author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM H. TWEEDY, Defendant and Appellant.
    No. 95-580.
    Submitted on Briefs May 23, 1996.
    Decided July 23, 1996.
    53 St.Rep. 656.
    277 Mont. 313.
    922 P.2d 1134.

      For Appellant: William H. Tweedy, Pro Se, Cut Bank.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Ass’t Attorney General, Helena; Larry D. Epstein, Glacier County Attorney, Cut Bank.
   JUSTICE GRAY

delivered the Opinion of the Court.

William H. Tweedy (Tweedy) appeals from an order of the Ninth Judicial District Court, Glacier County, dismissing his appeal from a Justice Court conviction. We reverse and remand with instructions.

The issues on appeal are:

1. Did the District Court have jurisdiction over Tweedy’s appeal from the Justice Court?
2. Did the District Court err in granting the State of Montana’s motion to dismiss Tweedy’s appeal?
3. Was Tweedy’s right to a speedy trial violated?

On January 3,1989, the State of Montana (State) charged Tweedy in Glacier County Justice Court with two counts of misdemeanor assault. On April 11,1989, a jury found Tweedy not guilty on the first count, and guilty on the second count, of misdemeanor assault. The Justice Court scheduled sentencing for April 18, 1989, and Tweedy filed a notice of appeal to the District Court on April 19, 1989. The Justice Court filed its sentencing order on May 3,1989.

The District Court scheduled Tweedy’s trial for July 21, 1989. Tweedy subsequently requested, and received, a continuance of that trial date. No new trial date was ever scheduled. In April of 1990, Tweedy filed a letter requesting that his name be substituted for that of his previous counsel as attorney of record.

Nothing further occurred in the case until January 13,1995, when the State moved to dismiss the appeal on the basis that Tweedy had failed to diligently pursue it. Tweedy responded with a motion to dismiss the underlying charge for lack of speedy trial and prosecutorial prejudice. The District Court held a hearing on the motions and, thereafter, granted the State’s motion to dismiss Tweedy’s appeal. Tweedy appeals.

1. Did the District Court have jurisdiction over Tweedy’s appeal from the Justice Court?

On appeal, Tweedy argues that the District Court erred in dismissing his appeal from the Justice Court and in implicitly denying his motion to dismiss the charge against him on speedy trial grounds and other bases. In addition to responding to Tweedy’s arguments, the State contends that the District Court did not acquire jurisdiction over Tweedy’s appeal because his notice of appeal from the Justice Court was premature.

The issue of subject matter jurisdiction may be raised by a party, or by the court itself, at any stage of a judicial proceeding. In re Marriage of Miller (1993), 259 Mont. 424, 426, 856 P.2d 1378, 1380. Moreover, a party cannot consent to subject matter jurisdiction which is lacking or waive the want of jurisdiction. State v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511. Thus, notwithstanding the State’s failure to raise it in the District Court, the issue of whether the District Court had jurisdiction over Tweedy’s appeal from the Justice Court is properly before us.

The manner in which an appeal from a justice court to a district court must be taken is controlled by statute in Montana and recently has been clarified by this Court. Pursuant to § 46-17-311(2), MCA, a defendant initiates an appeal to the district court by filing written notice of intention to appeal within 10 days after a justice court judgment is rendered. A judgment on a criminal conviction includes the sentence; therefore, the imposition of sentence and final judgment by the justice court is a prerequisite for an appeal from that court to the district court. State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 425 (citations omitted). Anotice of appeal filed after a conviction, but before the justice court imposes sentence and final judgment, is premature and does not divest the justice court of jurisdiction over the case; conversely, a district court does not obtain subject matter jurisdiction until a justice court has imposed sentence and final judgment. Todd, 863 P.2d at 425 (citation omitted).

Here, Tweedy filed his notice of appeal after the April 11,1989, jury verdict finding him guilty of misdemeanor assault, but before the Justice Court filed its sentencing order on May 3, 1989. Tweedy asserts, however, that the Justice Court orally pronounced sentence on April 18, 1989, in the presence of himself and his attorney, that the judgment against him was final on that date and that his attorney prepared the notice of appeal later that day. On the basis of these assertions, Tweedy contends that he timely filed his notice of appeal on April 19, 1989, and the District Court acquired jurisdiction.

We previously have held that the statutory 10-day period for filing a notice of appeal runs from the date on which a justice court orally renders judgment in open court, regardless of whether a written judgment is issued. State v. Mortenson (1978), 175 Mont. 403, 404-405, 574 P.2d 581, 582. In Mortenson, the record apparently reflected that the sentence and judgment were, in fact, orally pronounced in open court. Mortenson, 574 P.2d at 581.

The record in the present case, insofar as it is relevant to this issue, consists of a jury verdict finding Tweedy guilty of one count of misdemeanor assault on April 11, 1989; a Justice Court notice requesting Tweedy to appear on April 18,1989, for sentencing; Tweedy’s notice of appeal, dated April 18,1989, and filed on April 19,1989; and the Justice Court’s sentencing order on Tweedy’s misdemeanor assault conviction, filed on May 3,1989.

Although the sentencing order does not refer to any sentencing proceeding or oral pronouncement of sentence having occurred on April 18, 1989, there also is no indication in the record that Tweedy did not appear, as ordered, for sentencing in the Justice Court on that date. Thus, while the record is not altogether clear in this regard, the order to appear for sentencing on April 18,1989, taken together with Tweedy’s notice of appeal dated the same day and filed on April 19, 1989, creates a strong inference that the Justice Court orally pronounced sentence on April 18,1989, in accordance with its scheduling order and that the May 3, 1989, sentencing order was merely a written formalization of its earlier oral sentence. As a result, judgment was rendered on April 18, 1989, and Tweedy’s notice of appeal to the District Court was timely filed within the statutory 10-day period. We conclude, therefore, that the District Court had subject matter jurisdiction over Tweedy’s appeal from the Justice Court.

We note that, in 1991, the legislature enacted § 46-18-116, MCA, which provides as follows:

The judgment must set forth the plea, verdict or finding, and the adjudication. If the defendant is convicted, it must set forth the sentence or other disposition. The judgment must be signed and entered on the record.

Although this statute is not located in Chapter 17 of Title 46, which specifically governs criminal procedure in justice and city courts, it is applicable to criminal proceedings in all the courts of Montana “except where provision for a different procedure is specifically provided by law.” Section 46-1-103(1), MCA. Neither the legislature nor this Court has provided such a different procedure for justice courts and, therefore, § 46-18-116, MCA, is applicable to criminal proceedings in justice courts. While the § 46-18-116, MCA, requirement for a signed judgment entered on the record does not apply here because Tweedy’s Justice Court conviction occurred in 1989, compliance with this requirement by Montana courts should eliminate confusion in the future regarding when the statutory time periods for appeal from judgments in criminal cases begin to run.

2. Did the District Court err in granting the State’s motion to dismiss Tweedy’s appeal?

The State argued in the District Court that Tweedy’s appeal from the Justice Court conviction and judgment should be dismissed based on his failure to pursue it in a timely manner. The State did not file a brief in support of its motion and did not provide the District Court with authority for its position at the hearing on both parties’ motions.

The District Court’s order granting the State’s motion to dismiss Tweedy’s appeal notes only that Tweedy made no effort to pursue his appeal from the April 1990, point at which he substituted himself as counsel of record until the State filed its motion to dismiss the appeal in January of 1995. The order provides no further rationale and contains no citation to authority. The court stated at the hearing that, as the party bringing the appeal, Tweedy was obligated to ensure that the appeal was heard in a timely fashion and that the State did not have the burden to pursue the appeal. The District Court order granting the State’s motion to dismiss the appeal did not directly address Tweedy’s motion to dismiss the underlying charge for lack of speedy trial on appeal.

Section 25-33-304, MCA, authorizes the dismissal of a civil appeal from a justice court to a district court for failure to prosecute or unnecessary delay. No statutory authority for such a dismissal of a criminal appeal exists, however, and this Court has not specifically addressed the issue of whether the defendant or the prosecution has the responsibility to timely pursue the prosecution of a criminal appeal from a justice court to a district court. The State contends that such responsibility lies with the party bringing the appeal.

The right of a criminal defendant to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287. As a general rule, it is the State’s duty to ensure that a criminal case is diligently prosecuted; the defendant has no duty to bring himself to trial. State v. Tiedemann (1978), 178 Mont. 394, 400, 584 P.2d 1284, 1288.

It is clear that a criminal defendant has the initial burden, pursuant to § 46-17-311, MCA, to perfect his or her appeal from a justice court in order to vest jurisdiction in. the district court. Once that appeal is perfected, the criminal defendant is entitled to a trial de novo in the district court pursuant to § 46-17-311(1), MCA. Thus, when the appeal reaches the district court, it proceeds as if it were a new trial. State v. Sunford (1990), 244 Mont. 411, 416, 796 P.2d 1084, 1087. Moreover, we have held that, once either party appeals a criminal action from a justice court to a district court, speedy trial issues are analyzed under the four-part test established in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. State v. Bullock (1995), 272 Mont. 361, 368-69, 901 P.2d 61, 66; Sunford, 796 P.2d at 1087.

While our cases have not specifically addressed the precise issue presently before us, they clearly mandate our conclusion that the burden is on the State to diligently prosecute a criminal case which is in the district court as the result of an appeal from a justice court, without regard to which party brought the appeal. To conclude otherwise would require us to ignore the de novo nature of such a proceeding under both § 46-17-311, MCA, and Sunford and to place the burden of prosecuting a criminal case on the defendant in contravention of Tiedemann. Indeed, to conclude otherwise would penalize a criminal defendant exercising the statutory right to appeal to the district court by effectively nullifying the constitutional guarantee of a speedy trial.

In addition, the situation at issue here is not dissimilar from that which occasionally results from an appeal to this Court. When a criminal defendant appeals to this Court and is granted a new trial, the State is required on remand to proceed with the new trial in a diligent and speedy manner. See, e.g., State v. Stewart (1994), 266 Mont. 525, 881 P.2d 629. A defendant exercising the statutory right to appeal from a justice court to the district court is entitled to the same treatment. The State retains the obligation to ensure that the trial de novo in the district court progresses in a manner which does not violate the defendant’s right to a speedy trial and, under Bullock, any speedy trial issues which arise after the appeal has been perfected are analyzed under the four-part Barker test. See Bullock, 901 P.2d at 66.

The State cites to City of Seattle v. Crockett (Wash. 1976), 551 P.2d 740, in support of its assertion that when a defendant appeals a justice court conviction, the burden to pursue that appeal rests with the defendant. In Crockett, the Washington Supreme Court recognized that a defendant retains a constitutionally protected right to a speedy trial in a trial de novo, but held that when the defendant is the party bringing the appeal in district court, he or she bears the burden of diligently prosecuting the appeal to protect that right to a speedy trial. Crockett, 551 P.2d at 743.

We decline to adopt the State’s position, based on Crockett, that a criminal defendant must pursue his or her own prosecution in a trial de novo before a district court. In our view, a defendant who retains the constitutional right to a speedy trial after appealing a justice court conviction to the district court must also retain the corresponding right to require the prosecution to ensure that a speedy trial occurs. We observe, in this regard, that other jurisdictions have held that a defendant is not under any obligation to act affirmatively to protect the right to a speedy trial in a trial de novo. See, e.g., City of Elkhart v. Bollacker (Kan. 1988), 757 P.2d 311, 314; and Hicks v. People (Colo. 1961), 364 P.2d 877, 879-80.

The State also relies on State v. Langdon (Idaho App. 1990), 785 P.2d 679, in support of its argument, but Langdon is inapplicable to the issue before us. There, the defendant’s appeal from a magistrate court to the district court was dismissed because he failed to file a brief in support of his appeal within the allotted time; the Idaho Court of Appeals determined that dismissal could be an appropriate discretionary sanction under the applicable procedural rule for failure to file a timely brief. Langdon, 785 P.2d at 680-81. In the present case, Tweedy owed no brief or other act pursuant to rule or statute.

We conclude that, once a defendant has perfected an appeal from the justice court to the district court, the State has the obligation to ensure that the prosecution of the case proceeds in a diligent manner. We hold, therefore, that the District Court erred in granting the State’s motion to dismiss Tweedy’s appeal on the basis that Tweedy failed to pursue it.

3. Was Tweedy’s right to a speedy trial violated?

An analysis of whether a defendant’s right to a speedy trial has been violated requires a balancing of the following four factors:

1) length of the delay;
2) reason for the delay;
3) assertion of the right by the defendant; and
4) prejudice to the defendant.

Matthews, 894 P.2d at 287. No single factor is indispensable or dispositive. State v. Britton (1984), 213 Mont. 155, 158, 689 P.2d 1256, 1258. The first factor, the length of the delay, acts as a triggering mechanism; the length of the delay must be presumptively prejudicial before the remaining three factors will be analyzed. Matthews, 894 P.2d at 287 (citation omitted). The State concedes that the delay in this case, a period of approximately six years, is presumptively prejudicial.

When the delay is presumptively prejudicial, the burden shifts to the State to rebut the presumption by showing a reasonable explanation for the delay and demonstrating that the defendant was not prejudiced by the delay. Matthews, 894 P.2d at 287. The State argues that the reason for the delay after the original July 21, 1989, trial date had been vacated was Tweedy’s failure to prosecute his appeal; on that basis, it contends that the entire period must be allocated to Tweedy. We concluded above, however, that it was the State’s duty to diligently prosecute the case. Thus, except for the relatively brief period before and after Tweedy’s motion to continue the original trial date, which is attributable to Tweedy, we charge the delay in excess of five years to the State.

We also must weigh the time chargeable to the State. Matthews, 894 P.2d at 287. Speedy trial issues often involve delay caused by crowded court dockets and corresponding difficulties in setting trial dates, which is commonly referred to as institutional delay; we weigh that type of institutional delay less heavily against the State than intentional delay. See State v. Weeks (1995), 270 Mont. 63, 72, 891 P.2d 477, 482. The delay in this case was not of that type.

Nor was the delay intentional. Rather, it was caused by the State’s erroneous conclusion that it did not have the burden to diligently prosecute Tweedy’s trial de novo and its total failure to pursue the case from July of 1989 until its motion to dismiss the appeal in January of 1995. We noted above that we have not heretofore specifically addressed the precise issue of which party has the burden of diligently pursuing a criminal appeal from a justice court to a district court for a trial de novo; we also indicated, however, that Tiedemann, Sunford, and Bullock clearly mandated our conclusion here that the burden remained on the State to timely prosecute. Thus, Montana case law did not provide a reasonable basis for the State’s position on the burden issue. As a result, we weigh the delay of more than five years in this case heavily against the State.

The third Barker factor requires that a defendant assert the right to a speedy trial. “Our rule is that if a defendant has moved to dismiss before trial, he has fulfilled the requirement of asserting his constitutional right to a speedy trial.” Britton, 689 P.2d at 1260. Here, Tweedy moved to dismiss for lack of speedy trial before his trial was ever rescheduled after the first continuance. Thus, he fulfilled the requirement that he assert his constitutional right.

The State argues, in this regard, that even if it and the District Court had some responsibility to reset Tweedy’s case for trial, that responsibility should be weighed against Tweedy’s “lack of assertion” of the right to speedy trial; in that event, according to the State, this Court “must decide whether the cause of the delay was completely attributable to the State or to a waiver of the right of speedy trial by the Defendant.” With regard to the alleged “lack of assertion” of the right, that contention is factually incorrect; indeed, the State recognizes at another portion of its brief that Tweedy asserted his right on January 17,1995. With regard to the “waiver” theory, the State cites to no authority under which a defendant’s right to a speedy trial is waived — in the legal sense — where asserted prior to trial. As presented here, these arguments by the State are merely a different, and unsupported, twist on its earlier efforts to place the burden of diligently prosecuting this trial de novo on the defendant.

The final factor of the speedy trial analysis is whether the defendant was prejudiced by the delay Three interests are considered in assessing prejudice resulting from delay: 1) prevention of oppressive pretrial incarceration; 2) minimization of the defendant’s anxiety and concern; and 3) avoidance of impairment of the defense. Matthews, 894 P.2d at 288. The avoidance of impairment of the defense is the most critical of these three interests. Matthews, 894 P.2d at 288.

The primary prejudice-related thrust of Tweedy’s motion to dismiss for lack of a speedy trial was that witnesses’ memories had been impaired by the delay. The State argues that, under Weeks, general claims of impairment are not persuasive, and that “none of the witnesses have passed away and there has been no destruction of the records regarding the charged incident.”

It is true that mere self-serving assertions that the defendant suffered prejudice generally are not sufficient to demonstrate impairment of, or prejudice to, the defense. Weeks, 891 P.2d at 484. In Weeks, however, the defendant stated only that “ ‘[t]he defense was impaired by the passage of time.’ ” Weeks, 891 P.2d at 484. Here, Tweedy’s statement that witnesses’ memories were impaired by the lengthy delay is at least minimally more specific than the statement in Weeks upon which we based our conclusion.

Moreover, given the presumptively prejudicial delay, the burden shifted to the State in this case to rebut the presumed prejudice. Matthews, 894 P.2d at 287. The State did not respond to Tweedy’s motion via either a brief or argument at the hearing. It did not present any evidence, as required by Matthews, to prove that Tweedy was not prejudiced. See Matthews, 894 P.2d at 289.

Nor is the State’s assertion on appeal that “none of the witnesses have passed away” material here. First, Tweedy did not assert that witnesses had died; he asserted that witnesses’ memories have been impaired due to the long delay. Thus, the State’s assertion is not responsive to Tweedy’s assertion and, even if true, it would be insufficient to rebut Tweedy’s claim. More importantly, the appropriate place to respond to Tweedy’s claim of prejudice was in the District Court, not in this Court. The State could, and should, have done so by responding to Tweedy’s motion and requesting an evidentiary hearing to rebut his claims. It did not.

We recognize that, in the usual case, a defendant claiming a speedy trial violation would be required to at least submit an affidavit in support of claims of prejudice. Matthews, 894 P.2d at 289. Moreover, even an affidavit containing a general “the defense was impaired” assertion is not sufficient to demonstrate impairment or prejudice to the defense. Weeks, 891 P.2d at 484.

Once the burden has shifted to the State to rebut presumed prejudice, however, it is the State’s duty to respond to a speedy trial motion and to properly raise, for resolution by the district court, the issues related thereto. Under the well-established principle that we will not consider an issue raised for the first time on appeal, the State acts at its own peril if it fails to do so. See Weeks, 891 P.2d at 491.

In this case, the State failed to raise either its fact-based responses or its legal authority regarding the sufficiency of Tweedy’s assertions in the District Court. Thus, on this record, we conclude that the State failed to meet its burden of rebutting the presumed prejudice to the defense as a matter of law. Consequently, we weigh the prejudice factor in Tweedy’s favor.

In this case, we conclude that a proper balancing of the four Barker factors pursuant to Matthews requires that we accord the extraordinary length of the delay substantially more weight than any of the other Barker factors and that we weigh it in Tweedy’s favor and against the State. The assertion of the right and prejudice factors also weigh in Tweedy’s favor, although less heavily. As a result, we hold that Tweedy’s constitutional right to a speedy trial was violated.

We reverse the District Court’s order dismissing Tweedy’s appeal and remand for entry of an order dismissing the misdemeanor assault charge against him.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, LEAPHART and ERDMANN concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    HILANDS GOLF CLUB, Petitioner and Appellant, v. JOAN ASHMORE a/k/a Joan Zirko, Respondent and Respondent.
    No. 96-014.
    Submitted on Briefs May 16, 1996.
    Decided July 23, 1996.
    53 St.Rep. 664.
    277 Mont. 324.
    922 P.2d 469.

      For Appellant: Mark D. Parker; Parker Law Firm, Billings; James H. Goetz; Goetz, Madden & Dunn, Bozeman.
    For Respondent: Virginia A. Bryan; Wright, Tblliver & Guthals, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant, Hilands Golf Club (Hilands), appeals from the Yellowstone County, Thirteenth Judicial District Court’s Order dismissing Hilands’ Petition for Judicial Review with prejudice. We reverse.

Hilands raises three issues on appeal relating to whether the failure to serve a Rule 4, M.R.Civ.R, summons on respondent, Joan Ashmore (Ashmore) and the Montana Human Rights Commission (Commission) was obviated by their voluntary appearances in the District Court proceeding. We determine that Hilands’ issue number four is dispositive; that is, whether service pursuant to Rule 5, M.R.Civ.R, rather than service pursuant to Rule 4, M.R.Civ.R, upon parties and non-party agencies to an administrative appeal to district court is sufficient? Consequently, we restate the dispositive issue as follows:

Whether, when petitioning for judicial review of an administrative decision, the Montana Administrative Procedure Act requires service on agencies and parties pursuant to the provisions of Rule 4, M.R.Civ.R, as we held in Fife v. Martin (1993), 261 Mont. 471, 863 P.2d 403, or pursuant to the provisions of Rule 5, M.R.Civ.P.?

BACKGROUND

In 1991, Ashmore brought a claim before the Commission alleging that Hilands had discriminated, based on gender, in its public accommodations contrary to § 49-2-304, MCA. A Commission investigator investigated Ashmore’s complaints and found no probable cause to believe that Hilands had violated § 49-2-304, MCA. Ashmore appealed this determination of no probable cause and the Commission held a contested case hearing on the matter. Following the hearing, the Commission’s final order determined that Hilands had discriminated in its membership and other policies in violation of the Human Rights Act, §§ 49-1-101 through 49-4-511, MCA. The Commission awarded Ashmore damages and ordered broad relief to address Hilands’ discriminatory practices.

Pursuant to § 2-4-702, MCA, Hilands filed a Petition for Judicial Review of the Commission’s holding. Hilands, by mail, served copies of the petition for review on Ashmore’s attorney and the attorney for the Commission, pursuant to Rule 5(b), M.R.Civ.P. However, Hilands did not have a summons issued or served on either entity.

On July 19,1994, Ashmore moved to substitute the District Court judge. Numerous motions for substitution of judge followed. Ashmore, Hilands, the Commission, and the presiding judge held conferences to determine which outside judge would be called into the case. In April, 1995, they ultimately decided on District Court Judge C. B. McNeil.

In a scheduling conference held May, 1995, counsel for Ashmore, Hilands and the Commission agreed upon a briefing schedule. The Commission had participated throughout the District Court proceedings by joining in the conferences to select a judge, joining in the scheduling conference, filing notices of appearance, and filing motions. However, Hilands consistently maintained that the Commission was not a party to this action because it had not been a party to the administrative proceedings below. The Commission concedes that it was not a party to the administrative proceedings before the Commission’s hearing examiner.

At the May, 1995, scheduling conference in District Court, Hilands argued that the Commission was not a party to the action and that, should it wish to participate as a party, it should seek to intervene pursuant to Rule 24, M.R.Civ.P. Subsequently, the Commission moved to intervene in the matter and the District Court denied the motion, holding that the Commission was not properly a party. See Young v. City of Great Falls (1981), 194 Mont. 513, 515-16, 632 P.2d 1111, 1113.

In August, 1995, Hilands filed its brief on the merits in District Court. Ashmore’s counsel obtained an extension until mid-October in which to file her answer brief. In early October, Ashmore filed a Rule 12(b), M.R.Civ.P., Motion to Dismiss. Ashmore based her Motion to Dismiss on Fife v. Martin (1993), 261 Mont. 471, 863 P.2d 403, arguing that service of process via summons, pursuant to Rule 4D, M.R.Civ.P., was necessary to establish jurisdiction in the District Court.

The District Court granted Ashmore’s motion and dismissed the petition with prejudice. The court determined that under § 2-4-702(2)(a), MCA, copies of the petition for judicial review must be promptly served upon the agency from which review is sought, in this case the Commission, in accordance with Rule 4D(2)(h), M.R.Civ.P. In other words, the court concluded that Hilands had failed to serve process upon the Commission, under Rule 4D(2)(h), M.R.Civ.P., by delivering a copy of the summons and petition to the Attorney General. The court relied on Fife, 261 Mont. 471, 863 P.2d 403, for the proposition that the procedures proscribed under § 2-4-702, MCA, comprise “a jurisdictional threshold which must be met in order to vest authority in a district court.”

Based on its interpretation of Fife, the District Court concluded that, because the Commission had not been served via the Attorney General pursuant to Rule 4D(2)(h), M.R.Civ.P., the court did not have jurisdiction over this matter. Consequently, because it was too late for Hilands to obtain prompt service on the Commission and because Hilands had failed to comply with jurisdictional requirements, the court dismissed Hilands’ Petition for Review with prejudice. Given its conclusion that it had no jurisdiction to proceed, the court decided it was unnecessary to address whether or not it had obtained jurisdiction pursuant to Rule 4B(2), M.R.Civ.P., over Ashmore by virtue of her voluntary appearances or whether the Commission had voluntarily appeared through its Motion to Intervene.

STANDARD OF REVIEW

Ashmore based her motion to dismiss on lack of jurisdiction, Rule 12(b)(1) and (2), M.R.Civ.P. Motions to dismiss are construed in a light most favorable to the non-moving party, in this case Hilands, and should not be granted unless it appears beyond doubt that Hilands can prove no set of facts in support of its claim which would entitle it to relief. See Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317; Boehm v. Nelson (1987), 229 Mont. 452, 453-54, 747 P.2d 213, 214. In considering the motion, the complaint is construed in the light most favorable to Hilands and all allegations of fact contained therein are taken as true. See Lockwood, 900 P.2d at 317; Boehm, 747 P.2d at 214. The District Court’s determination that it did not have jurisdiction over this case is a conclusion of law. Pike v. Burlington N. R.R. Co. (1995), 273 Mont. 390, 392-93, 903 P.2d 1352, 1353. We review a district .court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Lockwood, 900 P.2d at 317.

DISCUSSION

As discussed earlier, and because in this case we overrule Fife, 261 Mont. 471, 863 P.2d 403, we restate the dispositive issue as follows:

Whether, when petitioning for judicial review of an administrative decision, the Montana Administrative Procedure Act requires service on agencies and parties pursuant to the provisions of Rule 4, M.R.Civ.P., as we held in Fife, 261 Mont. 471, 863 P.2d 403, or pursuant to the provisions of Rule 5, M.R.Civ.P.?

The District Court granted Ashmore’s Rule 12(b) Motion to Dismiss for lack of jurisdiction. The court stated: “Service of process upon the Human Rights Commission must be made as required by Rule 4D(2)(h), M.R.Civ.P, by delivering a copy of the summons and complaint (herein the petition) to the Attorney General and to any other party which may be prescribed by statute.” The court determined that, under Fife, the procedures to gain jurisdiction as prescribed by the Montana Administrative Procedure Act (MAPA), §§ 2-4-101 through 711, MCA, and Montana’s Rules of Civil Procedure, comprise a jurisdictional threshold which must be met in order to vest authority in a district court. Fife, 863 P.2d at 407. Having concluded that it had no jurisdiction over the Commission, the court declined to address the issue of whether it acquired jurisdiction over Ashmore pursuant to Rule 4B(2), M.R.Civ.P., due to her voluntary appearances.

In her Rule 12(b) Motion to Dismiss, Ashmore argued that, because Hilands failed to properly and promptly serve a copy of the summons and petition upon Ashmore, the Commission, and the Attorney General, under § 2-4-702, MCA, and Rule 4D, M.R.Civ.P., the District Court lacked personal and subject matter jurisdiction to hear this case. On appeal, Hilands frames the issue as solely a question of personal jurisdiction. Ashmore now counters that Hilands’ failure to serve a copy of the summons or petition on Ashmore and the Commission via the Attorney General deprives the court of subject matter jurisdiction. There is no merit to Ashmore’s contention that failure to serve process pursuant to Rule 4, M.R.Civ.P., deprives the court of subject matter jurisdiction. Rule 4, M.R.Civ.P., establishes the procedure for acquiring personal jurisdiction over persons or entities subject to the court’s jurisdiction. Subject matter jurisdiction exists independently of personal jurisdiction over the parties.

Article VII, § 4(2) of the Montana Constitution provides that the legislature may provide for direct review by the district court of decisions of administrative agencies. MAPA, Title 2 Chapter 4 at Part 7, provides the procedures for judicial review of administrative contested cases. MAPA provides that: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.” Section 2-4-702, MCA. Thus, the district courts have subject matter jurisdiction over administrative appeals.

The Human Rights Act sets out the procedures for contested cases. Sections 49-2-501 through -510, MCA. Contested case hearings and subsequent proceedings under the Human Rights Act must be held in accordance with MAPA. Section 49-2-505, MCA. MAPA sets forth the procedure for initiating judicial review of contested cases at § 2-4-702, MCA:

(2)(a) ... proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision is rendered. ... Copies of the petition must be promptly served upon the agency and all parties of record.

Additionally, at § 2-4-106, MCA, MAPA provides that:

Except where a statute expressly provides to the contrary, service in all agency proceedings subject to the provisions of this chapter and in proceedings for judicial review thereof shall be as prescribed for civil actions in the district courts.

In other words, service under MAPA shall be as prescribed by the Montana Rules of Civil Procedure unless a statute expressly provides otherwise. MCI Telecommunications Corp. v. Department of Public Serv. Regulation (1993), 260 Mont. 175, 179, 858 P.2d 364, 367. We treat administrative agency appeals to district courts in a manner similar to other proceedings. MCI, 858 P.2d at 367. Moreover, we encourage a liberal interpretation of procedural rules governing judicial review of an administrative decision, rather than taking an overly-technical approach, so as to best serve justice and allow the parties to have their day in court. Young, 632 P.2d at 1113.

It is uncontested that Hilands timely filed a Petition for Judicial Review pursuant to § 2-4-702, MCA. Hilands, by mail, served copies of the petition upon Ashmore’s attorney and upon the Commission’s attorney, pursuant to Rule 5(b), M.R.Civ.P. It is also uncontested that Hilands did not have a summons issued or served on Ashmore, the Commission, or the Attorney General, pursuant to Rules 4C and 4D, M.R.Civ.P.

Both Ashmore and the District Court rely on Fife for the proposition that service of process, as set forth in Rule 4D(2)(h), M.R.Civ.P., upon the Commission and the Attorney General must be accomplished in order to vest jurisdiction in a district court. 261 Mont. 471, 863 P.2d 403. In Fife, Patricia Lee Martin (Martin) assigned her rights to collect delinquent, future and present child support obligations owed her by David Fife (Fife), to the Department of Social and Rehabilitation Services, Child Support Enforcement Division (CSED). CSED sought enforcement of its assigned rights. CSED sent Fife a notice of parental responsibility and set a date for an administrative hearing on the matter. Fife moved the agency to dismiss the action on constitutional grounds. After various administrative proceedings, Fife petitioned the district court for judicial review naming Martin as the sole respondent. Fife mailed copies of the petition to Martin and CSED. Fife, 863 P.2d at 405.

On appeal, this Court determined that because Martin had assigned her rights to CSED, CSED was the real party in interest and the proper respondent to Fife’s petition for judicial review. Fife had mailed copies of the petition for judicial review to CSED and Martin, but had not properly named CSED as the respondent in his petition, nor served CSED pursuant to Rule 4D, M.R.Civ.P. CSED did not answer the mailed petition for judicial review and CSED did not appear in court. When Fife subsequently obtained and mailed a summons to CSED and Martin, CSED refused to acknowledge service of the summons and complaint as allowed by Rule 4D, M.R.Civ.P. Fife, 863 P.2d at 405.

We held, in Fife, that MAPA, § 2-4-702, MCA, requires that service upon a party to an administrative appeal be accomplished through a Rule 4D, M.R.Civ.P., service of summons. Fife, 863 P.2d at 407. We now overrule this holding in Fife and hold instead that, for the purposes of an administrative appeal to the district court, service upon the parties and the agency, whether the agency itself is a party or not, pursuant to Rule 5, M.R.Civ.P., is sufficient.

Under the Rules of Civil Procedure, service can be accomplished under either of two rules, Rule 4 or Rule 5, M.R.Civ.P. Under Rule 4, M.R.Civ.P, jurisdiction is acquired through the service of process. Process, under Rules 4C and 4D, M.R.Civ.P., requires the issuance and service of a summons upon a party. Once served with a summons, the party so served is required to appear and defend. Rule 4C(2), M.R.Civ.P. If the party does not appear and defend, Rule 4C(2), M.R.Civ.P., provides that judgment by default will be rendered against him.

However, a petition for judicial review to the district court is analogous to an appeal, as recognized by this Court, in MCI, 260 Mont. 175, 858 P.2d 364. As a prerequisite to judicial review, the parties must have “exhausted all administrative remedies available within the agency.” Section 2-4-702(l)(a), MCA. By the time the matter is before the district court for judicial review, the parties have already been defined through their appearance at, and participation in, the administrative proceedings. There is no more need to acquire Rule 4, M.R.Civ.P., personal jurisdiction over these parties than there would be in an appeal from district court to the Supreme Court.

That leaves Rule 5(b), M.R.Civ.P., as the only other method within the Rules of Civil Procedure for serving parties to an administrative appeal. As between the only two options for service, Rule 4, M.R.Civ.P., and Rule 5, M.R.Civ.P., Rule 5, M.R.Civ.P., is the more logical choice for effecting service. Rule 5, M.R.Civ.P., is designed to give notice via mailing or delivery of papers and pleadings. Unlike Rule 4, M.R.Civ.P., it is not designed to acquire jurisdiction over persons, nor does it require the service of a summons with the attendant requirement that the served party appear and defend or face a default judgment. While we recognize that Rule 5, M.R.Civ.P., speaks in terms of serving “parties,” we hold that, for the purposes of service under MAPA, it is sufficient to mail copies of the Petition for Judicial Review upon the parties and the agency, whether the agency is itself a party or not. Accordingly, we hold that Rule 5(b), M.R.Civ.P., service by mail is all that is necessary to satisfy the service requirement of § 2-4-702, MCA. We reverse the District Court’s conclusion that failure to serve summons and a copy of the petition upon the Commission through the Attorney General deprived the court of jurisdiction to proceed.

Finally, we note that the District Court based its dismissal on its conclusion that it had no jurisdiction over the Commission. The court did not address its jurisdiction over Ashmore. The question of whether Ashmore’s voluntary appearances subjected her to the jurisdiction of the District Court pursuant to Rule 4B(2), M.R.Civ.P., is irrelevant given our holding that service pursuant to Rule 5, M.R.Civ.P., is sufficient under §§ 2-4-106 and 2-4-702(2)(a), MCA. Hilands mailed the Petition for Judicial Review to Ashmore pursuant to Rule 5(b), M.R.Civ.P. This mailing was sufficient to vest the District Court with jurisdiction over Ashmore as well as the Commission.

The District Court erred in dismissing Hilands’ Petition for Judicial Review for lack of jurisdiction. Hilands’ service of the petition on Ashmore and the Commission, a non-party, according to Rule 5(b), M.R.Civ.P., was sufficient to satisfy the requirements of § 2-4-702, MCA.

We reverse.

JUSTICES ERDMANN, HUNT, NELSON and GRAY concur.


author: JUSTICE GRAY JUSTICE LEAPHART,

text:
    MAURICE JARRETT, HARRY S. WALLS, JUDITH S. KENNEDY, KEN KIVLIN, JOAN BELL, ELIZABETH M. BROGAN, WILLIAM BROOKS, JAKE CROUNSE, ANNETTE DUNSETH, HENRY AND MARY ENDLER, EDGAR H. GREENE, THOMAS AND ANN JOCHUM, KENNETH AND MYRNA KAUTZ, ELWOOD T. KENNEDY, EDWARD LENAHAN, WILLIAM McCOSTLIN, JOE MULLINS, JERRY AND ALPHA MYERS, VINCE AND OLGA ORME, CARRIE PASEWARK, CARL AND BETTY PENLY, JOHN AND JUNE ROACH, DELPHIN AND ROSARIO SANTOS, DOUG STEIN, EUNICE AND BETTY TAYLOR, and KEVIN ROBERTS, Plaintiffs and Respondents, v. VALLEY PARK, INC. and ST. MARIE VILLAGE ASSOCIATION, INC., Defendants and Appellants.
    No. 95-417.
    Submitted on Briefs February 29, 1996.
    Decided July 25, 1996.
    53 St.Rep. 671.
    277 Mont. 333.
    922 P.2d 485.

      For Appellants: J. David Penwell, Attorney at Law, Bozeman.
    For Respondents: Kathleen H. Richardson; Young, Brown & Richardson, Havre.
   JUSTICE GRAY

delivered the Opinion of the Court.

Valley Park, Inc. and St. Marie Village Association, Inc. appeal from the judgment entered on the order of the Seventeenth Judicial District Court, Valley County, granting the plaintiffs’ motion for summary judgment and permanently enjoining enforcement of the restrictive covenant at issue. We reverse and remand with instructions.

We restate the issues on appeal as follows:

1. Did the District Court err in granting the plaintiffs’ motion for summary judgment based on its conclusion that the restrictive covenant at issue is void and unenforceable?

2. Are Valley Park, Inc. and St. Marie Village Association, Inc. entitled to summary judgment?

3. Did the District Court abuse its discretion in permanently enjoining enforcement of the restrictive covenant at issue?

Valley Park, Inc. (Valley Park) is the developer of a retirement community (the village of St. Marie) located in Valley County, Montana, and the original owner of all of the property comprising the village of St. Marie. In September of 1988, it subjected the village of St. Marie to Montana’s Unit Ownership Act by filing the statutorily-required declaration. See § 70-23-103, MCA. Pursuant to the Act, each emit owner must comply with the covenants governing the property. See § 70-23-506, MCA. By the time this action commenced, Valley Park had sold 208 lots and condominium units to other individuals and entities and still owned the remaining unsold property and 464 condominium units.

On August 12, 1992, Valley Park executed the “First Amended Protective Covenants of the Village of St. Marie” (Protective Covenants). By their express terms, the Protective Covenants run with the land and are binding on Valley Park and its grantees, successors and assigns. The stated purpose of the Protective Covenants is “maintaining a uniform and stable value, character, architectural design, use and development of the property.”

The Protective Covenants are divided into eleven sections which cover subjects ranging from the use of the property to the procedure for amending the Protective Covenants. Section II establishes an architectural committee and contains numerous restrictions on alterations and improvements by lot and unit owners; under many of the restrictions, owners must obtain approval from the architectural committee prior to undertaking alterations or improvements. Section III provides for the establishment of the St. Marie Village Association, the purpose of which is to carry out the “intent, purpose and function of [the Protective Covenants].”

On August 1, 1994, Maurice Jarrett applied to the architectural committee for permission to install an eighteen-inch television satellite receiving dish on the exterior wall of his condominium unit. The architectural committee denied his request based on Section II(Q) of the Protective Covenants (Covenant II(Q)) which prohibits the installation of “television satellite receiving dishes” within the village of St. Marie except by Valley Park or its designate. Approximately three weeks later, he applied to install a television antenna and the architectural committee approved his request.

In November of1994, Maurice Jarrett and thirty-four other owners of either lots or condominium units (collectively, Jarrett) filed a complaint against Valley Park and the St. Marie Village Association (collectively, VPI). Jarrett requested the District Court to declare Covenant II(Q) void and unenforceable and permanently enjoin VPI from enforcing it. In response, VPI denied that the covenant was void and unenforceable. Both parties conducted discovery.

In May of 1995, both Jarrett and VPI moved for summary judgment. The District Court granted Jarrett’s motion, declaring Covenant II(Q) void and unenforceable and ordering that VPI be permanently enjoined from enforcing it. Thereafter, Jarrett filed a motion to amend, pursuant to Rule 59(g), M.R.Civ.P., to include an award of attorney’s fees and the District Court awarded Jarrett $5,000 in attorney’s fees. VPI appeals.

1. Did the District Court err in granting Jarrett’s motion for summary judgment based on its conclusion that Covenant II(Q) is void and unenforceable?

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court’s grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. In re Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532 (citation omitted). Ordinarily, such a review requires that we first determine whether the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. See Estate of Lien, 892 P.2d at 532.

In this case, however, the parties agree on the material facts relating to the legal issue of whether Covenant II(Q), which prohibits the installation of television satellite receiving dishes in the village of St. Marie except by VPI or its designate, is enforceable. Through their cross motions for summary judgment, each party asserted entitlement to judgment as a matter of law. The District Court granted Jarrett’s motion, concluding that Covenant II(Q) is ambiguous, lacking quantifiable and objective standards of review by the architectural committee and insufficiently connected to a general plan or scheme. We address in turn the District Court’s conclusions.

a. Ambiguity

We interpret restrictive covenants by applying the rules of construction applicable to contracts. Gosnay v. Big Sky Owners Ass’n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250 (citation omitted). The language of the covenant is to be understood in its plain and ordinary sense. Hillcrest Homeowners Ass’n v. Wiley (1989), 239 Mont. 54, 56, 778 P.2d 421, 423; § 28-3-501, MCA. “[W]here the words [used in restrictive covenants] are plain, unambiguous, direct and certain and admit of but one meaning, then it is the duty of this Court to declare what the terms of the covenants contain ....” Higdem v. Whitham (1975), 167 Mont. 201, 208, 536 P.2d 1185, 1189.

Covenant II(Q) states:

No television satellite receiving dishes shall be placed on any portion of the property except by [VPI] or its designate. Radio and television antennas and aerials may be placed on the property as approved by the architectural committee.

The first sentence of the covenant, which is at issue here, absolutely prohibits installation of television satellite receiving dishes except by VPI or its designate. The second sentence authorizes the placement of radio and television antennas in the event the architectural committee approves such placement.

In interpreting Covenant II(Q), the term “television satellite receiving dish” must be understood in its ordinary and popular sense. See Hillcrest, 778 P.2d at 423. Here, the parties do not dispute that the eighteen-inch dish Jarrett wanted to install is, in fact, a “television satellite receiving dish.” Thus, by the plain meaning of the language used, Covenant II(Q) prohibits installation of satellite dishes except by VPI or its designate.

Nor does Jarrett contend that the term “television satellite receiving dish” is susceptible to two definitions or understandings. Rather, Jarrett argues that the term “television satellite receiving dish” is ambiguous under the facts of this case due to advancing technology. In this regard, Jarrett states that

“television satellite receiving dishes” were commonly understood to be large, metal contraptions installed on the ground ... [which were] arguably unsightly. The new eighteen inch dishes can be affixed to the exterior of buildings in the same way that radio and television antennas and aerials are, and are no larger than other antennas and aerials.

Notwithstanding the myriad values and impacts of “advancing technology,” technology does not — in and of itself — render ambiguous language which is otherwise direct and clear. Nothing in the language used in Covenant II(Q) relates to the size of the dish. Moreover, nothing in Covenant II(Q) qualifies the prohibition based on the means or manner by which the television satellite receiving dishes are affixed to buildings. We conclude that Covenant II(Q) is unambiguous and, according to the plain meaning of the language used, prohibits the installation of television satellite receiving dishes — regardless of size or manner of installation — except by VPI or its designate.

Jarrett’s final argument relating to the term “television satellite receiving dish” used in Covenant II(Q) is that the District Court properly relied on Higdem in determining that applying that language to the eighteen-inch dishes would result in a prohibited extension of the covenant to cover a “question later developing.” We disagree.

In Higdem, the defendants commenced construction of a garage on their property and the plaintiffs sued based on restrictive covenants governing use of the property in the subdivision. Higdem, 536 P.2d at 1187. The restrictive covenants at issue provided, in relevant part, that purchasers of lots in the subdivision were prohibited from

erect [ing] any building other than a single detached dwelling house, either with or without a garage or other like and necessary outbuilding ... [and from using] any building to be erected upon said lot of land ... for any purpose other than those incidental to the use of a private dwelling house only; this provision being intended to prohibit the use of any housing for ... any commercial purpose ....

Higdem, 536 P.2d at 1187.

The defendants testified that they had abandoned any intention of using the garage for “odd jobs” due to opposition from neighbors, that the garage that came with their house was inadequate based on the number of vehicles their family owned and that the new garage was needed as additional storage space for vehicles, tools, lawn equipment and firewood. Higdem, 536 P.2d at 1187. Without referencing a specific covenant, the district court concluded that “the additional building, its size and the purpose intended are in violation of the restrictive covenants.” Higdem, 536 P.2d at 1188.

On appeal, we set forth the threshold rules for interpreting restrictive covenants. Where the words are plain, unambiguous, direct and certain and admit of but one meaning, it is our duty to declare what the terms of the covenants contain and not to insert a limitation not contained therein. Higdem, 536 P.2d at 1189. Moreover, restrictive covenants must be strictly construed and should not be aided or extended by implication or enlarged by construction. Higdem, 536 P.2d at 1189-90. We noted that the covenant at issue made no reference to the size of garages permitted and, on that basis, rejected the plaintiffs’ efforts to support the size restriction the district court read into the covenants. Accordingly, we concluded that the

district court should not have broadly interpreted and imposed these restrictive covenants in terms of what the parties would have desired had they initially been confronted with questions later developing.

Higdem, 536 P.2d at 1190. While our use of the term “broadly interpreted” — in a situation where the district court’s interpretation rendered the covenant more restrictive than its plain and unambiguous language could support — is not absolutely clear, our meaning was that the district court could not “broaden” the covenant by adding a limitation not contained therein. Thus, in Higdem, the district court erred by imposing the restrictive covenants beyond their terms, in contravention of the rules of construction applicable to restrictive covenants, in order to encompass what the neighboring landowners might have desired “had they initially been confronted with questions later developing.”

Here, while the District Court determined that the term “television satellite receiving dishes” was not clearly defined, we have concluded above that the language is clear and unambiguous. Based on its erroneous determination of ambiguity, the District Court then apparently relied on Higdem in further determining that inclusion of the eighteen-inch dishes within Covenant II(Q)’s prohibition would improperly “extend” the restriction to cover the later developed technology.

The reverse, however, is true. As discussed above, the term “television satellite receiving dishes” is clear and unambiguous and Covenant II(Q) does not contain size, or other, limitations on the meaning of the term. In order to exempt the newer dishes from the prohibition contained in Covenant II(Q), it would be necessary to insert limitations regarding the size of, and/or manner of installing, television satellite receiving dishes which do not exist in the unambiguous language used in the covenant. Injecting such limitations would result in a covenant which, for example, prohibited the installation by anyone Other than VPI or its designate of television satellite receiving dishes more than eighteen inches in diameter which are installed by placement on the ground or on a roof, but not on an exterior wall; such a judicially-revamped covenant, however, would bear little resemblance to the plain language of Covenant II(Q) prohibiting the installation of television satellite receiving dishes except by VPI or its designate. Like the neighboring landowners in Higdem, Jarrett clearly would have preferred a differently worded covenant had this “question later developing” with regard to smaller dishes installed in a manner similar to television and radio antennas existed at the time Covenant II(Q) was written. However, we must strictly construe covenants and may not insert limitations not contained therein. Higdem, 536 P.2d at 1189-90. We hold that the District Court erred in concluding that Covenant II(Q) is ambiguous and, on that basis, unenforceable.

b. Lacking Quantifiable and Objective Standards

The District Court further based its determination that Covenant II(Q) is void and unenforceable on its conclusion that

[t]here is no quantifiable and objective standard of review for approval by the architectural committee ... [and that] [Hacking such standards, the actions of the architectural committee are subject to such arbitrary determination of sufficient degree as to deny substantive due process.

The District Court’s conclusion apparently is based on Town & Country Estates Ass’n v. Slater (1987), 227 Mont. 489, 740 P.2d 668.

Town & Country Estates involved a prior-approval covenant which provided that:

No residential... structure ... shall be made ... upon the Properties ... until plans and specifications ... have been submitted to and approved in writing as to harmony of exterior design ... by a Design Review Committee ....

Town & Country Estates, 740 P.2d at 669-70. The owners of a lot presented plans for a proposed house with a shake roof, wood siding and 2,600 square feet of living space. Town & Country Estates, 740 P.2d at 670. The Design Review Committee rejected the plans, stating that the home was not in harmony of external design as required by the covenant and that “ ‘the neighborhood consists of $200,000 plus homes, and this is the kind of conformity that you should look to.’ ” Town & Country Estates, 740 P.2d at 670. The owners began construction without approval and the subdivision homeowners’ association sued. Town & Country Estates, 740 P.2d at 670.

We recognized that, although prior-approval covenants properly may be based on aesthetic considerations, every house in the subdivision at issue had a “unique external design, in a cacophony of styles [;]” the covenant did not contain any design standard and the Design Review Committee was unable to state one. Town & Country Estates, 740 P.2d at 671. Moreover, the record reflected that the submitted plans met the only common design characteristics extant in the subdivision, which related to minimum size and type of roof. We concluded that where a prior-approval covenant fails to define a standard of approval for the entity charged with review and approval of plans, it is too vague to be enforceable. Town & Country Estates, 740 P.2d at 671. Since the subdivision at issue had a “broad architectural spectrum,” and the owners’ proposal fell within that spectrum, we held that the covenant was vague to a degree which denied the owners substantive due process. Town & Country Estates, 740 P.2d at 671.

Town & Country Estates involved a prior-approval covenant which was vague due to a lack of design standards under which the required review and approval of plans would be conducted. In the present case, Covenant II(Q) contains a prohibition against the installation of television satellite receiving dishes by unit owners. The prohibition totally precludes such installation and, as a result, no plans or applications are subject to review by the architectural committee. Thus, the quantifiable and objective standards for review which were necessary in Town & Country Estates have no applicability here. We hold, therefore, that the District Court erred in concluding that the absence of quantifiable and objective standards of review renders Covenant II(Q) unenforceable.

c. Insufficiently Connected to General Plan or Scheme

The District Court also concluded that Covenant II(Q) is not enforceable because “[i]t does not clearly connect the restriction to any general plan or scheme” in that no statement in the Protective Covenants specifically shows how the restriction on installation of satellite dishes is connected to the stated purpose of the Protective Covenants. That purpose, as set forth above, is to maintain “a uniform and stable value, character, architectural design, use and development of the property.” The District Court apparently relied on Town & Country Estates in reaching its conclusion.

As discussed above, Town & Country Estates involved a prior-approval covenant requiring “harmony of external design.” In addressing the covenant, we set forth the rules to be applied when the terms of a restrictive covenant were ambiguous; we also stated that, generally, restrictive covenants

are valid if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme.

Town & Country Estates, 740 P.2d at 671. In the context of the prior-approval covenant at issue, we observed that approval of plans by an architectural committee is one method which helps maintain the value and general plan of subdivision construction. We also noted that prior-approval covenants necessarily and properly include aesthetic considerations not susceptible of absolute standards. Town & Country Estates, 740 P.2d at 671. While the term “harmony of external design” was not per se ambiguous, we determined that it was too vague to be enforceable absent defined standards of approval. Town & Country Estates, 740 P.2d at 671. On that basis, we concluded on the record before us that “neither a uniform standard of design, nor a general plan regarding “harmony of external design’ ” existed. Town & Country Estates, 740 P.2d at 671.

Our statement and application of the “maintain and enhance” and “general plan or scheme” principles in Town & Country Estates occurred in the context of a prior-approval covenant to which those principles had a substantially direct relationship. Such a context is lacking in the present case. Here, as discussed above, Covenant II(Q) is neither ambiguous per se nor vague as a result of the absence of quantifiable and objective standards of approval. Thus, the referenced Town & Country Estates principles are of limited applicability in the case presently before us.

Moreover, it is clear that the Town & Country Estates principles are not ironclad rules susceptible of concrete and clear application. Covenants are generally “valid if they tend to maintain or enhance the character” of the property and are “used in connection with some general plan or scheme.” Town & Country Estates, 740 P.2d at 671 (emphasis added). To the extent the “maintain and enhance” and “general plan or scheme” principles apply in a given case, it is sufficient that the particular covenant at issue generally can be said to further, and not be at odds with, the stated purpose of the protective covenants. Such a covenant tends to maintain and enhance the character of the property and is being used in connection with a general plan or scheme, as required by Town & Country Estates.

Subsequent to Town & Country Estates, we decided Hillcrest. There, the defendants had completed construction of a garage on their subdivision lot in late 1980 or early 1981; by 1987, no residence had been built and the homeowners’ association filed suit contending that the garage violated a covenant restricting use of the lot to residential purposes. Hillcrest, 778 P.2d at 422. The district court concluded that the garage did not violate the covenant and the association appealed, contending that a garage by itself, without a residence, was inconsistent with the “residential purposes” limitation. Hillcrest, 778 P.2d at 422.

In setting forth the principles applicable to our interpretation of restrictive covenants, we first cited to Town & Country Estates for the proposition that such covenants are generally valid if they tend to maintain or enhance the character of a particular subdivision; we then enunciated the principles that covenants must be construed to give their language its ordinary and popular meaning and that plain and unambiguous language will control our interpretation. Hillcrest, 778 P.2d at 422-23. We construed the ordinary meaning of the term “residential purposes” and concluded that a garage not used in conjunction with a residential dwelling violated the covenant at issue. Hillcrest, 778 P.2d at 423. Although we made a passing reference to the “maintain or enhance” principle, we did not apply it when faced with covenant language which was plain and unambiguous. Here, as in Hillcrest, we have concluded that the covenant at issue is plain and unambiguous; thus, the approach we used in Hillcrest is more directly applicable to the case presently before us than that used in Town & Country Estates.

We recognize, and have stated above, that a covenant which is clearly at odds with the stated purpose of the overall covenants and the general plan for the properties subjected to those covenants cannot be enforced. The reason is that such a covenant, no matter how plain and unambiguous the language, cannot be harmonized with the overall covenants of which it is a part. In such a circumstance, interpreting and enforcing only the plain language of one covenant would violate our obligation to read the covenants as a whole rather than reading any one covenant in isolation. See Hillcrest, 778 P.2d at 422-23; Gosnay, 666 P.2d at 1250 (citation omitted).

Conversely, however, we are obligated to enforce a covenant containing plain and unambiguous language wherever possible as a result of our obligation to refrain from inserting language not contained therein (Higdem, 536 P.2d at 1189) and because covenants are generally binding, by their terms and pursuant to § 70-23-506, MCA, on each owner of property subject to the covenants. Thus, a plain and unambiguous covenant will be upheld if it is possible to harmonize it with the general plan for the property which is stated as the purpose of the overall covenants.

Here, Covenant II(Q) is plain and unambiguous in prohibiting the installation of television satellite receiving dishes by individual lot or unit owners. It is not at odds with the general plan for the village of St. Marie, as stated in the Protective Covenants, of maintaining a uniform character, use and development of the overall community. Moreover, Covenant II(Q) generally can be said to further that purpose by limiting the number and location of receiving dishes. While Jarrett contends that the installation by VPI’s designate of three ten-foot satellite dishes at Unit 192-A of the village of St. Marie undercuts Covenant II(Q)’s validity in some way, such installation tends to maintain the uniform character and development of the property by concentrating the installations in one location. Nothing more is required of a plain and unambiguous covenant. We conclude, therefore, that Covenant II(Q) is sufficiently connected to a general plan for the uniform and stable character and development of the village of St. Marie and that the District Court erred in concluding otherwise.

In summary, the District Court erred with regard to each of the conclusions upon which it based its ultimate conclusion that Covenant II(Q) is void and unenforceable. We hold, therefore, that the District Court also erred in granting Jarrett’s motion for summary judgment on that basis.

2. Is VPI entitled to summary judgment?

In the usual summary judgment case where we reverse an order of the district court granting summary judgment, that resolution is based on our conclusion that genuine issues of material fact exist which preclude the moving party’s entitlement to judgment as a matter of law. Under that circumstance, a reversal of the district court necessitates a remand for trial in which the factual issues will be determined by the trier of fact. Where all of the facts bearing on the resolution of the legal issues are before us, however, this Court has the power to reverse a district court’s grant of summary judgment and direct it to enter summary judgment in favor of the other party. Matter of Estate of Langendorf (1993), 262 Mont. 123, 128, 863 P.2d 434, 438; Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 386, 849 P.2d 203, 210.

As stated above, the parties in the present case agree that the material facts are undisputed. We concluded in Issue 1 that Covenant II(Q) is clear and unambiguous in prohibiting installation of television satellite receiving dishes except by VPI or its designate and that it is sufficiently connected to the general plan for the village of St. Marie to be enforceable. Based on those conclusions, we hold that VPI is entitled to summary judgment in its favor on the enforceability of Covenant II(Q).

3. Did the District Court abuse its discretion in issuing a permanent injunction enjoining enforcement of Covenant II(Q)?

We review a district court’s grant or denial of an injunction to determine if the court abused its discretion. See Butler v. Germann (1991), 251 Mont. 107, 114, 822 P.2d 1067, 1072; Sampson v. Grooms (1988), 230 Mont. 190, 194, 748 P.2d 960, 963. In addressing the foregoing issues, we held that the District Court erred in granting Jarrett summary judgment and, further, that VPI is entitled to summary judgment in its favor on the enforceability of Covenant II(Q). On those bases, we also hold that the District Court abused its discretion in permanently enjoining VPI from enforcing Covenant II(Q).

We reverse the District Court’s grant of summary judgment in Jarrett’s favor and vacate its related award of attorney’s fees. We remand for entry of summary judgment in favor of VPI on the enforceability of Covenant II(Q) and for proceedings on VPI’s entitlement to attorney’s fees pursuant to the Protective Covenants.

JUSTICES NELSON, TRIEWEILER and ERDMANN concur.

JUSTICE LEAPHART,

dissenting.

I dissent. As the District Court correctly concluded, the restrictive covenant at issue is not tied to a common plan or scheme for the Village of St. Marie, and it confers a personal benefit upon the designate — in this case the brother of the developer who drafted the covenants. Paragraph II(Q) of the restrictive covenants provides that:

No television satellite receiving dishes shall be placed on any portion of the property except by Valley Park, Inc. or its designate. Radio and television antennas and aerials may be placed on the property as approved by the architectural committee.

Thus, as the covenant makes clear, satellite dishes are not prohibited by the covenants. Rather, the covenant merely requires that the satellite dishes must be installed by VPI or its designate. Further, there is no absolute prohibition against radio and television antennas and aerials which are arguably more unsightly than the 18” DSS dish at issue here. If, as the Court asserts, Paragraph II(Q) is enforceable because it is tied to, or enhances, the common plan or scheme of the development there must first be some common plan or scheme. As Paragraph II(Q) demonstrates, there is no such common plan or scheme — antennas and aerials may be installed on the property. More interestingly, so can satellite dishes as long as they are installed by VPI or its designate. Clearly, there is no uniform plan to be maintained where antennas and aerials may be installed on the condominium units.

As the District Court aptly noted, the covenant:

does not clearly connect the restriction to any general plan or scheme.... There is no statement whatsoever within the covenants that shows how the restrictions on the use of television satellite receiving dishes is connected to this stated purpose. Rather, it appears that the restrictive covenant exists merely to meet the developer’s promise to provide exclusive television satellite service to a family member.

The fact that only VPI, the developer, or its designate, may install satellite dishes appears to be an exclusive franchise granting VPI and/or the designate a personal benefit not tied to the common plan of the Village of St. Marie.

As the Court recognizes, restrictive covenants are valid “if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme.” Town & Country Estates, 740 P.2d at 671. Although the Court speculates that Paragraph II(Q) “tend[s] to maintain or enhance the character” of the property and is connected to a common plan or scheme, this speculation is insufficient to enforce the covenant — especially when coupled with the District Court’s specific finding that the restrictive covenant served only to fulfil a personal promise to a family member. Satellite dishes are permitted in the development if installed by VPI or its designate. Further, the architectural committee approved Jarrett’s request for a television antenna. I fail to see how lending our judicial imprimatur to an exclusive franchise contributes to the common plan or scheme as required by Town & Country Estates.

Restrictive covenants which serve a valid purpose of mutual benefit to all lot owners are enforceable; restrictions that inure solely to the benefit of the developer at the expense of the owner’s unrestricted use and enjoyment of their premises are not. DeWolf v. Usher Cove Co. (D. R.I. 1989), 721 F. Supp. 1518, 1531 (citing Urban Farms, Inc. v. Seel (N.J. Sup. Ct. App. Div. 1965), 208 A.2d 434, aff’d, 217 A.2d 888 (1966)). The covenant at issue here falls into the second category and, as the District Court correctly concluded, it is not enforceable. Accordingly, I would affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICE HUNT join in the foregoing dissent of JUSTICE LEAPHART.