Cary, Robert Nicholson, Medric Bruneau, Robert Vermillion, Jack Whitaker, Roy Aafedt, Peggy Beltrone, Barry Michelotti, John Strandell, Brandt Light, Julie Macek, Murry Moore, and Stockmens Bank, in the District Court for the Eighth Judicial District in Cascade County. After a hearing, the District Court: (1) denied Klock’s motion for entry of default judgment; (2) granted summary judgment in favor of the respondents; and (3) awarded attorney fees to the respondents, pursuant to 42 U.S.C. § 1988. Klock appeals. We affirm the judgment of the District Court.

The following issues are presented on appeal:

1. Did the District Court err when it denied Klock’s motion for entry of default judgment?

2. Did the District Court err when it granted summary judgment in favor of the respondents?

3. Did the District Court err when it awarded attorney fees to the respondents, pursuant to 42 U.S.C. § 1988?

FACTUAL BACKGROUND

In February 1995, Murry Moore, president of Stockmens Bank, contacted the Federal Bureau of Investigation (FBI), the Federal Reserve Bank (FRB), and the Cascade County Sheriff’s Office and informed them that Dale Thomas Klock, in his official capacity as Mayor of Cascade, deposited $20 million in the form of money orders into the Town of Cascade’s bank account. Each money order stated that it was payable at Norwest Bank, Butte, Montana, through Account No. 8520799406. In the past, that account belonged to the United States District Court for the District of Montana. It was closed, however, due to attempts by “Freemen” to use its funds. In September 1994, Stockmens Bank and other Montana banks had been put on notice of these types of fraudulent transactions by a special notice from the FRB, and had been requested to contract the FBI upon receipt of such a transaction.

Robert Vermillion, general counsel for the Town of Cascade, learned of Klock’s attempt to deposit the fraudulent money orders when he was contacted by Cascade Town Council member Lauri Cary. Due to his concern that the Town of Cascade could be exposed to civil liability, Vermillion contacted Klock and unsuccessfully attempted to gather information about the money orders. He also contacted Moore, who told him that the money orders were fraudulent.

On February 27, 1995, Vermillion prepared a memo in which he memorialized the substance of his conversations with Cary and Klock. He also sent a letter to Klock in which he advised him that, because he was the Town of Cascade’s attorney, a potential conflict of interest could preclude him from giving legal advice to Klock regarding the money orders. Vermillion sent additional copies of that letter to Town of Cascade Council Members Medric Bruneau and Gordon Booth.

Julie Macek, Deputy County Attorney for Cascade County, investigated the matter. On March 6, 1995, she prepared an information with which to charge Klock with criminal syndicalism and official misconduct, and an affidavit in support. On that same day, Macek and Brandt Light, Cascade County Attorney, decided to issue a summons, and not a warrant, for Klock’s arrest.

On March 8,1995, Macek met with the Cascade County Attorney’s staff and informed them of the charges which she and Light had decided to file. On March 9,1995, a meeting was held at the Cascade County Commissioner’s Office. The following persons attended that meeting: Cascade Town Council members Lauri Cary and Robert Nicholson; Cascade County Commissioners Jack Whitaker, Roy Aafedt, and Peggy Beltrone; Cascade County Sheriff Barry Michelotti and Undersheriff John Strandell; and County Attorney Brandt Light. The purpose of the meeting was for Light to advise the attendees that the Cascade County Attorney’s Office had decided to charge Klock with criminal syndicalism and official misconduct. The attendees also discussed personal and public safety issues.

On that same day, the information was signed by the District Court and filed with the Clerk. Klock was charged with one count of misdemeanor official misconduct and three counts of felony bad check issuance. He was served shortly thereafter. Following the March 9, 1995, meeting, Council members Cary and Nicholson discussed whether Klock should be suspended as mayor pending the outcome of the criminal charges. They personally agreed that the Town’s best interests would be served by a suspension.

They also expressed concern with regard to the manner in which Klock or other Freemen might react to the suspension. Specifically, Cary was concerned that Klock or other Freemen might try to seize records from the Town Hall or otherwise impair the city government’s operations. On that basis, she raised the issue of changing the locks to the Town Hall. She contacted Council member Bruneau and he agreed that the locks should be changed. She called a locksmith and had the locks to the Town Hall changed.

On March 10,1995, a special meeting of the Cascade Town Council was held for the purpose of determining whether Klock should be suspended from his position as mayor. Notice of the hearing was posted at the Town Hall and at least three other locations. Approximately 100 to 150 people attended the meeting. During the meeting, all four members of the Town Council voted to suspend Klock from office pending the outcome of the criminal charges brought against him.

On August 21, 1995, Klock filed a complaint and request for injunctive relief in the District Court. The “County defendants” (Whitaker, Aafedt, Beltrone, Michelotti, Strandell, Light, and Macek) are identified in the counts which allege, inter alia, violation of civil rights, conspiracy to violate civil rights, and malicious prosecution/abuse of process. The “Town defendants” (the Town of Cascade, Booth, Cary, Nicholson, Bruneau, and Vermillion) are identified in the counts which allege, inter alia, wrongful removal from office, violation of civil rights, conspiracy to violate civil rights, malicious prosecution/abuse of process, and breach of fiduciary duty. Moore and Stockmens Bank are identified in the counts which allege, inter alia, breach of fiduciary duty, conversion, and violations of Montana’s Uniform Commercial Code.

The Bank filed an answer and denied all liability. The County defendants filed a motion to dismiss, which the District Court denied. Subsequently, the Bank, the County defendants, and the Town defendants (collectively, “the respondents”) each filed a motion for summary judgment, supported by affidavits.

Klock filed a motion for entry of default judgment against the Town defendants and the County defendants. After a hearing, the District Court: (1) denied Klock’s motion; and (2) granted summary judgment in favor of the respondents.

The respondents also moved the District Court to award them attorney fees, pursuant to 42 U.S.C. § 1988. After a hearing, the District Court granted that motion.

ISSUE 1

Did the District Court err when it denied Klock’s motion for entry of default judgment?

At the summary judgment hearing, Klock moved the District Court to enter default judgment against the County defendants and the Town defendants. The court, however, concluded that they made a timely appearance in the action and strenuously defended against Klock’s claims. On that basis, the court denied the motion.

On appeal, Klock contends that the District Court erred when it denied the motion for entry of default judgment. Specifically, he claims that the County defendants and the Town defendants failed to file an “answer” to the complaint. Therefore, he maintains that the court erred when it refused to enter default judgment against them.

The entry of default judgment is governed by Rule 55, M.R.Civ.R, which provides, in relevant part, that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” Rule 55(a), M.R.Civ.R (emphasis added).

After the County defendants’ motion to dismiss was deified, the County defendants and the Town defendants each filed a motion for summary judgment, pursuant to Rule 56, M.R.Civ.R We therefore conclude that at the time Klock filed a motion for entry of default judgment the County defendants and the Town defendants were, in fact, “otherwise defending]” as provided by Montana’s Rules of Civil Procedure.

Accordingly, we hold that the District Court did not err when it denied Block’s motion for entry of default judgment. That part of the District Court’s judgment is affirmed.

ISSUE 2

Did the District Court err when it granted summary judgment in favor of the respondents?

Summary judgment is governed by Rule 56, M.R.Civ.R, which provides, in relevant part, as follows:

The judgment sought shall be rendered forthwith if 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.

Rule 56(c), M.R.Civ.R

The purpose of summary judgment is to eliminate the burden and expense of unnecessary trials. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. This Court reviews an order which grants summary judgment de novo and applies the same criteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-10, 922 P.2d 1183, 1184. The party moving for summary judgment has the initial burden of showing the absence of any genuine issue of material fact in light of the substantive principles that entitle it to judgment as a matter of law. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 409, 797 P.2d 232, 234.

After the moving party has met its burden, the burden then shifts to the party opposing the motion to establish the existence of a genuine issue of material fact. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 104. The party opposing the motion must present facts of a substantial nature showing that genuine issues of material fact remain for trial. Wangen v. Kecskes (1993), 256 Mont. 165, 172, 845 P.2d 721, 726.

In order to meet its burden, the party opposing the motion must present substantial evidence, not mere denial, speculation, or conclusory statements. Sprunk, 252 Mont. at 463, 830 P.2d at 105. “The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicions.” Fleming v. Fleming Farms, Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105. Moreover, the opposing party cannot rest upon mere allegations in the pleadings, but “has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conclusory or speculative statements will not suffice.” Groshelle v. Reid (1995), 270 Mont. 443, 447, 893 P.2d 314, 316.

In response to Klock’s complaint, the Bank, the Town defendants, and the County defendants each filed a motion for summary judgment. After a hearing, the District Court made the following conclusions:

In this case [the respondents] meet their burden of showing that no issues of material fact exist by supplying the Court with the affidavits. Because [they] have met their burden, [Klock] must present material and substantial evidence raising disputed material facts. [He] failed to provide the Court with material substantial evidence of disputed material facts. Instead, [he] makes conclusory or speculative statements to raise a genuine issue of material fact. Therefore, after considering all reasonable inferences from the evidence in [his] favor, the Court determines no genuine issue of material facts exist.

On that basis, the District Court granted summary judgment in favor of the respondents with regard to all of Klock’s claims.

On appeal, Klock contends that the District Court erred when it granted summary judgment in favor of the respondents. Specifically, he claims that genuine issues of material fact exist and, therefore, that summary judgment is inappropriate.

After a review of the record, we conclude that Klock has failed to establish a genuine issue of material fact with regard to any of his claims. In fact, the record is devoid of any evidence to contradict the respondents’ affidavits submitted in support of their respective motions for summary judgment. Rather, Klock relies on speculative and conclusory statements which are not directly supported by evidence contained within the record. For example, the “statement of facts” in his appellate brief does not refer to affidavits, deposition testimony, discovery responses, or any evidence in the record. Instead, it consists almost entirely of references to oral arguments made by his counsel at the summary judgment hearing.

Accordingly, we hold that the District Court did not err when it granted summary judgment in favor of the respondents. That part of the District Court’s judgment is affirmed.

ISSUE 3

Did the District Court err when it awarded attorney fees to the respondents, pursuant to 42 U.S.C. § 1988?

After the District Court entered summary judgment in their favor, the Bank, the County defendants, and the Town defendants each moved the court for an award of attorney fees, pursuant to 42 U.S.C. § 1988. After a hearing, the court granted those motions.

On appeal, Klock contends that the District Court erred when it awarded attorney fees to the respondents. Specifically, he maintains that: (1) his civil rights claims, made pursuant to 42 U.S.C. §§ 1983 and 1985, were not frivolous, meritless, or lacking foundation; (2) the amount of the fees awarded is unreasonable; and (3) “no basis whatsoever exists for the grant of attorney fees to [the Bank and Robert Vermillion] since the allegations regarding these defendant [sic] do not relate to civil rights violations.”

42 U.S.C. § 1988(b) provides, in relevant part, that “[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983 or 42 U.S.C. § 1985] ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.”

In Hughes v. Rowe (1980), 449 U.S. 5,101 S. Ct. 173, 66 L. Ed. 2d 163, the United States Supreme Court established the applicable standard for awarding attorney fees pursuant to 42 U.S.C. § 1988. The Court concluded that an award of attorney fees to a prevailing defendant is appropriate if the plaintiff’s civil rights claim is “merit-less in the sense that it is groundless or without foundation.” Hughes, 449 U.S. at 14, 101 S.Ct. at 178. Furthermore, it is well established that both the decision to award fees and the amount of the award are upheld absent an abuse of discretion. Wagner v. Empire Development Corp. (1987), 228 Mont. 370, 372, 743 P.2d 586, 587; Flowers v. Jefferson Hosp. Ass’n (8th Cir. 1995), 49 F.3d 391, 392.

We must first, therefore, decide whether the District Court abused its discretion when it awarded attorney fees to the respondents, pursuant to 42 U.S.C. § 1988. The court based its decision to award attorney fees on the following rationale:

[T]he Court examined all facts before it and found that [Block] did not support his [42 U.S.C. §§ 1983 & 1985] claims ... with substantial credible facts. In effect, this Court determined that [his] claims, unsupported by facts, were meritless and without foundation. Even at this late date in the proceedings, [he] is unable to provide the Court with credible evidence of the alleged civil rights violations.

We have already concluded, when we affirmed the District Court’s order granting summary judgment, that the record is devoid of any evidence which directly supports Block’s claims and that, instead, he relies on speculative and conclusory statements which find no support within the record. We therefore conclude that the District Court did not abuse its discretion when it awarded attorney fees to the respondents, pursuant to 42 U.S.C. § 1988.

Next, we must decide whether the amount of fees awarded by the District Court is reasonable. After a hearing and a review of the “affidavits of attorney fees” submitted by the respondents, the court made the following determinations:

In this case, reasonable fees are those fees required to defend against [Block’s] alleged civil rights violations. ... In using [its] discretion the Court determines that since [he] alleged eight counts, two of which were civil rights claims, [the respondents] are entitled to one-fourth or 25% of their attorney fees.

In essence, the District Court applied the ‘lodestar” approach, which involves multiplication of an attorney’s reasonable hourly rate times the reasonable number of hours spent on the litigation. Audit Serv., Inc. v. Frontier-West, Inc. (1992), 252 Mont. 142, 153, 827 P.2d 1242, 1250. In Ihler v. Chisholm (1993), 259 Mont. 240, 855 P.2d 1009, the prevailing party moved the District Court to award attorney fees pursuant to 42 U.S.C. § 1988. The court awarded attorney fees and employed the lodestar approach when it calculated the amount to be awarded.

On appeal, we upheld the court’s application of the lodestar approach and recognized that there is a “strong presumption” that an award of attorney fees calculated by the lodestar approach is a reasonable fee. Ihler, 259 Mont, at 245, 855 P.2d at 1012 (citing City of Burlington v. Dague (1992), 505 U.S. 557, 562, 112 S. Ct. 2638, 2641, 120 L. Ed. 2d 449, 456).

We therefore conclude that the District Court did not abuse its discretion when it employed the lodestar approach and awarded the respondents one-fourth or 25 percent of their total attorney fees.

Finally, Klock contends that the District Court erred when it awarded attorney fees to the Bank and Vermillion. Specifically, he maintains that “no basis whatsoever exists for the grant of attorney fees to [the Bank and Vermillion] since the allegations regarding these defendant [sic] do not relate to civil rights violations under Title 42 section 1983.”

The record, however, does not support Klock’s contention. Areview of the complaint, the transcript of the summary judgment hearing, and the District Court’s order granting summary judgment, establishes that the Bank and Vermillion were forced to defend Klock’s claim made pursuant to 42 U.S.C. § 1985, which alleges a conspiracy to violate his civil rights. We therefore conclude that the District Court did not err when it awarded attorney fees to the Bank and Vermillion.

Accordingly, we hold that the District Court did not err when it awarded attorney fees to the respondents pursuant to 42 U.S.C. § 1988.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, LEAPHART and REGNIER concur.