text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES HOWELL, Defendant and Appellant.
    No. 97-243.
    Submitted on Briefs January 15, 1998.
    Decided February 9, 1998.
    1998 MT 20.
    55 St.Rep. 72.
    287 Mont. 268.
    954 P.2d 1102.

      For Appellant: Deirdre Caughlan, Attorney at Law, Butte.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena; Robert M. McCarthy, County Attorney; Samm Cox, Deputy County Attorney, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Charles Howell (Howell) was convicted of attempted deliberate homicide and appeals from the Second Judicial District Court’s findings of fact, conclusions of law, judgment and order. We affirm.

¶2 We address the following issues on appeal:

¶3- 1. Did the District Court err in refusing to instruct the jury on the offense of attempted mitigated deliberate homicide?

¶4 2. Did the District Court err in refusing to instruct the jury on the offenses of aggravated and felony assault?

Factual and Procedural Background

¶5 On April 1, 1996, Howell and his roommate, Gary Cargle (Cargle) were at their residence in Butte, Montana. At about 5:30 p.m., Jim Oliver (Oliver) and his girlfriend Amanda Stanwood (Stan-wood) stopped by to visit Howell. Oliver and Stanwood had been drinking at several casinos earlier that afternoon and brought a gallon jug of wine and some beer with them to Howell’s. Howell, Cargle, Oliver, and Stanwood proceeded to drink and socialize for several hours.

¶6 Later in the evening, Howell went into the kitchen and began fixing dinner. Howell testified that after putting some chicken in the oven, he went upstairs and got in the shower. In the meantime, Cargle, Oliver, and Stanwood became involved in a conversation about religion. At this point, the parties’ versions of events differ.

¶7 Stanwood and Oliver testified that Cargle became upset at a comment that Stanwood made about religion, walked over to Stan-wood, and punched her in the mouth. Cargle was unavailable at trial, but his tape-recorded statement was admitted into evidence. Cargle stated that it was Oliver, not he, who punched Stanwood. Cargle claimed that Oliver began pushing Stanwood and that he tried to get between Oliver and Stanwood. All parties agree that Oliver jumped on top of Cargle and began hitting him.

¶8 Howell testified that while he was in the shower, he heard Cargle screaming for help. He opened the shower door, put on a pair of cut-offs, and ran down to the living room. He stated that he found Oliver on top of Cargle, “beating the hell out of him.” Cargle is a disabled veteran and does not have full use of one of his arms. Howell testified that he saw Oliver beating Cargle and was afraid that Cargle had no way to defend himself. Howell testified that he tried to shove Oliver off of Cargle, but that Cargle knocked him against the wall.

¶9 Howell testified at trial that he then went into the kitchen and grabbed a knife. He admitted that he returned to the living room with the knife and came up behind Oliver. Howell testified at trial, “I put the knife to his throat and told him to get off.” However, later in his testimony, Howell stated that Oliver had attacked him and that he fell to the floor with Oliver on top ofhim. He stated that he had the knife in his hand and when he pulled his arm away, Oliver may have been cut.

¶10 Stanwood testified at trial that Howell was sitting in the living room at the time the altercation began. She stated that after Oliver and Cargle began fighting, Howell came up behind Oliver with a knife. She stated that Howell pulled Oliver’s head back and cut him ear to ear. Stanwood grabbed Oliver, put her hand over his throat, and drove him to the emergency room.

¶11 At the emergency room, Oliver was treated by Dr. Richard Gould. Dr. Gould testified that Oliver had lacerations on his hand and fingers. The laceration on Oliver’s neck extended from ear to ear through the layers of skin, fat, and muscle. The cut was of uniform depth and came within one millimeter of Oliver’s carotid artery and jugular vein. The cut on Oliver’s neck had to be stapled closed.

¶12 After receiving a report of the altercation, two police officers were dispatched to Howell’s residence. They noticed blood on the sidewalk outside of the house and on the front door. After the officers knocked on the door several times, Howell answered. Inside, the officers found blood on the walls and door and a large pool of blood on the living room floor. Cargle had blood on his shirt, pants, and shoes. Howell did not have any blood on him.

¶13 In the kitchen, an officer found a large kitchen knife on the counter, which was later found to have blood on it consistent with Oliver’s. There were no signs that food was being prepared. In the bathroom the officers noticed blood on the toilet bowl and sink and a bucket of ammonia water and rags on the floor. The officers also testified that when they arrived, there was a load of laundry in the washing machine.

¶14 Howell told the officers that Oliver and Stanwood had gotten into an argument and that he had asked them to leave. When questioned further, Howell stated that Oliver had assaulted Cargle and that he had tried to push Oliver off of Cargle. Howell told the officers that he was not sure whether Oliver had been cut, but that he thought Stanwood may have cut Oliver.

¶ 15 Howell was charged by information with attempted deliberate homicide in violation of §§ 45-4-103(1) and 45-5-102(l)(a), MCA. Prior to trial, the District Court granted Howell’s motion for a psychological examination. Howell was examined by Dr. Bernard Peters, who testified at trial. Dr. Peters testified that Howell suffers from depressive disorder, but that no signs or symptoms of the depressive disorder appeared to be manifest at the time of the crime. Dr. Peters concluded that Howell’s consumption of alcohol was the main factor in the incident.

¶16 A jury found Howell guilty, and he was sentenced to 25 years, plus 2 years, suspended, for the use of a weapon. He appeals from this judgment.

Standard of Review

¶17 A criminal defendant is entitled to have the jury instructed on each issue or theory that is supported in the evidence. State v. Gopher (1981), 194 Mont. 227, 229, 633 P.2d 1195, 1196. This Court reviews jury instructions in criminal cases to determine whether the instructions as a whole fairly instruct the jury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 870 P.2d 734.

Discussion

¶18 1. Did the District Court err in refusing to instruct the jury on the offense of attempted mitigated deliberate homicide?

¶19 Under Montana law, a criminal defendant “may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the offense charged.” Section 46-16-607(1), MCA. The defendant is entitled to a jury instruction on a lesser included offense when one of the parties requests it and when the record contains evidence from which the jury could rationally find the defendant guilty of the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; State v. Castle (1997), [285 Mont. 363], 948 P.2d 688.

¶20 [4] A person commits the offense of deliberate homicide if he or she “purposely or knowingly causes the death of another human being.” Section 45-5-102(1), MCA. The defendant is guilty of mitigated deliberate homicide when he or she “purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. Thus, mitigated deliberate homicide is not a lesser included offense of deliberate homicide in the traditional sense, but rather is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. Section 45-5-103(2), MCA; see State v. Goulet (1997), 283 Mont. 38, 938 P.2d 1330. We have held that for a defendant accused of deliberate homicide to be entitled to an instruction on mitigated deliberate homicide, the defendant must put forth some evidence demonstrating that he or she acted under extreme mental or emotional stress for which there is reasonable explanation or excuse. State v. Heit (1990), 242 Mont. 488, 492, 791 P.2d 1379, 1382.

¶21 Howell argues that the District Court erred by refusing his proposed jury instruction on attempted mitigated deliberate homicide as the record contains sufficient evidence for a jury to convict him of this offense rather than of attempted deliberate homicide. Specifically, he argues that his testimony and that of Dr. Peters presented evidence that he was acting under the influence of extreme mental or emotional stress for which there was a reasonable explanation. We determine that the record is void of any such evidence.

¶22 After examining Howell, Dr. Peters testified that Howell had been hospitalized as a teen for personality disorder and aggression and that he still suffers from a depressive disorder. He testified that Howell’s disorder caused him to be hypersensitive to the behavior of others and to become easily irritated and angered. However, Dr. Peters concluded that “[a]t the time of the offense it did not appear that signs or symptoms of the depressive disorder were manifest.” He also noted that he found no evidence of psychotic-type thinking, hallucinations, or delusions. Dr. Peters concluded that “by using alcohol, [Howell] disinhibited his controls.”

¶23 This Court has repeatedly held that simply being intoxicated or angry does not support a finding of extreme mental or emotional stress for which there is a reasonable explanation or excuse. Goulet, 938 P.2d at 1332-33; State v. Williams (1993), 262 Mont. 530, 541, 866 P.2d 1099, 1106. Dr. Peters testified that while Howell does suffer from a personality disorder, his use of alcohol caused him to lose control and was the main, overriding factor in the incident.

¶24 Howell testified that he was afraid of Oliver because he knew him to be an aggressive drunk. He stated that when he saw Oliver attacking his defenseless friend, he felt he had to intervene. However, Howell’s anger or fear, without more, does not support a finding of extreme mental or emotional stress for which there is a reasonable explanation or excuse. Williams, 866 P.2d at 1106. Therefore, we hold that the District Court did not err in refusing Howell’s proposed instruction on attempted mitigated deliberate homicide.

¶25 2. Did the District Court err in refusing to instruct the jury on the offenses of aggravated and felony assault?

¶26 Howell argues that he was entitled to instructions on aggravated and felony assault. One commits the offense of aggravated assault “if the person purposely or knowingly causes serious bodily injury to another.” Section 45-5-202(1), MCA. A person commits the offense of felony assault “if the person purposely or knowing causes bodily injury to another with a weapon.” Section 45-5-202(2)(a), MCA. Assault is a lesser included offense of the crimes of deliberate homicide and attempted deliberate homicide. See State v. Sellner (1997), [286 Mont. 397], 951 P.2d 996; Castle, 948 P.2d at 691.

¶27 In Castle, the defendant was charged with deliberate homicide. The testimony at trial established that the defendant punched the victim three times in the jaw and once on the side of the head, but that another man stabbed the victim several times and kicked the victim in the head. Castle, 948 P.2d at 691. The pathologist who examined the victim testified that the causes of death were stabbing and severe blunt force injuries to the head. He stated that the type of blows that caused this injury were not simple punches or even the type of punch that would normally be inflicted by a boxer. Castle, 948 P.2d at 691.

¶28 The district court refused the defendant’s request for jury instructions on assault. On appeal, we held:

Although this Court holds that assault is an included offense, that does not mean that an instruction on this offense must be given every time a defendant is charged with deliberate homicide. Rather, there must be some basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater offense.

Castle, 948 P.2d at 691. We determined that the testimony and medical evidence were consistent with the defense theory that, although the defendant punched the victim, those blows only amounted to assault and did not cause his death. We held that the district court erred in not instructing the jury on assault. Castle, 948 P.2d at 692.

¶29 In contrast, there is no evidence in this case that any person other than Howell caused Oliver’s injuries. Howell admitted that he came up behind Oliver and put a knife to his throat. However, Howell stated that Oliver fell on top of him and was cut accidentally when Howell pulled his arm away. Stanwood testified that she saw Howell pull Oliver’s head back and slit his throat. Thus, all parties agree that Howell cut Oliver, and the only disputed issue is whether the record contains any evidence that Howell intended to inflict bodily injury rather than death.

¶30 A similar challenge was raised in Sellner, 951 P.2d at 998. In that case, Sellner was convicted of attempted deliberate homicide in the shooting of a police officer. Police officers went to Sellner’s home to investigate a reported assault. As the police officers were driving away, they spotted Sellner riding in a vehicle and proceeded to pull that vehicle over. Sellner, 951 P.2d at 997. Sellner jumped out of the vehicle and ran into the woods. An officer followed and shouted for Sellner to stop, but Sellner turned and shot the officer in the chest with a .41 caliber handgun. The officer, who was wearing a bulletproof vest, survived the shooting. Sellner, 951 P.2d at 999.

¶31 At trial, Sellner admitted that he shot at the officer several times, aiming at the officer’s chest. Sellner, 951 P.2d at 999. Sellner testified that he had heard a voice telling him that the officer was wearing a vest and that if he shot him in the chest he would not hurt him. A physician testified at trial that the officer’s injuries would likely have been fatal had he not been wearing the bulletproof vest. Sellner, 951 P.2d at 999.

¶32 The district court refused to instruct the jury on assault, and Sellner was convicted of attempted deliberate homicide. Sellner, 951 P.2d at 998. On appeal, this Court held: “From the evidence presented at trial, it would be irrational to conclude that Sellner’s shooting of Parcell in the chest with a large caliber soft-point bullet was done with any intent other than to cause a person’s death.” Sellner, 951 P.2d at 999. We determined that Sellner’s testimony, that voices had assured him the officer would not be hurt, if believed, would support an acquittal, not a conviction for assault. Sellner, 951 P.2d at 999.

¶33 Likewise, in this case, the testimony in the record and the medical evidence do not support an instruction on aggravated ór felony assault. The injuries inflicted were nearly fatal. The laceration on Oliver’s neck extended through skin, fat, and muscle and was within one millimeter of Oliver’s carotid artery and jugular vein. Dr. Gould testified: “You could not get [a] more uniform [cut] without trying.”

¶34 The record contains no evidence that Howell intended to inflict bodily injury rather than to cause the death of Oliver. Howell admitted to threatening Oliver with a knife and testified at trial:

I was behind him but I put the knife to his throat and told him to get off, I hadn’t used the knife. Listen, I like Jim Oliver, but when you threaten, you threaten, you show him you mean it or he’s going to get up and kick the shit out of me.

Howell then stated that he did not intend to injure Oliver, but cut him accidentally. This theory, if accepted, would support an acquitted, not a conviction for assault. Therefore, we hold that the District Court did not err in refusing to instruct the jury on aggravated or felony assault.

¶35 Based on the foregoing, we affirm the decision of the District Court.

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


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LAWRENCE SHANE LAFLEY, Defendant and Appellant.
    No. 97-196.
    Submitted on Briefs January 15, 1998.
    Decided February 10, 1998.
    1998 MT 21.
    55 St.Rep. 76.
    287 Mont. 276.
    954 P.2d 1112.

      For Appellant: Deirdre Caughlan, Attorney at Law, Butte.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Micheál Wellenstein, Assistant Attorney General, Helena; Robert M. McCarthy, Silver Bow County Attorney; Eileen Joyce-Smith, Deputy County Attorney, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Shane Lafley (Lafley) appeals from the January 9, 1997judgment and order of the Second Judicial District Court, Silver Bow County. Lafley was convicted of felony assault and sentenced to 10 years in the Montana State Prison plus 2 years for the use of a dangerous weapon pursuant to § 46-18-221(1), MCA. We affirm.

¶2 Lafley raises the following issues on appeal:

¶3 1. Did Lafley establish the elements of the defense of justifiable use of force?

¶4 2. Did the District Court violate the law by sentencing Lafley to an additional 2 years imprisonment for his use of a dangerous weapon in the commission of the crime?

Factual and Procedural Background

¶5 On June 15,1996, Gerald Carey (Carey) and his wife Chris met several friends, including Dan Lehti (Lehti) and Don Leverton (Lever-ton), at the Arizona Bar in Butte, Montana. Shortly before midnight, Lafley and two other men, Terry LaVelle (LaVelle) and Immanuel Pausanos (Pausanos), entered the bar and asked Carey and his group for help in jump-starting their vehicle. The Careys refused to help Lafley because he was loud, obnoxious, and seemed intoxicated. Lafley admitted that he had consumed about twelve cans of beer from noon until the time he arrived at the Arizona Bar. The bartender refused to serve Lafley and asked his group to leave.

¶6 Lafley asked to use the phone behind the bar and stood on the back of Chris Carey’s stool while making his call, bumping and crowding her. When he hung up, the Carey group asked Lafley and his friends to leave the bar. They refused, and Carey and Lehti pushed Lafley, LaVelle, and Pausanos out of the bar. All parties agree that no punches were thrown at this time.

¶7 Soon after, the bartender saw Lafley outside attempting to jump-start his car and noticed that one of his group was yelling at patrons as they attempted to come into the bar. The bartender called the police, and Butte police officer Jim Jemmings was dispatched to the scene. Officer Jemmings testified that Lafley and LaVelle seemed intoxicated. Lafley asked the officer if he would jump-start his vehicle, and Officer Jemmings told them to leave their vehicle and walk home or he would arrest them for driving under the influence of alcohol.

¶8 While the officer was speaking to Lafley, Carey and his friends attempted to approach them. Officer Jemmings testified that he told the Carey group to stay on their side of the street and that they complied. Officer Jemmings stated that he waited at the scene until the Lafley group had left and that no altercations occurred at that time. However, Lafley testified that Carey punched Pausanos while Officer Jemmings was at the scene, but the officer refused to arrest him.

¶9 Lafley, LaVelle, and Pausanos left the scene and proceeded to walk home. At home, Lafley called the 911 police dispatch center and told the operator that he had a 9mm pistol and intended to return to the Arizona Bar and “settle the score.” The dispatcher traced the call and sent Officer Jemmings and Lieutenant Jeffrey Miller to speak with Lafley. Lafley admitted that he had made the call, but assured the officers that he did not own a gun and did not intend to shoot anyone. The officers advised Lafley not to return to the bar as it would only create further problems.

¶10 Against the officers’ advice, Lafley returned to the bar around 1:30 a.m. accompanied by LaVelle’s 16-year-old son. Lafley testified at trial that he walked into the bar and asked the bar patrons: ‘What is your guys’s problem?” He testified that Leverton then hit him in the face and pushed him onto a pool table. Lafley stated that Carey came toward him and, as Lafley pushed him away, Carey tripped over a bar stool and fell. Lafley testified that Lehti jumped on him and pushed him to the ground and that several others held him down.

¶ 11 The testimony of all of the other witnesses contradicts Lafley’s story. Mrs. Carey testified that she saw Lafley run into the bar toward her husband carrying a metal table leg. She stated that Lafley swung at Carey, hit him, and knocked him off of his stool. Mrs. Carey testified that two or three bar patrons then got on top of Lafley and took his weapon. Mrs. Carey testified that at no time did her husband or anyone else in the bar do anything to provoke the attack and that Lafley was only struck by other bar patrons after he had struck Carey. ¶12 Carey testified that he was sitting at the bar talking to the bartender when two men came in the door and rushed over to where he was sitting. He next recalls being hit across the top of his back and shoulders with something hard and being knocked off of his bar stool. He testified that he then saw someone hit Lehti and that he and Leverton tackled the assailant and took the weapon from him.

¶13 The bartender testified that he was counting the money in the till when he heard someone yelling. In the mirror behind the bar, he saw a man carrying an object that looked like a long, black pipe run toward Carey and start into a full swing. When the bartender turned around, Carey was on the ground. The bartender testified that Leverton then tackled Lafley. The bartender stated he pushed the hold-up alarm to alert the police and took the weapon from Lafley. ¶14 Lehti testified that he was in the restroom when Carey was allegedly attacked, but that when he exited the restroom, Lafley was in front of him with a “club” in his hand. Lehti testified that Lafley hit him with the weapon, knocking him to the floor, and then hit him again. Lehti then saw Leverton and another person tackle Lafley. Carey, Leverton, and Lehti all testified that no physical altercation occurred in the bar prior to Lafley’s striking Carey.

¶15 Carey suffered a ruptured spleen as a result of the incident and spent eight days in the hospital. A doctor testified at trial that Carey’s injuries were caused by a strike to his side, consistent with being hit with a blunt object.

¶ 16 Officer Jemmings testified that when he arrived at the Arizona Bar, several people were holding Lafley down on the ground and that Mrs. Carey told him that Lafley had hit her husband with a pipe. Lieutenant Miller testified that someone handed him a metal table leg and told him that Lafley had used it to hit Carey in the back. The officers arrested Lafley for assault. In an interview with Officer Jemmings the next morning, LaVelle’s son stated that Lafley was carrying a weapon on the way to the bar and that he accompanied Lafley to the bar to act as Lafley’s “backup.” At trial, he denied these statements.

¶ 17 Lafley was charged by information with aggravated assault in violation of § 45-5-202(2)(a), MCA. A jury found Lafley guilty of assault, and he was sentenced to 10 years in the Montana State Prison plus 2 years for the use of a dangerous weapon.

Discussion

¶ 18 1. Did Lafley establish the elements of the defense ofjustifiable use of force?

¶19 Lafley argues that the jury erred in finding that he did not meet his burden of proving the defense of justifiable use of force at trial. We review a jury’s verdict to determine whether the verdict is supported by substantial credible evidence. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913 P.2d 641, 646.

¶20 Adefendant is justified in the use of force “against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” Section 45-3-102, MCA. A defendant who raises this defense has the burden of producing sufficient evidence on the issue to raise a reasonable doubt as to his or her guilt. State v. Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173, 181.

¶21 When the defendant is the aggressor, however, the defense of justifiable use of force is only available in two very narrow circumstances. Section 45-3-105, MCA, states:

The justification described in 45-3-102 through 45-3-104 is not available to a person who:
(1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or
(2) purposely or knowingly provokes the use of force against himself, unless:
(a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or
(b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force.

The overwhelming weight of the evidence in this case supports a finding that Lafley was the aggressor in the altercation occurring at the Arizona Bar.

¶22 Barring Lafley, all of the eyewitnesses testified that Lafley entered the Arizona Bar and, unprovoked, struck Carey in the side with a metal table leg. The bartender, Carey, Mrs. Carey, and Lever-ton all testified that no physical, or even verbal, altercation occurred prior to Lafley’s striking Carey. The record contains evidence that Lafley proceeded to strike Lehti, at which time Carey and Leverton tackled him to the ground. When the police officers arrived at the scene, they recovered a metal table leg and were told that Lafley used it to strike Carey. Lafley’s testimony is that he was attacked by all of the bar patrons when he walked into the bar. However, the jury was free to disbelieve his testimony. See State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686 (holding that a jury’s determinations of credibility will not be disturbed on appeal). We determine that the jury had sufficient evidence to find that Lafley was the aggressor and, thus, that § 45-3-105, MCA, applied.

¶23 Under § 45-3-105, MCA, an aggressor is justified in his use of force only when he believes he is in imminent danger of death or serious bodily injury and has exhausted every reasonable means of escape or when he first makes a good faith attempt to withdraw from the altercation. Lafley argues that assuming his entry into the Arizona Bar made him the aggressor, “once all the patrons of the bar converged upon him and began beating him, he lost his status as aggressor and his ability to withdraw from the altercation.” However, this argument ignores the evidence of Lafley’s aggressive conduct prior to the bar patrons’ attacking him. Several witnesses testified that physical force was used against Lafley only after he, immediately upon entering the bar, struck Carey and Lehti.

¶24 The exceptions whereby an aggressor may justifiably use force assume that the aggressor, before engaging in the use of force in question, has exhausted all means of escape or has attempted to withdraw from the force being inflicted upon him. In the present matter, the record indicates that Lafley’s assaultive conduct was completely unprovoked; it was not in response to any threat to Lafley nor did it follow any attempt by Lafley to escape or withdraw. Therefore, we hold that the record contains substantial credible evidence to support the jury’s verdict.

¶25 2. Did the District Court violate the law by sentencing Lafley to an additional 2 years imprisonment for his use of a dangerous weapon in the commission of the crime?

¶26 In a direct appeal, the defendant is limited to those issues that were properly preserved in the district court and to allegations that the sentence is illegal or exceeds statutory mandates. Section 46-20-104, MCA; State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997. We have held that “a sentence is not illegal when it is within the parameters provided by statute.” State v. Gunderson (1997), 282 Mont. 183, 187, 936 P.2d 804, 806; see also State v. Goulet (1996), 277 Mont. 308, 921 P.2d 1245; State v. Nelson (1995), 274 Mont. 11, 906 P.2d 663.

¶27 Lafley challenges his sentence of 2 years imprisonment for the use of a weapon in the commission of the assault, arguing that it constitutes double jeopardy and is cruel and unusual punishment. However, Lafley did not challenge his sentence in the District Court. Further, under § 46-18-221, MCA, a person who uses a dangerous weapon in the commission of an offense may “be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years. ...” Thus, the sentence imposed by the District Court is within the statutory parameters. Because Lafley did not challenge his sentence in the District Court and is not challenging the legality of the sentence, we hold that he is barred from raising this issue on appeal.

¶28 Based on the foregoing, we affirm the decision of the District Court.

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


author: JUSTICE NELSON

text:
    JAMES ANDERSON, Defendant-Appellant, v. KEENAN ENGELKE, WILBER-ELLIS COMPANY, and MINOT CASH SALES, Plaintiffs-Respondents.
    No. 97-417.
    Submitted on Briefs December 18, 1997.
    Decided February 10, 1998.
    1998 MT 24.
    55 St.Rep. 86.
    287 Mont. 283.
    954 P.2d 1106.

      For Appellant: Reid Peyton Chambers, Kyle T. Nayback, Sonosky, Chambers, Sachse & Endreson, Washington, D.C.; Mary L. Zemyan, Wolf Point.
    For Respondent: Laura Christoffersen, Christoffersen & Knierim, Wolf Point.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal from the District Court’s findings of fact, conclusions of law and judgment issued March 24, 1997, in two separate causes of action filed in the Fifteenth Judicial District Court, Roosevelt County. The appeals of the court’s decisions were consolidated for purposes of our review. We reverse and. remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 The two cases filed in District Court are procedurally and factually similar. Plaintiffs in Cause No. 96-DV-11026 are Wilber-Elhs Company and Minot Cash Sales. The plaintiff in Cause No. 96-DV-11027 is Keenan Engelke. All of these parties are hereinafter referred to collectively as plaintiffs. Plaintiffs are non-Indian residents of Roosevelt County; they obtained separate judgments against defendant James Anderson (Anderson) in the Fort Peck Tribal Court on July 9, 1996. Anderson is an enrolled member of the Fort Peck Tribes living within the exterior boundaries of the Fort Peck Reservation.

¶3 Plaintiffs Wilbur-Ellis Company and Minot Cash Sales obtained a judgment for $5,460 plus costs for Anderson’s purchase of cattle feed supplement. Plaintiff Engelke obtained a judgment in the amount of $6,543 plus costs for dirt work which Engelke performed in developing water sources in Anderson’s pastures. The underlying transactions in each case arose within the Reservation boundaries.

¶4 Having obtained judgments in the Fort Peck Tribal Court, plaintiffs then brought suit in the Montana Fifteenth Judicial District Court against Anderson pursuant to the Uniform Foreign Money-Judgments Recognition Act, codified at Title 25, Chapter 9, part 6, MCA (1995) (the Recognition Act). Plaintiffs requested that the District Court enter its order recognizing the Tribal Court judgments and granting full faith and credit to said judgments with rights of full enforcement pursuant to Montana law. Anderson entered a special appearance in each state court suit and moved to dismiss, claiming that the District Court had neither personal nor subject matter jurisdiction.

¶5 Following briefing and a hearing, the District Court entered its findings of fact, conclusions of law and judgment. The court ruled that the Fort Peck Tribal Court judgments must be recognized under the provisions of the Recognition Act because the Tribes fall within the definition of “foreign state” set out at § 25-9-602(2), MCA (1995). Additionally, the court concluded that even if the provisions of the Recognition Act do not apply to tribal court judgments, § 25-9-608, MCA (1995), does not prevent the recognition of a foreign judgment in situations not covered by the Act, and that, in this case, the District Court was required to recognize the Tribal Court judgments under the doctrine of comity and our decision in Wippert v. Blackfeet Tribe (1982), 201 Mont. 299, 654 P.2d 512.

¶6 Anderson then filed a timely motion for new trial and/or amendment of judgment. The Assiniboine and Sioux Tribes of the Fort Peck Reservation appeared amicus curiae in his support. The court did not rule on this motion, and, accordingly, it was ultimately deemed denied pursuant to Rule 59(d), M.R.Civ.P.

¶7 In the meantime, a state writ of execution was issued in each case commanding the Sheriff of Roosevelt County to satisfy the state court judgments through seizure of Anderson’s assets. Plaintiffs did not seek enforcement of the Tribal Court judgments through the Fort Peck Tribal Court. A nominal off-Reservation bank account balance was seized, but the main focus of the state execution proceedings was and is against Anderson’s on-Reservation assets. Anderson timely appealed.

ISSUE

¶8 The question which we must answer in this appeal is whether a state court can enforce a tribal court judgment within the exterior boundaries of an Indian reservation via state law and state execution proceedings. We answer this question in the negative.

DISCUSSION

¶9 Whether a state court has the power to utilize state law and execution procedures to enforce a tribal court judgment within the exterior boundaries of an Indian reservation is a question of law. We review legal questions de novo. We determine simply whether the court’s interpretation of the law is correct. Agri West v. Koyama Farms, Inc. (1997), 281 Mont. 167, 170, 933 P.2d 808, 810; Day v. Child Support Enforcement Div. (1995), 272 Mont. 170, 175, 900 P.2d 296, 299.

¶10 Anderson argues that the District Court has no power to enforce the two Tribal Court judgments within the exterior boundaries of the Fort Peck Reservation. He contends that, since he is an enrolled member of the Fort Peck Tribes, the state court does not have personal jurisdiction over him. Anderson also argues that since the subject matter of the Tribal Court suits both involve transactions arising on the Reservation, the state court does not have subject matter jurisdiction either. Anderson maintains that the Fort Peck Tribal Court is the only court with authority to enforce judgments against Tribal members on the Reservation. He points out that the Tribal Court is open to non-Indian judgment creditors. He also emphasizes that the procedures for enforcement of judgments under Montana law contain numerous differences from the Tribal execution procedures and exemptions contained in the Fort Peck Comprehensive Code of Justice, and that the latter are generally more favorable to the judgment debtor.

¶11 Anderson also maintains that the District Court erred when it used the Recognition Act as a basis for its decision. He argues that, even assuming the Recognition Act applies, a state court recognizing a judgment under that statute still needs jurisdiction over the subject matter and over the parties to proceed with an enforcement action.

¶12 Furthermore, Anderson contends that the District Court erred in relying on our decision in Wippert. He points out that all parties in that case, including the Indian parties, had requested the state court to determine the validity of the judgment at issue. To the contrary, in the case at bar, Anderson does not consent, and, in fact, actively resists imposition of jurisdiction by the state court.

¶13 Finally, Anderson contends that even if the District Court did have jurisdiction, our decision in Agri West requires a district court to abstain in favor of enforcement of judgments in tribal court. (Since we have resolved this case on the basis of Anderson’s other arguments, we do not address this contention.)

¶14 Plaintiffs, on the other hand, maintain that under Wippert a judgment creditor may bring a suit in state district court to enforce a judgment of a tribal court. Plaintiffs contend that state courts, including Montana, generally have adopted the doctrine of comity in determining whether to enforce the judgments of foreign states, including tribal court judgments, and that the doctrine of comity is essentially codified in the provisions of the Recognition Act. Moreover, plaintiffs contend that recognition or enforcement of a foreign judgment, or in this case the Tribal Court judgments, does not rely upon personal jurisdiction over the defendant or subject matter jurisdiction over the underlying claim. Plaintiffs maintain that Anderson attempts to confuse jurisdiction in the original proceeding with jurisdiction to enforce the judgment rendered in a competent court.

¶15 With these arguments and the District Court’s decision in mind, we turn to the case law. “Indian law is uniquely federal in nature, having been drawn from the Constitution, treaties, legislation and an ‘intricate web of judicially made Indian law.’ ” Wilson v. Marchington (9th Cir. 1997), 127 F.3d 805, 813 (quoting Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 206, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209). Accordingly, recognition of tribal judgments, by necessity, requires that the ultimate decision governing the recognition and enforcement of a tribal judgment be founded upon federal law. Wilson, 127 F.3d at 813 (citations omitted).

¶16 It is well-settled that, absent the consent of all Indian parties, the state courts of Montana lack jurisdiction to adjudicate disputes arising from transactions within the exterior boundaries of an Indian reservation and involving tribal members. In Williams v. Lee (1959), 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251, 255-56, the Supreme Court declared tribal jurisdiction exclusive over a lawsuit arising out of on-reservation sales transacted between a non-Indian plaintiff and an Indian defendant. Accord Kennedy v. District Court (1971), 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507.

¶17 This Court has, likewise, confirmed that Montana’s courts have no subject matter jurisdiction over an action arising on an Indian reservation brought by a non-Indian plaintiff against an enrolled member of the tribe residing on the reservation. See for example, Security State Bank v. Pierre (1973), 162 Mont. 298, 511 P.2d 325; Milbank Mut. Ins. Co. v. Eagleman (1985), 218 Mont. 58, 705 P.2d 1117; and Geiger v. Pierce (1988), 233 Mont. 18, 758 P.2d 279.

¶18 The issue in the case at bar, however, is not whether the underlying transactions between plaintiffs and Anderson were subject to the jurisdiction of the state courts of Montana. Clearly, they were not. Here, the question involves the extent to which, if at all, a state court, using state law and by state execution procedures, can enforce a tribal court judgment within the exterior boundaries of an Indian reservation. To answer this question, we, again, turn to federal case law.

¶19 It is axiomatic that a court has the power to enforce its judgments within its own jurisdiction. However,

[n]o legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. Because states and Indian tribes coexist as sovereign governments, they have no direct power to enforce their judgments in each other’s jurisdictions.

Wilson, 127 F.3d at 807. This rule follows the rationale of the Supreme Court in Williams.

¶20 In Williams, the Supreme Court pointed out that “[e] ssentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams, 358 U.S. at 220, 79 S.Ct. at 271. In the case at bar, it is clear that the Tribal Court had exclusive jurisdiction over plaintiffs’ underlying actions against Anderson. Furthermore, the record is clear that the Fort Peck Tribes have established procedures, exemptions and other standards for enforcement and execution of Tribal Court judgments under Title IV, Chapter 3 of the Fort Peck Comprehensive Code of Justice. These procedures, exemptions and other standards, codify the Tribe’s policies on how judgments of the tribal court shall be executed. By and large, these procedures, exemptions and standards are more favorable to debtors than the procedures, exemptions and standards under Montana state law.

¶21 Where, as here, the Tribe has adopted a comprehensive body of law for enforcing the judgments of its courts, allowing Montana state courts to enforce Tribal Court judgments within the exterior boundaries of the Indian Reservation would run afoul of the Supreme Court’s decision in Williams, not to mention our decisions in Geiger, Milbank Mutual and Pierre. If, on the Reservation, a state court were to enforce a Tribal Court judgment utilizing the state’s own execution procedures and laws, the state would effectively replace the Tribe’s enforcement procedures with its own, and, thus, would plainly “undermine the authority of the tribal courts over Reservation affairs” and “infringe on the right of the Indians to govern themselves.” Williams, 358 U.S. at 223, 79 S.Ct. at 272. The result would be a substantial intrusion on Tribal governmental authority.

¶22 With that basic principle in mind, we also conclude that state courts may not enforce tribal court judgments within the exterior boundaries of an Indian reservation via the Recognition Act. The Recognition Act requires state courts to enforce foreign judgments in the same manner as the judgment of a sister state that is entitled to full faith and credit. Section 25-9-604, MCA (1995). A “foreign judgment” is “any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.” Section 25-9-602(1), MCA(1995). A“foreign state”is “any governmental unit other than the United States or any state, district, commonwealth, territory, or insular possession thereof or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands.” Section 25-9-602(2), MCA (1995).

¶23 In Day, we expressly reserved the question of whether the Recognition Act is applicable to Indian tribal court orders, judgments and decrees that do not involve child support. We also expressly declined to render any opinion with regard to the interplay between the Recognition Act, the Uniform Enforcement of Foreign Judgments Act (Title 25, Chapter 9, part 5, MCA) and our decision in Wippert as regards such orders, judgments and decrees which do not involve child support. Day, 900 P.2d at 300-01. Moreover, our further research has revealed no federal nor any state case authority under which an Indian tribal court judgment has been enforced, either on the reservation or off the reservation via the Recognition Act. We do not need to resolve this point one way or the other, however.

¶24 Even assuming, without deciding, that the Recognition Act may, under appropriate circumstances, be applicable to enforce a tribal court judgment, we cannot agree that this Act would be applicable in the case at bar. Here, plaintiffs seek to use the Recognition Act to enforce judgments originally entered by the Tribal Court. Plaintiffs seek to enforce such judgments, not within the jurisdiction of the state court, i.e., off-Reservation, but, rather, within the jurisdiction of the rendering court itself.

¶25 An example serves to illustrate this misapplication of the Recognition Act. Assume that a Montana creditor obtained a money judgment against a Canadian debtor in a Canadian court. Under the Recognition Act, Montana would be required to recognize and enforce the Canadian judgment in Montana in the same manner as the judgment of a sister state that is entitled to full faith and credit. The point to be made, however, is that while Montana coruts would have authority under the Recognition Act to enforce the Canadian judgment in Montana using Montana law and execution procedures, this state’s courts would have no jurisdiction to enforce the state judgment issued under the Recognition Act in Canada. Obviously, if the Montana creditor wished to enforce his judgment in Canada, then he would be required to comply with the execution procedures mandated by Canadian law and the Canadian courts.

¶26 In the same manner, and again assuming, without deciding, that a tribal court judgment is a “foreign judgment” from a “foreign state,” Montana state courts would have jurisdiction to enforce a tribal judgment via the Recognition Act within the jurisdiction of Montana’s courts, but not within the jurisdiction of the tribal court rendering the judgment in the first place nor within the jurisdiction of some other competent court. Montana courts have no power via the Recognition Act or otherwise to enforce a tribal court judgment within the exterior boundaries of an Indian reservation any more than they have the power to enforce a Canadian judgment in Canada or, for that matter, a Wyoming judgment in Wyoming. In short, to enforce a judgment within the jurisdiction of the court rendering it or within the jurisdiction of some other competent court, it is incumbent upon the person seeking to enforce the judgment that he or she comply with and utilize the procedures and law of the government and the court within whose jurisdiction enforcement is sought.

¶27 Accordingly, we conclude that the District Court erred in determining that the tribal court judgments at issue in this case could be enforced within the exterior boundaries of the Fort Peck Reservation via the Recognition Act. We leave for another day our decision on the question of whether the Recognition Act may be utilized to enforce Indian tribal court judgments, orders and decrees, not involving child support, off the Reservation. In this regard, however, we note that there already exist procedures outside the Recognition Act allowing state courts to enforce tribal court judgments off-reservation. See Wippert, 654 P.2d 512; Day, 900 P.2d 296. Thus, we are not inclined to .reach the applicability of the Recognition Act to tribal court judgments on the facts presented here.

¶28 Finally, we also conclude that the District Court’s reliance on our decision in Wippert is misplaced. In Wippert we held that the orders, judgments and decrees of an Indian tribal court are not entitled to full faith and credit, but are, nevertheless, to be treated with the same deference shown the decisions of foreign nations as a matter of comity. Wippert, 654 P.2d at 515. In Wippert, however, all parties to the underlying lawsuit in the tribal court thereafter, and without opposition, participated in the state court proceedings involving enforcement of the judgment. Wippert, 654 P.2d at 514-15. More importantly, Wippert did not directly address the precise issue presented in this appeal, and, thus, cannot be read for the proposition that a state court may enforce a tribal court judgment within the exterior boundaries of an Indian reservation using state law and state execution procedures where the Indian debtor actively resists imposition of the state court’s jurisdiction. While under Wippert, a state court may enforce a tribal court judgment outside of the exterior boundaries of the reservation on the basis of comity, see Wippert, 654 P.2d at 515; Day, 900 P.2d at 301, Wippert has no application to the enforcement by state courts of tribal judgments within the exterior boundaries of an Indian reservation where the tribal litigant resists state court jurisdiction.

¶29 To summarize, then, where the judgment debtor is a tribal member residing within the exterior boundaries of the reservation, tribal courts have exclusive jurisdiction to enforce tribal court judgments against assets owned by the tribal member and located within the exterior boundaries of the reservation. State courts may enforce tribal court judgments against tribal members living outside of the exterior boundaries of the reservation and against off-reservation assets owned by tribal members on the basis of comity, assuming that the holder of the judgment brings an action or special proceeding in district court. Wippert, 654 P.2d at 515. If the tribal court judgment involves child support, the simplified registration procedures of the Uniform Enforcement of Foreign Judgments Act and other state enforcement remedies are also available. Day, 900 P.2d at 301.

¶30 This cause is reversed and remanded to the District Court for further proceedings consistent with this opinion. Specifically, the District Court may give deference to the Fort Peck Tribal Court judgments by entering a state court judgment in favor of the plaintiffs and against Anderson on the basis of comity and upon the filing of an action or special proceeding in the District Court to enforce the Tribal Court judgments on that basis. The state court judgment may be enforced against any off-reservation assets owned by Anderson. The Fort Peck Tribal Court, however, retains exclusive jurisdiction to enforce its judgments against Anderson’s on-reservation assets within the exterior boundaries of the Fort Peck Reservation.

¶31 Reversed and remanded for further proceedings consistent with this opinion.

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


author: JUSTICE TRIEWEILER

text:
    MARCO AND COMPANY, LLC, d/b/a Managed Pharmacy Consultants, Plaintiff and Appellant, v. DEACONESS/BILLINGS CLINIC HEALTH SYSTEM, d/b/a Aspen Meadows Retirement Community, Defendant and Respondent.
    No. 97-562.
    Submitted on Briefs January 8, 1998.
    Decided February 12, 1998.
    1998 MT 26.
    55 St.Rep. 91.
    287 Mont. 293.
    954 P.2d 1116.

      For Appellant: Gerald B. Murphy, John T. Jones, Daniel D. Vermillion; Moulton, Bellingham, Longo & Mather, P.C.; Billings.
    For Respondent: Chris Mangen; Crowley, Haughey, Hanson, Toole & Dietrich, RL.L.R; Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The plaintiff, Marco and Company, LLC, d/b/a/ Managed Pharmacy Consultants (Marco), commenced this action in the District Court for the Thirteenth Judicial District in Yellowstone Comity to recover damages from Deaconess/Billings Clinic Health System, d/b/a Aspen Meadows Retirement Community (Deaconess) for breach of contract. Pursuant to the remedies provision of the contract, Marco petitioned the District Court for a decree of specific performance or an injunction to prevent Deaconess’s breach of contract. Marco also petitioned for a temporary restraining order to preserve the status quo. The District Court granted the temporary restraining order and ordered a show cause hearing to consider Marco’s petition for an injunction or specific performance. On August 6, 1997, the District Court issued its findings of fact and conclusions of law and order in which it denied Marco’s petition for a decree of specific performance and injunction and dissolved the temporary restraining order. The District Court held that the contract at issue was one for the sale of goods, not personal services, and that because Deaconess breached the agreement between the parties, Marco was entitled to money damages. Marco appeals the District Court’s order which awarded money damages but denied it specific performance or an injunction. We reverse the judgment of the District Court.

¶2 Marco raises the following issues on appeal:

¶3 1. Did the District Court abuse its discretion when it refused to enforce the language of the vendor agreement?

¶4 2. Did the District Court abuse its discretion when it refused to grant Marco relief from Deaconess’s breach of the vendor agreement and order of specific performance?

¶5 3. Did the District Court abuse its discretion when it refused to enjoin Deaconess from terminating the vendor agreement?

FACTUAL BACKGROUND

¶6 On August 1, 1995, John Marchiando, d/b/a/ Managed Pharmacy Consultants, entered into a vendor agreement with Aspen Meadows Limited Partnership and ComCare Incorporated for the sale of pharmaceuticals to the Aspen Meadows Retirement Community. This agreement was one of two agreements among the parties and, according to Marco, was reviewed by the parties, negotiated, and agreed upon after an extensive negotiation and revision process. John Marchiando subsequently assigned his interests in both agreements to Marco and Company, LLC, d/b/a Managed Pharmacy Consultants. Deaconess thereafter acquired full ownership of Aspen Meadows and Aspen Meadows Limited Partnership, and was assigned ComCare’s interests in the agreements.

¶7 Pursuant to the vendor agreement, Marco sold pharmaceuticals to Aspen Meadows residents and billed Aspen Meadows and its residents for the cost of the pharmaceuticals plus profit. Incidental to the primary purpose of the vendor agreement, which was to sell pharmaceuticals to the residents of Aspen Meadows, a Marco pharmacist would check for drug-to-drug interactions and occasionally deliver a prescription to Aspen Meadows. Marco received no payment for these incidental services.

¶8 On March 26, 1997, Deaconess notified Marco that it intended to terminate the vendor agreement on April 30, 1997. Deaconess’s termination was without cause and did not provide Marco with sixty days to cure any breach of its duties, as required by the terms of the contract. Pursuant to the remedies provision of the contract, Marco, as the non-breaching party, petitioned the District Court for a decree of specific performance, or, in the alternative, an injunction to prevent Deaconess’s breach of contract.

¶9 After breaching the vendor agreement, Deaconess attempted to elect the liquidated damages remedy by offering to pay Marco $7500. Marco rejected Deaconess’s offer based upon its right as the non-breaching party to elect an equitable remedy.

¶10 Marco petitioned the District Court for a temporary restraining order on April 29,1997, the day before Deaconess terminated the vendor agreement. The District Court granted the temporary restraining order until the District Court could hold a show cause hearing regarding Marco’s petition for an injunction or decree of specific performance.

¶11 The District Court held the hearing on May 7,1997, and issued its findings of fact and conclusions of law on August 7,1997. The court found that the vendor agreement is a contract for the sale of goods and that Deaconess did, in fact, breach the contract. Deaconess has not appealed from those findings. Despite these findings, the District Court denied Marco’s petition for an injunction and found that the agreement was not specifically enforceable.

¶12 The dispositive issue on appeal, therefore, is whether the District Court erred when it refused to enforce the language of the vendor agreement, and refused to order specific performance or issue an injunction. Because Deaconess did not cross-appeal any findings of the District Court, it is procedurally precluded from raising any issues not properly perfected for appeal.

¶13 Although Rule 14, M.R.App.R, provides for review of matters by cross-assignment of error, it does not eliminate the necessity of filing a cross-appeal. See Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268. We have held that when a respondent seeks review of matters separate and distinct from those sought to be reviewed by the appellant, a cross-appeal is necessary. See Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 334, 682 P.2d 695, 700. The matters over which Deaconess seeks review are matters separate and distinct from those raised by Marco. The issue raised in Marco’s appeal addresses only the application of the terms of the contract and the type of remedy provided by the judgment of the District Court. The issues raised in Deaconess’s brief, on the other hand, address the actual validity of the contract between the parties, the type of contract entered into, and the time period during which Deaconess was placed under a temporary restraining order. These issues, although related by the same transaction and events, are separate and distinct from the issue raised on appeal by Marco. Therefore, we conclude that a cross-appeal is necessary for our review of the additional issues presented by Deaconess. Because no cross-appeal was filed, we will not address these issues.

DISCUSSION

A. Enforcement of the Contract Terms:

¶14 The essential issue raised on appeal is whether the District Court abused its discretion when it refused to enforce the language of the vendor agreement. Because this first issue raised by Marco on appeal is dispositive, we will not review issues two and three.

¶15 The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. See 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, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

¶ 16 We have held that where the language of a contract is “clear and unambiguous there is nothing for the court to construe; the duty of the court is simply to apply the language as written to the facts of the case, and decide the case accordingly.” Carbon County v. Dain Bosworth (1994), 265 Mont. 75, 87, 874 P.2d 718, 726. We have further held that “[t]hose who enter a contract are charged with the responsibility of acquainting themselves with the agreement terms, and those who execute a written contract are presumed to know its contents and terms; they cannot obtain relief unless they show ambiguity in the contract, misinterpretation, or bad faith.” Carbon County, 265 Mont. at 88, 874 P.2d at 726. A court must not create a contract for the parties different from that actually entered into by them, unless the contract is a violation of public policy. See Hein v. Fox (1953), 126 Mont. 514, 520, 254 P.2d 1076, 1079. In Hein, we stated that “[t]he effect of a different rule would destroy in a large measure the value of written instruments as evidence, to encourage negligence, and to open the door for the substitution of parol for written evidence under the claim of mistake.” Hein, 126 Mont. at 520-21, 254 P.2d at 1080. To permit the avoidance of a written contract because the terms of the contract now appear burdensome or unreasonable would defeat the very purpose of placing a contract into writing. See Hein, 126 Mont. at 521, 254 P.2d at 1080.

¶17 Montana’s long-standing rule of contract interpretation requires that courts give effect to the meaning and intention of the parties as expressed in the language employed in the contract. See Hein, 126 Mont. at 520, 254 P.2d at 1079. Section 28-3-501, MCA, sets forth the manner of interpreting the words of a contract as follows:

The words of a contract are to be understood in their ordinary and popular sense rather then according to their strict legal meaning unless used by the parties in a technical sense or unless a special meaning is given to them by usage, in which case the latter must be followed.

The language of the contract provision at issue on appeal is as follows:

Default/Remedies. The failure by either party to perform any material provision of this Agreement shall constitute a default hereunder. In the event of such default, and the failure by such defaulting party to cure the default within the 60-day period described above, the non-breaching party shall be entitled to all remedies at law or in equity. The equitable remedies shall include but not be limited to the non-breaching party’s right to relief by temporary restraining order or injunction, and the right to bring an equitable action for specific performance of the contract.
In the event that Facility has terminated this Agreement and Vendor has not breached any material provision of this Agreement, the parties agree that the monetary damages of Vendor will be difficult to determine, and therefore, in the event Vendor elects the legal remedy of damages, Facility shall pay liquidated damages to Vendor of $1,800.00 per month for the remaining months in the current contract year, in a total not to exceed $19,800.00, and not to be less than $7,500.00. Facility agrees that these liquidated damages are reasonable, and in no way constitute a penalty.

(Emphasis added.)

¶18 The language of this provision of the vendor agreement is clear and unambiguous. In their most ordinary and popular sense, the words of this provision provide the non-breaching party with an election of remedies. If the non-breaching party elects an equitable remedy, it would include a temporary restraining order or injunction, and specific performance. Marco’s and Deaconess’s predecessors in interest mutually agreed to these terms when they entered into this contract. We conclude that there exists no public policy, misinterpretation, or bad faith that would prevent the enforcement of the clear terms of this contract.

¶ 19 Following Deaconess’s breach and pursuant to the terms of the vendor agreement, Marco petitioned for, and was granted, a temporary restraining order. Marco also elected the remedy of specific performance or, in the alternative, an injunction to prevent Deaconess from terminating the vendor agreement. In order for the District Court to enforce the terms of the contract, it must either enter a decree of specific performance in favor of Marco, or grant Marco’s petition for an injunction.

B. Specific Performance:

¶20 Section 27-1-411(4), MCA, establishes that specific performance may be compelled when the parties to a contract have expressly agreed in writing that specific performance shall be an available remedy. Section 27-1-411(4), MCA, provides that “specific performance of an obligation may be compelled when ... (4) it has been expressly agreed in writing, between the parties to the contract, that specific performance thereof may be required by either party or that damages shall not be considered adequate relief.” Contrary to the memorandum of the District Court, this statute is designed to provide the court with the authority to make an exception to the general rule that a remedy at law must be inadequate before a court may order specific performance.

¶21 The vendor agreement signed by the parties’ predecessors expressly provided for a remedy of specific performance. As we concluded in Halcro v. Moon (1987), 226 Mont. 121, 125, 733 P.2d 1305, 1307, when a written contract between the parties expressly provides for the remedy of specific performance, the non-breaching party has a right to pursue such a remedy.

¶22 Accordingly, we conclude, as we did in Maxted v. Barrett (1982), 198 Mont. 81, 86, 643 P.2d 1161, 1164, that the District Court erred when it failed to enforce the clear terms of the contract between Marco and Deaconess. We believe that § 27-1-411(4), MCA, and the clear language of the contract itself, favor the application of specific performance in this case. Both Deaconess and Marco were responsible, at the time the contract was entered into, for understanding that in the instance of a breach, the non-breaching party has an election of remedies. Marco, the non-breaching party, did as the contract provided and elected an equitable remedy. Therefore, pursuant to the vendor agreement and § 27-1-411(4), MCA, the District Court should apply specific performance in this case and hold Deaconess, the breaching party, to the terms of the agreement.

¶23 The judgment of the District Court is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.

JUSTICES NELSON, REGNIER, HUNT and GRAY concur.


text:
    TOM AND NIKKI KONITZ, Plaintiffs and Respondents, v. TERRY CLAVER, d/b/a GLASSCO LUMBER, Defendant and Appellant.
    No. 97-251.
    Submitted on Briefs December 23, 1997.
    Decided February 12, 1998.
    1998 MT 27.
    55 St.Rep. 95.
    287 Mont. 301.
    954 P.2d 1138.

      For Appellant: Patrick F. Flaherty, Attorney at Law, Great Falls.

      For Respondents: Monte J. Boettger, Attorney at Law, Lewis-town.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶ 1 Tom and Nikki Konitz filed a complaint in the District Court for the Tenth Judicial District in Judith Basin County to recover payment for the sale of timber to Terry Claver. Claver filed a counterclaim in which he asserted that the timber was defective. Konitzes moved for summary judgment and filed affidavits in support of the motion. The District Court granted Konitzes’ motion for summary judgment and dismissed Claver’s counterclaim. Claver appeals. We affirm the order and judgment of the District Court.

¶2 Four issues are raised by Claver on appeal:

¶3 1. Did the District Court err when it granted the motion for summary judgment and awarded the relief sought by Konitzes?

¶4 2. Did the District Court err when it denied Claver the opportunity to offer additional testimony at the hearing and in subsequent affidavits?

¶5 3. Did the District Court err when it granted the motion for summary judgment while discovery was still pending?

¶6 4. Did the District Court err when it dismissed Claver’s counterclaim by summary judgment?

FACTUAL BACKGROUND

¶7 Terry Claver orally agreed in approximately February 1995, to purchase timber from Tom and Nikki Konitz. Konitzes agreed to harvest the timber from their land in Fergus County and deliver it to Claver’s business in Stanford; Claver personally moved the first load of timber. Claver planned to use the timber for posts and poles. The parties dispute whether Claver was to pay $33 per ton or $30 per ton for timber delivered.

¶8 Konitzes contracted with local loggers and truck drivers to harvest and transport the timber to Claver. During the next five months, Claver received approximately fifty loads of timber, equal to approximately 1,400 tons. For the majority of the deliveries, Claver was present and inspected the timber. On at least two occasions, however, he told the truck driver who delivered the timber that he did not want to receive “any more loads like that.” Claver also traveled at least twice to Konitzes’ land where the timber was being logged to discuss with the contractor the quality of the timber that was being delivered and to point out the kind of timber that he expected.

¶9 He contends that a large portion of the timber that he received was defective and was not lodgepole pine, the species that he and Konitz had agreed upon. Claver contacted Tom Konitz by telephone about the deficiencies in the timber and contends that Konitz came to the mill and made assurances to work out the matter. Claver went ahead and processed the timber that met his requirements into posts. He contends that approximately 35-40 percent of the timber consisted of waste, which he has stored on his property and attempted to resell but without success.

¶10 In March 1995, Claver paid Konitzes $12,000. He made a second payment of $10,000 in June 1995. No other payments have been made. There was no indication when the payments were made whether they were being made atarateof$33 or $30 per ton of timber. Konitzes produced statements from their records which indicated the amount due was based on a rate of $33 per ton. In October 1995, and the three months following, Konitzes sent a copy of the statements to Claver, along with the amounts and dates of delivery and the balance outstanding, including interest charges. They contend that Claver still owes over $26,000, and that not until April 1996, did he object to any of the statements.

¶11 On May 22, 1996, Konitzes filed a complaint in the District Court to collect the remaining balance. On July 29,1996, Claver filed an answer and counterclaim. His answer asserted four affirmative defenses: (1) the complaint failed to state a claim; (2) the contract was unenforceable because it had not been reduced to writing, as required by the statute of frauds; (3) the contract was unenforceable due to lack of consideration; and (4) the contract was induced by fraud and misrepresentation. The counterclaim sought damages, including punitive damages, for the torts of trespass, nuisance, constructive fraud, and negligent misrepresentation, based upon a breach of warranty and Konitzes’ subsequent failure to remove the timber from Claver’s land.

¶ 12 On August 14,1996, the District Court ordered, after a pretrial scheduling conference, that all discovery be completed by December 30, 1996, and that all motions and supporting briefs be filed by December 27, 1996. It set the final pretrial conference for January 13, 1997. On December 27, 1996, Konitzes moved for summary judgment and filed a brief and affidavits in support of the motion, and in the alternative, moved to dismiss Claver’s affirmative defenses and counterclaim. Their basis for claiming a right to summary judgment was that Claver had not rejected the timber and, pursuant to the Uniform Commercial Code, he was therefore bound to make payment for the deliveries.

¶13 On January 7, 1997, Claver filed an affidavit in opposition to the summary judgment motion, in which he asserted that the quality of the timber was “hit and miss” and that certain loads were “reprehensible,” while the timber was “defective in every known way to the timber industry and the worst junk timber I have ever received.” He also stated that he gave Tom Konitz notice of rejection, and he offered telephone records along with the affidavit to show that he called Tom and the contractor at least a dozen times to complain. That same day, he sought and received from the District Court an extension of time to respond to the motion for summary judgment. His reply brief maintained that genuine issues of fact were raised by Claver’s affidavit which precluded summary judgment.

¶14 At the hearing on January 13, 1997, the District Court indicated its inclination to grant summary judgment, at which point Claver’s counsel requested that Claver be allowed to testify “to amplify what I think are factual issues [in] his affidavit, his verified answer and counterclaim, and his answers ... to the discovery.” At the conclusion of the hearing, Claver also sought permission to file a supplemental brief to address the legal issues that had been raised. Over Konitzes’ objection, the District Court allowed Claver to file a supplemental brief.

¶15 Claver’s reply brief repeated the objections that he had allegedly made to Konitz about the quality of the timber, and contended that he had rejected many of the loads. In addition to the brief, Claver submitted seven new affidavits in opposition to the summary judgment motion. Konitzes subsequently filed a motion to strike the affidavits as untimely, pursuant to Rule 56, M.R.Civ.P. On March 26, 1997, the District Court granted the motion to strike and the motion for summary judgment, and dismissed Claver’s counterclaim.

ISSUE 1

¶16 Did the District Court err when it granted the motion for summary judgment and awarded the relief sought by Konitzes?

¶ 17 Our review of a district court’s grant of summary judgment is de novo and considers whether the district court was correct as a matter of law. See Schmidt v. State (1997), [286 Mont. 98], 951 P.2d 23, 26. We apply the same criteria used by the district court, based on Rule 56, M.R.Civ.P., to determine whether the moving party is entitled to judgment as a matter of law. See Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 338, 922 P.2d 485, 487. In Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903, we established that the moving party first must demonstrate that no genuine issue of material fact exists. The burden then shifts to the party opposing summary judgment to prove by more than mere denial and speculation that a genuine issue does exist. See Bruner, 272 Mont. at 264, 900 P.2d at 903; see also Heiat v. Eastern Mont. College (1996), 275 Mont. 322, 327, 912 P.2d 787, 791.

¶18 In our review of a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion. See Kaseta v. Northwestern Agency of Great Falls (1992), 252 Mont. 135, 138, 827 P.2d 804, 806; Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337.

¶19 Here, the District Court concluded that the affidavits offered by Konitzes established that they and Claver had formed a contract. They also led the District Court to conclude that only $22,000 had been paid for the timber, and that approximately $26,000 was still owed. When it shifted the burden to Claver, the District Court concluded from his affidavit and other parts of the record that he had in fact processed much of the timber, and that despite his assertion that he gave notice of rejection, Claver failed as a matter of law to make an effective rejection. The District Court held that the facts indicate that Claver accepted the timber which, pursuant to § 30-2-606, MCA, entitles Konitzes to recover. We agree with the District Court and, using the same criteria, conclude that Claver accepted the timber and is liable for the amount owed.

¶20 The agreement for sale and purchase of timber is governed by the Uniform Commercial Code as a sale of goods. See §§ 30-2-105(1) and -107(2), MCA (defining a contract for the sale of timber to be cut as a contract for the sale of goods). Therefore, we apply the terms of the statute to this matter.

¶21 Section 30-2-606, MCA, defines acceptance as follows:

(1) Acceptance of goods occurs when the buyer:
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
(b) fails to make an effective rejection (subsection (1) of 30-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.

Furthermore, § 30-2-602, MCA, defines rejection as follows:

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
(2) Subject to the provisions of the two following sections on rejected goods (30-2-603 and 30-2-604):
(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this chapter (subsection (3) of 30-2-711), he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; but
(c) the buyer has no further obligations with regard to goods rightfully rejected.
(3) The seller’s rights with respect to goods wrongfully rejected are governed by the provisions of this chapter on seller’s remedies in general (30-2-703).

¶22 Whether a buyer has accepted (or rejected) goods is ordinarily a question of fact. See 67 Am. Jur. 2d Sales §§ 632 and 649 (1985). However, where the evidence “admits of only one reasonable conclusion, the issue becomes one of law.” 67 Am. Jur. 2d Sales § 632 (1985); see also Fablok Mills, Inc. v. Cocker Mach. & Foundry Co. (N.J. 1972), 294 A.2d 62, 64.

¶23 Claver contends that it is undisputed that some of the timber failed to satisfy the contract. Regardless of the timber quality, Konitzes contend that when Claver failed to make an effective rejection of the timber, he legally accepted it.

¶24 Their primary contention is that Claver’s acts constitute an acceptance pursuant to § 30-2-606(1), MCA. When a buyer receives and puts goods to use, he generally has accepted them pursuant to § 30-2-606(l)(a) and (c), MCA. See Montana Seeds, Inc. v. Holliday (1978), 178 Mont. 119, 123, 582 P.2d 1223, 1225-26; see also Chancellor Dev. Co. v. Brand (Mo. 1995), 896 S.W.2d 672, 675. Moreover, a buyer’s payment after delivery, although not determinative, signifies his acceptance of the goods. See 67 Am. Jur. 2d Sales § 627 (1985).

¶25 Here, Claver clearly inspected and processed the majority of the timber that he received. In addition, he made payments for the deliveries. That conduct is inconsistent with Konitzes’ ownership of the timber and indicates, pursuant to § 30-2-606(l)(c), MCA, that he accepted the goods. Even if we assume that some of the timber was nonconforming, Claver’s conduct constitutes an acceptance of the timber in spite of its nonconformance, pursuant to § 30-2-606(l)(a), MCA. Accordingly, mere statements from Claver that he gave notice of rejection of the timber are insufficient to overcome his actions, which unequivocally indicate an acceptance pursuant to the statute, and which fail to satisfy § 30-2-602, MCA, as an effective rejection.

¶26 The record indicates that Konitzes have met their initial burden of showing that no genuine issue of fact exists because Claver’s conduct constitutes a statutory acceptance. In response, Claver continues to assert that in fact he rejected the timber, as shown by the notice that he gave and the timber that he has not used. However, § 30-2-606(2), MCA, states that “[a]cceptance of a part of any commercial unit is acceptance of that entire unit.” Claver’s actions constitute an acceptance of at least part of the timber, regardless of his actions regarding the nonconforming timber. He has failed to present any evidence or legal authority for the suggestion that the timber he accepted was somehow a separate commercial unit from that which he rejected. Therefore, there is no basis in the record to conclude that he is not liable for the unacceptable timber because it was a separate commercial unit. Consequently, Claver has failed to satisfy his burden, and we must conclude as a matter of law that he accepted all of the timber.

¶27 Therefore, we hold that there was no genuine issue of fact regarding whether he is liable for the outstanding balance, and that the District Court did not err when it held by summary judgment that Claver was liable for the balance due pursuant to the terms of his contract with Konitzes.

¶28 However, the District Court determined that the contract price was $33 per ton, based on Konitzes’ pleadings, while Claver’s affidavit in opposition to summary judgment stated that the contract price was only $30 per ton. The District Court erred when it failed to recognize the difference and used Konitzes’ figure of $33 per ton to calculate the outstanding balance. Therefore, while we conclude that there is no genuine issue of fact regarding Claver’s liability for the balance due, we hold that the amount of that balance cannot be decided by summary judgment. Claver’s affidavit creates an issue of fact regarding the rate agreed upon. If Konitzes wish to recover more than $30 per ton, they must do so after trial of that issue; they cannot do so as a matter of law.

ISSUE 2

¶29 Did the District Court err when it denied Claver the opportunity to offer additional testimony at the hearing and in subsequent affidavits?

¶30 Claver sought to introduce testimony at the summary judgment hearing to “amplify” the alleged issues of fact He made his request after the District Court indicated its inclination to grant summary judgment and without prior notice of his intention to do so. He now contends that the District Court erred when it refused to hear the testimony, based upon our holding in Cole v. Flathead County (1989), 236 Mont. 412, 771 P.2d 97.

¶31 We stated in Cole that “[o]ral testimony at the hearing may properly be considered on motions for summary judgment.” Cole, 236 Mont. at 416, 771 P.2d at 99 (emphasis added). We agree with Claver that a district court may allow a party to testify at a summary judgment hearing in order to establish the existence of genuine factual issues. We also agree, pursuant to Rule 56 and our holding in Cole, that the parties are entitled as a matter of right to a hearing on a motion for summary judgment. See Cole, 236 Mont. at 419, 771 P.2d at 101. However, Claver has offered no support for his contention that when a district court conducts a hearing on a summary judgment motion, the party opposing the motion is entitled to testify without prior notice, and that it is error for the district court to disallow the testimony.

¶32 We review discretionary trial court rulings for an abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. Discretionary trial court rulings include such things as trial administration issues, scope of cross-examination, post-trial motions, and similar rulings. See Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604; Harwood v. Glacier Electric Coop., Inc. (1997), [285 Mont. 481], 949 P.2d 651, 657. We conclude that the District Court’s decision whether to allow Claver to testify at the summary judgment hearing was a discretionary ruling and is therefore subject to review for an abuse of discretion.

¶33 Here, in response to the motion for summary judgment, Claver submitted only a brief and his own affidavit to establish the existence of genuine issues of fact. He did so after a request for extension of time to respond to the motion. Despite his initial request for an extension, Claver did not make a request to the District Court to delay the hearing until he could submit additional evidence, nor did he make an offer of proof to demonstrate that his testimony would present facts not already before the District Court. In fact, Claver continues to assert on appeal that he “had met his burden of showing genuine factual issues by the pleadings alone and that no testimony was needed.”

¶34 On January 15, 1997, just two days after the hearing, Claver prepared additional affidavits from six other individuals, including one of his own testimony, to oppose the motion and to indicate to the District Court that a genuine issue of fact existed. He gave no explanation why the affidavits were not timely filed prior to the hearing, or how they addressed the legal issues that had been raised at the hearing. Rule 56(c), M.R.Civ.R, requires the party opposingthe motion to serve opposing affidavits prior to the day of hearing. As such, the affidavits were untimely.

¶35 Accordingly, we conclude that the District Court did not abuse its discretion when it denied Claver the additional opportunity to establish a genuine issue of fact through his testimony at the hearing, and when it granted Konitzes’ motion to strike the additional affidavits.

ISSUE 3

¶36 Did the District Court err when it granted the motion for summary judgment while discovery was still pending?

¶37 The parties had arranged to conduct depositions of each other on January 13,1997, after the hearing. However, during the hearing they agreed to postpone the depositions until the District Court ruled on the summary judgment motion. Claver contends that the District Court erred when it granted the motion prior to the completion of discovery.

¶38 Rule 56, M.R.Civ.R, imposes no requirement upon the District Court to delay its decision on a motion for summary judgment until the parties have completed discovery. Rather, Rule 56(a), M.R.Civ.R, states that a party can move for summary judgment “at any time after the expiration of 20 days from the commencement of the action” and the very purpose of summary judgment is to eliminate the burden and expense of an unnecessary trial and trial preparation, including such things as discovery. See Klock v. Town of Cascade (1997), [284 Mont. 167], 943 P.2d 1262, 1266; Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16.

¶39 The only relevant support that Claver offers for his contention that the District Court should postpone its decision until discovery is complete is Rule 56(f), M.R.Civ.P., which states that a district court may refuse the motion or order a continuance “to permit ... depositions to be taken or discovery to be had” when affidavits are unavailable. Here, Claver had been aware since August 1996, of the District Court’s order that all discovery be completed by December 30,1996. He made no request to the District Court prior to the hearing for an extension to complete discovery, nor did he assert that he needed, more of an opportunity to establish that a genuine issue of fact existed. In fact, within two days of the hearing he was able to produce seven additional affidavits. At no time did he assert that those affidavits had been unavailable earlier.

¶40 Accordingly, we hold that there are no legal or factual grounds to conclude that the District Court erred when it relied on the record before it and held prior to the completion of discovery that Konitzes were entitled to judgment as a matter of law.

ISSUE 4

¶41 Did the District Court err when it dismissed Claver’s counterclaim by summary judgment?

¶42 Claver’s counterclaim was predicated on the assumption that Konitzes were at fault in their “performance” of the agreement and that summary judgment is inappropriate. As we have held, however, the contract between the parties is governed by the U.C.C. Pursuant to its provisions, summary judgment is appropriate and Claver is liable for the outstanding balance. If Claver is to assert additional claims against Konitzes for their performance, they must be based strictly on the remedies provided to a buyer in the U.C.C.

¶43 Here, Claver has made a variety of factual allegations against Konitzes, but failed to provide any legal authority on which his counterclaim is based. As the District Court noted, Konitzes’ answer to Claver’s counterclaim set forth specific legal reasons why the claim was without merit; Claver has made no attempt to respond by supporting his claims with applicable law. Accordingly, we conclude that the District Court did not err when it granted summary judgment which dismissed Claver’s counterclaim.

¶44 We affirm the order and judgment of the District Court.

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