author: JUSTICE NELSON

text:
    ROY W. STANLEY AND CAROL A. STANLEY, individually and ROY W. STANLEY, CAROL A. STANLEY, LIBBY STANLEY, HOLLY STANLEY and CARRIE STANLEY as the assignees of ROY STANLEY CHEVROLET COMPANY, Plaintiffs and Respondents, v. ALLAN G. HOLMS, AGH, INC. a/k/a ALLAN G. HOLMS, INC., a Washington corporation or any successor, entity or assignees of the assets of HOLMS MOTORS, INC., and THE ALLAN G. HOLMS TRUST, Roger Crist, Trustee, Defendants and Appellants.
    No. 96-307.
    Submitted on Briefs November 21, 1996.
    Decided March 7, 1997.
    54 St.Rep. 195.
    281 Mont. 329.
    934 P.2d 196.

      For Appellants: Lee C. Henning, Lence Law Firm, Kalispell.
    For Respondents: Gary R. Christiansen, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Eleventh Judicial District Court, Flathead County. Following a hearing, the District Court granted Plaintiffs’motion for summary judgment. From this judgment, Defendants appeal. We reverse and remand for further proceedings consistent with this opinion.

The sole issue raised on appeal is whether the District Court committed reversible error by granting Plaintiffs summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 25,1995, Plaintiffs, Roy W. Stanley, et al. (Stanleys), filed their amended complaint against Defendants, Allan G. Holms, AGH, Inc., et al. (Holms), alleging claims on various contractual agreements, guarantees, promissory notes and assignments of life insurance as collateral for money due thereon, and a schedule of payments. Subsequently, Stanleys served Holms on October 31,1995, with their first discovery requests. These included requests for admissions referencing specific exhibits attached to Stanleys’ amended complaint, a schedule of payments and the fact that payments had not been made. Further, Stanleys asked Holms to furnish proof of any payments made with regard to the schedule of payments.

Holms answered the amended complaint on November 27, 1995, admitting execution of the promissory notes, joint and several liability, failure to make payments and their consent to a requested order for preliminary injunction. Holms’ answer also denied owing Stanleys the sums claimed and asserted various affirmative defenses. However, on December 1, 1995, Holms’ then counsel, David A. Hawkins (Hawkins), filed his motion to withdraw, only three days prior to the deadline for answers to Stanley’s first discovery requests due on December 4,1995. Hawkins’ motion cited irreconcilable personal and professional differences with Holms regarding the handling of the case which interfered with his ability to represent his clients as well as a breakdown in attorney-client communication making representation impossible. On December 8, 1995, Stanleys filed a motion for summary judgment based to a great extent on matters deemed admitted by Holms’ failure to respond to the request for admissions. In their supporting brief, Stanleys specifically pointed out that Holms did not respond to discovery requests and failed to seek or obtain an extension of time, and, therefore, pursuant to Rule 36(a), M.R.Civ.R, the requests for admissions were deemed admitted.

On December 20, 1995, the District Court heard and granted Hawkins’ motion to withdraw. On the same day, Stanleys served Holms with a “Confirmation of Notice and Notice of Motion.” This document confirmed the District Court’s oral instruction to Holms regarding Rule 10, U.Dist.Ct.R., and included an attached copy of Rule 10, U.Dist.Ct.R. Further, the notice of motion specifically referenced the pending motion for summary judgment with a January 16, 1996 hearing date.

On January 9, 1996, Lee C. Henning, Holms’ present counsel, agreed to undertake representation and on January 10, 1996, Henning filed his motion and memorandum for leave to amend the pleadings, to file amended responses to Stanleys’ first discovery requests, and to continue Stanleys’ motion for summary judgment. On January 11, 1996, Holms served their objections and answers to Stanleys’ first discovery requests. On January 16, 1996, the District Court heard oral argument and granted Stanleys’ motion for summary judgment on April 26, 1996. From this judgment, Holms appeal. We reverse and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

Our standard of review for an appeal from an order granting summary judgment is de novo. Motarie v. Northern Montana Joint Refuse Disposal District (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. We review the order granting summary judgment using the same evaluation as did the District Court, based on Rule 56, M.R.Civ.R Motarie, 907 P.2d at 156. Our inquiry is set out as follows:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 (citations omitted).

In its April 26, 1996 Order, the District Court concluded that the 30-day deadline under Rule 36(a), M.R.Civ.R, was not tolled because Rule 10, U.Dist.Ct.R., did not apply, and, therefore, ruled that summary judgment was proper because Stanleys’ requests for admissions were deemed admitted under Rule 36(a), M.R.Civ.R, when Holms failed to file answers or objections to those requests. On appeal, Holms raise the legal issue whether their responses to Stanleys’ first discovery requests were timely filed because the original deadline for responses under Rule 36(a), M.R.Civ.R, was tolled pursuant to Rule 10, U.Dist.Ct.R. Accordingly, we review the District Court’s conclusion to the contrary to determine if the court was legally correct.

DISCUSSION

The sole issue raised on appeal is whether the District Court committed reversible error by granting Stanleys summary judgment.

The District Court granted Stanleys’ motion for summary judgment on April 26,1996. The court, citing Rule 36(a), M.R.Civ.R, noted that Stanleys’ requests for admissions were deemed admitted because Holms had neither answered nor objected to the admissions within the 30-day period allowed by the statute. The court ruled that Rule 10, U.Dist.Ct.R., did not apply because nothing prevented Holms’ original counsel from acting on Holms behalf, and, therefore, the running of the 30-day provision of Rule 36(a), M.R.Civ.R, was not tolled. Additionally, the court ruled that Holms’ motion for leave to file an amended response to Stanleys’ first discovery requests did not make any sense because Holms’ never filed a response within the time provided, and, thus, nothing existed in the record to amend.

Furthermore, the District Court ruled that Stanleys’ Requests for Admissions, which were deemed admitted, established in a logical fashion Stanleys’ right to judgment. In contrast, the court ruled that Holms’ assertions included in the affidavits and memoranda opposing summary judgment were “conclusory, speculative and self-serving.” The court, therefore, ruled that Holms did not raise a genuine issue of material fact with regard to the matters covered by Stanleys’ motion for summary judgment, and, in fact, no dispute existed in the record concerning the amounts owed by Holms.

On appeal, Holms first argue that Stanleys’ motion for summary judgment lacked a factual basis because Holms’ filed answers and objections to Stanleys’ requests for admissions in a timely manner. Relying on various Montana cases, Holms contend that Rule 10, U.Dist.Ct.R., and § 37-61-405, MCA, provide that when an attorney representing a party ceases to act as such, before any further proceedings are conducted against the unrepresented party, the adverse party must give written notice to the unrepresented party to appoint another attorney or appear in person and to provide the date of the next hearing or action. See McWilliams v. Clem (1987), 228 Mont. 297, 743 P.2d 577; Montana Bank of Roundup, N.A. v. Benson (1986), 220 Mont. 410, 717 P.2d 6; McPartlin v. Fransen (1978), 178 Mont. 178, 582 P.2d 1255.

Holms argue that although Stanleys gave them confirmation and notice of the summary judgment hearing, this was not proper notice. Holms assert that Hawkins ceased to act as their attorney when he filed his Motion to Withdraw on December 1, 1995, only days before their responses to Stanleys’ first discovery requests were due. Therefore, pursuant to Rule 10, U.Dist.Ct.R., and § 37-61-405, MCA, Holms contend Stanleys were required to give them notice concerning appointment of new counsel and the deadline for discovery responses pursuant to Rule 36(a), M.R.Civ.P. Holms assert that because Stanleys failed to give Holms the required notice, the deadline for discovery responses was tolled between the date Hawkins filed his motion to withdraw and the date the District Court granted Hawkins’ motion and Stanleys gave Holms the required notice. Holms conclude that they timely answered Stanleys’ first discovery requests because they served Stanleys with those answers after the mandatory stay, within forty-eight hours after appearance of their new counsel.

Stanleys respond simply that they gave Holms proper notice by including notification that the next proceeding was a hearing concerning the pending motion for summary judgment. Additionally, Stanleys argue that Holms presented no authority for the proposition that all time periods are suspended when counsel files a Notice to Withdraw. Therefore, Stanleys assert that Holms’ discovery responses were not timely filed and were not sufficient to prevent the court from granting Stanleys’ motion for summary judgment.

Second, Holms argue that even if their answers were not timely filed, the District Court erred by denying Holms’ motion for leave to file amended answers to Stanleys’ first requests for admissions. Holms asserts that the court has discretion to allow late filings and Rule 36(b), M.R.Civ.R, specifically allows the court to permit withdrawal or amendment of admissions. Holms points out that the District Court denied their motion to amend discovery requests, reasoning that because Holms never answered Stanleys’ discovery requests, nothing was on file to amend. However, Holms contend that their failure to respond to Stanleys’ discovery requests constituted admissions which were “on file” and, therefore, were subject to amendment. Furthermore, Holms argues that the District Court abused its discretion because it did not consider the two-part test under Rule 36(b), M.R.Civ.R, when deciding to deny their motion to amend discovery responses. Stanleys respond by supporting the District Court’s reasoning and judgment concerning the issue of Holms’ timeliness responding to Stanleys’ first discovery requests.

Third, Holms contend that the District Court committed reversible error by granting Stanleys’ motion for summary judgment because the court should have granted Holms reasonable time to conduct discovery as supported by Rule 56(f), M.R.Civ.R Finally, Holms contend that the District Court erred by granting summary judgment because the Affidavit of Allan Holms raised sufficient factual issues to preclude summary judgment.

We hold that the District Court erred when it concluded that the 30-day deadline under Rule 36(a), M.R.Civ.R, was not tolled because Rule 10, U.Dist.Ct.R., did not apply, and, therefore, ruled that summary judgment was proper because Stanleys’ requests for admissions were deemed admitted under Rule 36(a), M.R.Civ.R, when Holms failed to file answers or objections to those requests. Accordingly, we reverse the District Court’s legal conclusion to the contrary. Because this issue is dispositive, we will not address Holms’ additional three arguments.

Section 37-61-405, MCA, imposes a duty upon an adverse party when another party’s attorney withdraws:

When an attorney dies or is removed or suspended or ceases to act as such, a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or appear in person. [Emphasis added.]

We have interpreted the plain language of this statute to mean that “no proceeding may be had against a party, no judgment or order or other step be taken, until he appoints an attorney, unless the prescribed notice is first given.” Montana Bank of Roundup, 717 P.2d at 7 (citations omitted). See also McWilliams, 743 P.2d at 585-86. The purpose of this statute is to protect the unrepresented party and to ensure that party receives a fair trial. McPartlin, 582 P.2d at 1259. Therefore, the opposing party with notice of the withdrawal has a duty to provide adequate notice to the unrepresented party. McPartlin, 582 P.2d at 1259. That is, the represented party must satisfy the requisites of § 37-61-405, MCA, by showing that he made “a good faith effort to notify the unrepresented party and advise him he should substitute counsel or appear in person, and the notice also sets forth the date of the next hearing or action in the matter pending...” McPartlin, 582 P.2d at 1259 (emphasis added).

Furthermore, Rule 10(b), U.Dist.Ct.R., also provides:

When the attorney representing a party to an action or proceeding dies, is removed, withdraws, or ceases to act as such, that party, before any further proceedings are had against him must be given notice by any adverse party:
(1) That such party must appoint another attorney or appear in person, and
(2) The date of the trial or of the next hearing or action required in the case, and
(3) That if he fails to appoint an attorney or appear in person by a date certain, which may not be less than twenty days from the date of the notice, the action or other proceeding will proceed and may result in a judgment or other order being entered against him, by default or otherwise. [Emphasis added.]

In the case at bar, the record shows that Hawkins mailed a copy of his motion to withdraw to Stanleys on December 1,1995. Technically, Hawkins was counsel of record for Holms until the District Court granted his motion to withdraw. Nevertheless, it should also have been apparent from the motion itself that it was questionable whether Hawkins would thereafter actively represent Holms’ interests. Hawkins’ motion was based upon irreconcilable personal and professional differences regarding the handling of his clients’ case which interfered with his ability to represent them. Further, he stated that a breakdown in communications had occurred, making representation impossible.

In this regard, under both § 37-61-405, MCA, and Rule 10(b), U.Dist.Ct.R., counsel must provide notice to an adverse party when that party’s attorney ceases to act as such. Specifically, the notice requirement is not limited to circumstances where the attorney dies, is removed, is suspended or actually withdraws. Notice is also required when a party’s attorney ceases to act as such. In most circumstances, it would be an unfair and impracticable burden to impose on counsel the obligation to determine when his adversary had ceased to act as an attorney for his clients. Notwithstanding, where the facts of the case or the record itself reasonably lead to that conclusion, then it will be incumbent upon counsel to give the notice required by the statute and the Rule before taking advantage of a default on the part of the other side. While this may pose some added inconvenience to the represented parties required to give the notice, we conclude that this burden is insubstantial when compared to the potential detriment that may be suffered by a litigant whose counsel has ceased to act on his client’s behalf. As we stated in McPartlin, “[b]y imposing this duty on the represented party, we do not intend to stall justice, rather, we hope such notice will enable justice to be carried out as fairly and expeditiously as possible.” McPartlin, 582 P.2d at 1259.

Here, the grounds stated in Hawkins’ motion would reasonably lead to a conclusion that he could no longer act as counsel for his clients. Under those circumstances, it was also reasonable to assume that he had ceased to act as attorney for his clients pending the court allowing him to officially withdraw. Therefore, upon receipt of Hawkins’ motion, Stanleys were obligated to give the notice required by § 37-61-405, MCA, and Rule 10, U.Dist.Ct.R., before taking advantage of Holms’ failure to respond to the request for admissions, the answers to which were not yet due when Hawkins filed and served his motion.

Furthermore, this notice was required to include not only a direction that Holms appoint another attorney or appear in person, but information about the date of the next “action required in the case.” See Rule 10(b)(2), U.Dist.Ct.R. The next action required in this case at the time Hawkins’ motion to withdraw was filed and served on December 1,1995, was the necessity to answer Stanleys’ first discovery requests and requests for admissions by December 4, 1995. In this regard, we note that December 1, 1995, was a Friday and December 4,1995, was the following Monday. We do not suggest that Hawkins’ llth-hour motion to withdraw, when discovery responses were due within a few days and when he had failed to request an extension, should be held up as an example of professional conduct. Nevertheless, Holms were placed in an impossible position — at the time Hawkins’ ceased to act as their counsel, they had virtually no time left to retain new counsel or appear in person and to timely respond to Stanleys’ discovery requests. Under the circumstances, if Stanleys were determined to take advantage of Holms’ situation and their failure to answer the requests for admissions, then Stanleys were also obligated to give Holms the required notice under the statute and the Rule. The purpose of this notice requirement is to prevent a represented party from taking unfair advantage of the situation of the opposing party who has actually or effectively lost his representation and to ensure that the unrepresented party receives a fair trial. See McPartlin, 582 P.2d at 1259.

Here, upon receipt of Hawkins’ motion to withdraw, Stanleys did not serve Holms with the required notice. Instead, on December 8, 1995, Stanleys filed a motion for summary judgment alleging that no material issues of fact existed because Holms had failed to answer Stanleys’ requests for admissions by the deadline, and, therefore, those matters were deemed admitted pursuant to Rule 36(a), M.R.Civ.P. Not until December 20, 1995, did Stanleys serve Holms with the requisite notice, immediately after the District Court granted Hawkins’ motion to withdraw. In this notice, Stanleys indicated that Holms must appoint another attorney or appear in person and also informed Holms of the upcoming summary judgment hearing scheduled for January 16, 1996.

Of course, by the time of this notice, Stanleys were able to take advantage of Holms’ failure to answer the requests for admissions during a time that they (Holms) were effectively unrepresented and by using that default as the basis for their motion for summary judgment. Because it was not given at the time when Holms’ counsel ceased to act, the remedial purpose of the notice was frustrated. In reality, the case was all but over when the notice was given.

Holms’ new counsel appeared on January 9, 1996, and filed motions on January 10, 1996, to amend the pleadings, to amend their responses to Stanley’s first discovery requests, and to continue Stanleys’ motion for summary judgment. Despite these motions, the District Court conducted a summary judgment hearing, as scheduled, on January 16, 1996. After the hearing, the District Court granted Stanleys summary judgment. In its April 26, 1996 order granting summary judgment, the District Court disagreed with Holms that Rule 10, U.Dist.Ct.R., stayed the running of the 30-day provision of Rule 36(a), M.R.Civ.R stating:

[Holms’] original counsel was not sick, nor did he die, nor did he have any disability or problems which kept him from acting as the attorney for [Holms], other than the concerns which he expressed at the December 20, 1995 hearing regarding his request to withdraw. Rule 10 is simply not applicable given the facts of this matter and did not stay the time period within which discovery responses were required.

Consequently, the District Court concluded that responses to Stanleys’ first discovery requests were due no later than the first week of December 1995, and when Holms failed to file their responses, Stanleys’ requests for admissions were deemed admitted pursuant to Rule 36(a), M.R.Civ.R, and, therefore, summary judgment was proper.

We disagree with the court’s legal conclusion in this regard. As discussed above, Rule 10, U.Dist.Ct.R., as well as § 37-61-405, MCA, applies to the facts of this case because it was reasonable to assume that Hawkins ceased to act as Holms’ attorney when he filed his motion to withdrawal. Furthermore, after receipt of Hawkins’motion to withdraw, Stanleys failed to provide Holms with notice as required by Rule 10, U.Dist.Ct.R., and § 37-61-405, MCA. Therefore, absent compliance with the notice requirements of the Rule and the statute, further proceedings against Holms were stayed and, consequently, the deadline for their answers to Stanleys’ first discovery requests was tolled. Stanleys’ subsequent notice on December 20, 1995, at the time the District Court granted Hawkins’ motion to withdraw, was ineffective because that notice failed to advise Holms that the next action required in the case was the necessity to answer the discovery requests and requests for admissions which had been tolled from the time Hawkins’ filed his motion to withdraw and had ceased to act as Holms’ counsel. Thus, the discovery responses served by Holms’ present counsel on January 11, 1996, were timely, and should have been taken into consideration by the District Court in determining whether Stanleys’ motion for summary judgment was meritorious.

We hold that the District Court erred when it concluded that the 30-day deadline under Rule 36(a), M.R.Civ.R, was not tolled because Rule 10, U.Dist.Ct.R., did not apply, and, therefore, ruled that summary judgment was proper because Stanleys’ requests for admissions were deemed admitted under Rule 36(a), M.R.Civ.P., when Holms failed to file answers or objections to those requests. On remand, the District Court should address and rule on Holms’ motion to amend the pleadings under the criteria set out in Rule 15(a), M.R.Civ.P., and our interpretive case law and should then reconsider Stanleys’ motion for summary judgment in light of any amended pleadings which the court permits to be filed, in light of Holms’ discovery responses and in light of the state of the record at the time the motion for summary judgment is heard.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES LEAPHART, GRAY and HUNT concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    DANIEL OROZCO, Plaintiff and Appellant, v. RICK DAY, Director of the Department of Corrections and Human Services, MIKE MAHONEY, Section Warden, MYRON BEESON, Section Warden, CANDYCE NEUBAUER, Classification Manager, DAVE LANNING, Unit Manager, MONTANA DEPARTMENT OF CORRECTIONS AND HUMAN SERVICES, MONTANA STATE PRISON. Defendants and Respondents.
    No. 96-344.
    Submitted on Briefs October 10, 1996.
    Decided March 10, 1997.
    54 St.Rep. 200.
    281 Mont. 341.
    934 P.2d 1009.

      For Appellant: Daniel Orozco, Pro Se, Deer Lodge.

      For Respondents: Lois Adams, David L. Ohler, Diana P. Leibinger, Attorneys at Law, Department of Institutions, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Daniel Orozco (Orozco), appearing pro se, appeals from the opinion and order of the Third Judicial District Court, Powell County, dismissing his complaint for failure to state a claim upon which relief could be granted. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

We restate the issues on appeal as follows:

1. Did the District Court err in concluding that the Department of Corrections and the individual defendants are not “persons” under 42 U.S.C. § 1983?

2. Did the District Court err in concluding that the individual defendants have qualified immunity?

Factual and Procedural Background

Orozco is an inmate at the Montana State Prison (MSP). On March 26, 1995, Unit Manager Dave Lanning notified Orozco, via a document entitled “Due Process Notifications,” that an ongoing investigation indicated that he was involved in a conspiracy to traffic drugs within the MSP. The notice further stated that a classification hearing would be held to address Orozco’s custody level and job assignment and that Orozco could present evidence on his own behalf at the hearing. On the same day, Orozco was placed in temporary lock-up in maximum security for investigation purposes pursuant to MSP Policy No. 15-002.

Orozco was not provided with a hearing investigator to assist in his defense at the classification hearing held on March 28, 1995. As a result of the hearing, Orozco was reclassified to maximum security and was unable to continue earning thirteen days per month good time credits.

Orozco subsequently filed a 42 U.S.C. § 1983 civil rights action against Rick Day, Director of the Department of Corrections; Mike Mahoney, Section Warden; Myron Beeson, Section Warden; Candyce Neubauer, Classification Manager; Dave Lanning, Unit Manager for Close Unit One; the Department of Corrections (Department); and the MSP. Orozco requested a declaratory judgment that the defendants had violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution by failing to assign a hearing investigator to assist in his defense during the classification hearing which could, and did, result in his inability to continue to earn thirteen days per month good time credits. He also sought a preliminary and permanent injunction requiring the defendants to adequately train and supervise personnel in established policy and discipline personnel for failure to comply with such policy; to place him back in the general prison population; and to credit him with thirteen days per month good time which was lost due to his placement in maximum security. Finally, Orozco requested an award of money damages against each of the defendants.

The defendants moved to dismiss Orozco’s complaint pursuant to Rule 12(b)(6), M.R.Civ.R, for failure to state a claim upon which relief could be granted. The District Court held a hearing in December of 1995 and, thereafter, granted the defendants’ motion to dismiss. Orozco appeals.

Additional facts are set forth below where necessary to our resolution of the issues.

Standard of Review

The District Court dismissed the entirety of Orozco’s complaint pursuant to Rule 12(b)(6), M.R.Civ.R In evaluating a Rule 12(b)(6) motion to dismiss, courts are required to construe a complaint in the light most favorable to the plaintiff. The court should not dismiss the complaint unless it appears that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claims. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 509, 905 P.2d 158, 160.

The issues Orozco raises on appeal assert error in the District Court’s conclusions of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631.

Discussion

1. Did the District Court err in concluding that the Department and the individual defendants are not “persons” under 42 U.S.C. § 1983?

Orozco based his claim against the Department and each individual defendant on 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to prevail on a § 1983 claim, the plaintiff must establish:

(1) a violation of rights protected by the [United States] Constitution or created by federal statute, (2) proximately caused (3) by conduct of a “person” (4) acting under color of state law.

Crumpton v. Gates (9th Cir. 1991), 947 F.2d 1418, 1420.

The District Court concluded that the Department and the individual defendants are not “persons” within the meaning of § 1983. Orozco contends that the court erred.

Department of Corrections

The United States Supreme Court has held that municipalities and local government emits are among those “persons” to whom 42 U.S.C. § 1983 applies. See Monell v. New York City Dep’t of Social Serv. (1978), 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611, 635. States and other governmental entities, on the other hand, are considered “arms of the state” and, as a result, they are not “persons” within the meaning of § 1983. See Will v. Michigan Dep’t of State Police (1989), 491 U.S. 58, 70, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 57. The exclusion of states and “arms of the state” from the term “person” contained in § 1983 is based on the immunity from suit provided to states by the Eleventh Amendment to the United States Constitution. See Will, 491 U.S. at 66, 109 S.Ct. at 2309-10.

The Department is an entity within the executive branch of government in the State of Montana (State). See §§ 2-15-102(4) and 2-15-2301, MCA. Thus, it is a governmental entity which is considered an “arm of the state” and not a “person” for § 1983 purposes. See Will, 491 U.S. at 70, 109 S.Ct. at 2312.

Orozco argues that § 2-9-305(2), MCA, required him to join the Department in this action and, therefore, that the District Court erred in concluding that it was not a proper § 1983 defendant. The Department did not respond to Orozco’s argument but, in any event, Orozco misreads the statute.

Section 2-9-305(2), MCA, requires governmental entity employers to defend and indemnify employees sued for misconduct committed in the course and scope of the employees’ office or employment, including employees against whom a § 1983 action is brought. It does not refer to, or require, joinder of a governmental entity when an employee of that entity is sued. See § 2-9-305(2), MCA. Although the heading of § 2-9-305, MCA, contains the language “Governmental entity to be joined as defendant,” nothing in the text of the statute relates to or supports that portion of the heading. We have held that the text of the statute takes precedence over the title in matters of statutory interpretation. See ISC Distrib., Inc. v. Trevor (1995), 273 Mont. 185, 196, 903 P.2d 170, 177.

Orozco’s contention that, under § 2-9-305(2), MCA, the Department was a proper party in his § 1983 action is also without merit. The statute addresses actions brought against employees; it does not relate to the propriety or impropriety of suing governmental entities, and the law is clear that § 1983 does not apply to arms of the state. See § 2-9-305(2), MCA; Will, 491 U.S. at 70, 109 S.Ct. at 2312.

We hold that the District Court correctly concluded that the Department is not a “person” within the meaning of 42 U.S.C. § 1983.

Individual Defendants

State officials sued for money damages in their official capacities also are not “persons” within the meaning of § 1983, because the suit is not a suit against the state officials, but is a suit against the officials’ offices. Therefore, an action for money damages against a state official in his or her official capacity is no different than a suit against the state itself. Will, 491 U.S. at 71, 109 S.Ct. at 2312.

State officials are “persons” within the meaning of § 1983, however, if sued for money damages in their individual capacities for actions taken under color of state law. See Trout v. Bennett (1992), 252 Mont. 416, 425, 830 P.2d 81, 85-86 (following Hafer v. Melo (1991), 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301). Orozco argues on appeal that, because he sued the individual defendants in their individual capacities, the District Court erred in concluding that the individual defendants are not “persons” under § 1983.

Generally, where state officials are sued for damages under § 1983, it is presumed that the officials are sued in their individual capacities. See Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho (9th Cir. 1994), 42 F.3d 1278, 1284 (citation omitted).

Any other construction would be illogical where the complaint is silent as to capacity, since a claim for damages against state officials in their official capacities is plainly barred.

Shoshone-Bannock Tribes, 42 F.3d at 1284. In cases where the complaint does not clearly specify whether state officials are sued in their individual or official capacities, the course of the proceedings will indicate the type of liability sought to be imposed. Larez v. City of Los Angeles (9th Cir. 1991), 946 F.2d 630, 640 (citation omitted).

Here, Orozco’s complaint does not clearly indicate in which capacity he sued the individual defendants. The caption of the complaint, in which the individual defendants’ names are followed by an identification of their positions within the Department or at the MSP, suggests that Orozco sued them in their official capacities. In addition, the complaint contains a section entitled “DEFENDANT’S [sic]” which sets forth the name of each defendant and his or her position, followed by a description of the defendant’s official duties.

On the other hand, Orozco’s complaint also contains indications that Orozco intended to sue the individual defendants in their individual, rather than their official, capacities. For example, the complaint asserts that the Eleventh Amendment does not bar actions against officials who, acting under color of state law, deprive a plaintiff of constitutionally protected rights. This assertion appears to reflect an awareness by Orozco that, while Eleventh Amendment immunity applies to state officials sued in their official capacity (see Will, 491 U.S. at 70-71, 109 S.Ct. at 2312), it “provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law” (see Scheuer v. Rhodes (1974), 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90, 97).

Orozco’s complaint also states that the individual defendants are “not entitled to the protection of the good faith immunity.” Such a defense for the individuals named in Orozco’s complaint only becomes an issue, however, when they are sued in their individual capacities, because personal immunity defenses may be asserted only by officials sued in their personal, rather than their official, capacities. See Hafer, 502 U.S. at 25, 112 S.Ct. at 361-62. Thus, the reference in Orozco’s complaint to personal immunity defenses suggests an intent to sue the defendants in their individual capacities. Otherwise, inclusion of such a reference would be meaningless.

Orozco’s complaint further states that the defendants “acted with malicious intent, outside [the] scope of their authority.” In this regard, Orozco’s complaint is similar to those in Scheuer, where the plaintiffs alleged that the defendants acted intentionally, recklessly, willfully and wantonly either under color of state law or outside the scope of their authority. See Scheuer, 416 U.S. at 235, 94 S.Ct. at 1686. Faced with such allegations in the context of a trial court’s decision to dismiss the complaints at the pleading stage, the United States Supreme Court concluded that the plaintiffs’ allegations demonstrated that they were seeking to impose individual liability on the named defendants. Scheuer, 416 U.S. at 238, 94 S.Ct. at 1687.

Orozco’s complaint does not clearly and consistently establish whether he is suing the individual defendants in their official or individual capacities. We conclude, however, that a fair reading of the complaint suggests an intent by Orozco to sue the individual defendants in their individual capacities. We hold, therefore, that the District Court erred in concluding at the pleading stage of this case that the individual defendants were not “persons” under 42 U.S.C. § 1983.

2. Did the District Court err in concluding that the individual defendants have qualified immunity?

The District Court also concluded that the individual defendants were entitled to qualified immunity. Orozco contends that the court erred in this conclusion as well.

We recently discussed qualified immunity at length in Boreen v. Christensen (1996), [280 Mont. 378], 930 P.2d 67. Qualified immunity shields government officials performing discretionary functions from civil damages “ ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Boreen, 930 P.2d at 70 (quoting Harlow v Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396). “Qualified immunity ‘gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’”Boreen, 930 P.2d at 70 (quoting Hunter v. Bryant (1991), 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589, 596).

Courts apply a two-pronged test in determining whether an official is entitled to qualified immunity. First, the court must determine whether a clearly established right has been violated; and second, the court must determine whether a reasonable person or official would have known that his or her conduct violated that right. Sacco v. High Country Indep. Press (1995), 271 Mont. 209, 216, 896 P.2d 411, 415 (citation omitted).

The threshold inquiry in applying the qualified immunity test, therefore, is whether the constitutional right allegedly violated-here, an alleged right to due process arising from a liberty interest in accumulating good time credits — was clearly established at the time of the conduct giving rise to the litigation. See Boreen, 930 P.2d at 70. Relying on Remington v. Dep’t of Corr. & Human Serv. (1992), 255 Mont. 480, 844 P.2d 50, the District Court concluded that Orozco did not have a liberty interest in good time credits which implicated due process concerns.

In Remington, inmate Daniel Remington petitioned this Court for habeas corpus relief, contending that the Department violated his right to due process by denying him good time credits for successfully completing correspondence courses. Remington, 844 P.2d at 52. We noted that, if a liberty interest in good time credits exists, due process concerns arise in order “’to insure that the state-created right is not arbitrarily abrogated.’” Remington, 844 P.2d at 52 (quoting Wolff v. McDonnell (1974), 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951). In determining whether a liberty interest existed, we stated that

[a] liberty interest is created when the legislature expressly mandates to an agency the performance of some activity to be carried out within specific parameters which include definitions, criteria, and mandated “shalls.”

Remington, 844 P.2d at 52 (citing Connecticut Bd. of Pardons v. Dumschat (1981), 452 U.S. 458, 466, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158, 166). We then scrutinized § 53-30-105, MCA (1991), which authorized the Department to adopt rules concerning the dispensation of good time credits. We concluded that § 53-30-105, MCA (1991), did not contain definitions, criteria or mandates for the good time rules it directed the Department to adopt and, as a result, the Department “has virtually unfettered discretion in establishing the rules which will govern the dispensation of ‘good time’ credits to prisoners.” Remington, 844 P.2d at 52. In light of that virtually unfettered discretion, we held that MSP inmates do not have a liberty interest in good time credits which raises due process concerns. See Remington, 844 P.2d at 53.

Subsequent to Remington, the United States Supreme Court changed its focus in defining state-created liberty interests in Sandin v. Conner (1995), 515 U.S. _, 115 S.Ct. 2293, 132 L.Ed.2d 418. The Supreme Court reflected that, post-Wolff, it had departed from determining whether the state had created an interest of “real substance” and focused, instead, on whether states had gone beyond issuing mere procedural guidelines and used “ ‘language of an unmistakably mandatory character’ such that the incursion on liberty would not occur ‘absent specified substantive predicates.’ ” Sandin, 115 S.Ct. at 2298 (citation omitted). Noting that the post -Wolff “mandatory language/substantive predicate” focus had served as a disincentive for states to codify prison management procedures in the interest of uniform treatment and led to the involvement of courts in the day-today management of prisons, the Supreme Court concluded that it was time to return to the “interest of ‘real substance’ ” approach to due process established in Wolff. Sandin, 115 S.Ct. at 2298-2300.

In Wolff, a Nebraska prison inmate sued under § 1983, alleging that prison disciplinary proceedings which could result in the loss of good time violated the Due Process Clause of the Fourteenth Amendment. Wolff, 418 U.S. at 553, 94 S.Ct at 2973. Several Nebraska statutes were relevant to whether a due process liberty interest existed in good time. The first required good time allowances in specified amounts for good behavior and mandated reducing an inmate’s term of commitment by the amount of accumulated good time for parole eligibility purposes. Wolff, 418 U.S. at 546 n. 6, 94 S.Ct. at 2970 n.6. It also provided that good time reductions of an inmate’s term could be forfeited or withheld by the head of the prison on the basis of an inmate’s misconduct after the inmate “ha[d] been consulted regarding the charges of misconduct.” Wolff, 418 U.S. at 546 n. 6, 94 S.Ct. at 2970 n.6. Under a different statute, “flagrant or serious misconduct” could result in both forfeited or withheld good time credits, affecting the term of confinement, and disciplinary segregation affecting only conditions of confinement. Wolff, 418 U.S. at 546-47, 94 S.Ct. at 2969-70. Prison officials had adopted written regulations setting forth policies and procedures for controlling misconduct and imposing discipline. Wolff, 418 U.S. at 548-53, 94 S.Ct. at 2970-73.

The United States Supreme Court noted at the outset that, while an incarcerated person’s “rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff, 418 U.S. at 555, 94 S.Ct. at 2974. Thus, the protection afforded by the Due Process Clause extends to inmates of state prisons, but it can be limited by institutional needs and objectives. See Wolff, 418 U.S. at 556, 94 S.Ct. at 2974-75.

The Supreme Court observed that Nebraska had provided a statutory right to good time credits and had specified that such credits could be forfeited only as a sanction for serious misbehavior. Wolff, 418 U.S. at 557, 94 S.Ct. at 2975. On that basis, the Supreme Court concluded that Nebraska had created an interest of real substance “embraced within Fourteenth Amendment ‘liberty’ ” which entitled Nebraska prison inmates to minimum due process procedures appropriate under the institutional circumstances to insure that the state-created right to good time was not abrogated arbitrarily. Wolff, 418 U.S. at 557, 94 S.Ct. at 2975.

The United States Court of Appeals for the Ninth Circuit recently applied the Sandin/Wolff “interest of real substance” approach to due process inquiries with regard to state-created rights in Gotcher v. Wood (9th Cir. 1995), 66 F.3d 1097. There, Norman Gotcher, a Washington prison inmate, alleged in a § 1983 action that Washington Department of Corrections employees failed to afford him due process in prison disciplinary hearings; his claim was premised on an asserted liberty interest in receiving good time credits. Gotcher, 66 F.3d at 1098-99. The federal district court relied on the “mandatory language/substantive predicate” analysis in concluding that Gotcher did not have a liberty interest in receiving good time. See Gotcher, 66 F.3d at 1098, 1100.

On appeal, the Ninth Circuit reversed. It noted that Washington’s statutes regarding good time credits were indistinguishable from those enacted in Nebraska and held by the Supreme Court in Wolff to create a liberty interest. Gotcher, 66 F.3d at 1100. Because the Supreme Court had abandoned the “mandatory language/substantive predicate” analysis in Sandin and returned to the Wolff principles, the Ninth Circuit held that the federal district court erred in concluding that no liberty interest in good time credits existed. Gotcher, 66 F.3d at 1100-1101.

Our holding in Remington that MSP inmates do not have a liberty interest in good time credits predated Sandin and was premised on the “mandatory language/substantive predicate” analysis of state-created rights. See Remington, 844 P.2d at 52-53. In light of Sandin and Gotcher, it is clear that Remington must be, and is hereby, overruled insofar as it applied that analysis. As a result, we must determine whether Orozco had a liberty interest in good time credits under the Sandin/Wolff due process principles.

Section 53-30-105, MCA (1993), provided:

(1) The department of corrections and human services shall adopt rules providing for the granting of good time allowance for inmates employed in any prison work or activity.... The good time allowance shall operate as a credit on the inmate’s sentence as imposed by the court, conditioned upon the inmate’s good behavior and compliance with the rules made by the department or the warden.
(2) In the event of... a violation of the rules prescribed by the department or warden, the inmate may be punished by the forfeiture of part or all good time allowances.

This statute mandated rules granting good time for work activity as a credit on an inmate’s sentence. Consistent with this statute, the Department adopted Policy No. 505, which required that good time allowances provide a credit on the inmate’s sentence as imposed by the court. The policy clarified when good time accrual begins and set forth the circumstances, including an increase in custody classification, which could result in the loss of the opportunity to earn, or a reduction of, good time credits.

By these legislative and administrative actions, the State created a right to good time as a direct credit to inmates’ sentences. As in Wolff, the good time provisions contained in both § 53-30-105, MCA (1993), and Policy No. 505 directly affect the duration of inmates’ confinement at the MSP. Applying the Sandin/Wolff due process analysis, we conclude that the State had created an interest of real substance sufficiently embraced within Fourteenth Amendment ‘liberty” so as to entitle Orozco to due process procedures appropriate under institutional circumstances. See Sandin, 115 S.Ct. at 2300; Wolff, 418 U.S. at 557, 94 S.Ct. at 2975. As a result, we hold that the District Court erred in determining that no liberty interest existed in this case.

The existence of a liberty interest giving rise to due process requirements is not dispositive, however, of the qualified immunity issue presently before us. As discussed above, our threshold inquiry in addressing qualified immunity is whether the due process right arising from Orozco’s liberty interest in good time credits was clearly established at the time of the individual defendants’ conduct which gave rise to this action. See Boreen, 930 P.2d at 70. We hold that it was not.

We decided Remington in 1992 and held therein — on the basis of the Supreme Court’s “mandatory language/substantive predicate” analysis — that Montana inmates do not have a liberty interest in good time credits. See Remington, 844 P.2d at 53. The classification hearing which resulted in Orozco losing the opportunity to earn additional good time credits, and which he alleges violated his due process rights, occurred on March 28, 1995. Remington was the controlling Montana case on Montana statutes and Department policies relating to good time on the date of Orozco’s hearing. As of that date, then, no Montana case recognized a state-created due process liberty interest in good time credits.

Moreover, the Supreme Court did not decide Sandin, in which it returned to the Wolff “interest of real substance” principles, until June 19, 1995, nearly three months after Orozco’s classification hearing. See Sandin, 115 S.Ct. at 2293. The Ninth Circuit followed with Gotcher in October of 1995. See Gotcher, 66 F.3d at 1097. Even assuming those cases interpreted statutes and policies identical to Montana’s and determined on such bases that an interest of real substance in good time credits existed which gave rise to due process requirements before those credits could be withheld, the cases postdated the conduct of the individual defendants which allegedly violated Orozco’s due process rights in the present case. We conclude, therefore, that the liberty interest in good time credits which gives rise to Orozco’s due process rights here was not clearly established at the time of his classification hearing. As a result, we further conclude that the individual defendants are entitled to qualified immunity from liability for civil damages. See Boreen, 930 P.2d at 75. Accordingly, we hold that the District Court was correct in so concluding.

As previously mentioned, the District Court dismissed the entirety of Orozco’s complaint — which sought not only money damages, but also declaratory and injunctive relief — pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court correctly dismissed the Department from the entirety of Orozco’s § 1983 suit because it is an arm of the State and, therefore, not a “person” within the meaning of § 1983. In addition, the District Court correctly dismissed the damage claim against the individual defendants based on qualified immunity. Given Orozco’s liberty interest in accumulating good time credits, however, we conclude that the District Court improperly dismissed Orozco’s complaint pursuant to Rule 12(b)(6), M.R.Civ.P., with regard to the declaratory and injunctive relief requested under § 1983. See Loney, 905 P.2d at 160. As a result, it is necessary to remand for farther consideration of remaining issues, including what “process” was “due” Orozco before his opportunity to earn good time credits was withdrawn and whether Orozco received the process due him. These issues, insofar as they relate to Orozco’s declaratory and injunctive relief claims, have not been addressed by the District Court because of the early stage at which the District Court dismissed the entirety of Orozco’s complaint and the reasons underlying that dismissal.

For these reasons, we affirm in part, reverse in part and remand this case for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.


text:
    CLAYTON E. DeVOE, Plaintiff and Appellant, v. STATE OF MONTANA, and the HIGHWAY COMMISSION OF THE STATE OF MONTANA, Defendants and Respondents, and CITY OF MISSOULA, Intervenor, Defendant and Respondent.
    No. 96-349.
    Submitted on Briefs October 17, 1996.
    Rehearing Denied March 26, 1997.
    Decided March 10, 1997.
    54 St.Rep. 207.
    281 Mont. 356.
    935 P.2d 256.

      For Appellant: George C. DeVoe, Attorney at Law, Missoula.
    For Respondents: James Nugent, Missoula City Attorney, Missoula; Peter W. LaPanne, Montana Department of Transportation, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Clayton E. DeVoe (DeVoe) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on its findings of fact, conclusions of law and order dated February 26, 1996, and from earlier orders. We affirm.

We address the following issues on appeal:

1. Did the District Court err in permitting the City of Missoula to intervene?
2. Did the District Court err in granting partial summary judgment to the State of Montana and City of Missoula, and denying summary judgment to DeVoe, on the basis that the 1937 easement had not been abandoned?
3. Is the District Court’s finding that the net acreage is currently used for highway purposes clearly erroneous?

In May of 1890, the Missoula County Commissioners granted a petition declaring that a roadway in the Rattlesnake valley area of Missoula was a public highway (1890 public highway). The 1890 public highway proceeded north on Rattlesnake Drive and then turned ninety degrees east where it intersected with Creek Crossing Road.

Approximately fifty years later, C. E. Lucas, Ida Lucas, L. A. Wagoner and Valeria Wagoner (collectively, grantors) granted the State of Montana (State) a right-of-way easement (1937 easement) for the construction of a highway on land adjacent to the 1890 public highway in Missoula. The 1937 easement was formalized by a document entitled “Highway Right of Way Easement” which set forth a metes and bounds description of the property subject to the 1937 easement and described the property as being located in the NWV4NWV4SE J/4 of Section 11, Township 13 North, Range 19 West, Missoula County, Montana. It provided that the 1937 easement:

contain[s] in all 1.23 acres, more or less, including, however, 0.56 of an acre herein described which constitutes a part of an existing public highway. (Gross acreage 1.23; present highway acreage 0.56; net acreage 0.67.)

The 1937 easement further provided that the State was “[t]o have and to hold all of the above described and conveyed property ... as long as the same is used as a public highway.”

The property at issue in this case is the 0.67 of an acre described in the 1937 easement as the net acreage; at the time the 1937 easement was granted, the net acreage was located on the inside of the ninety degree angle on the 1890 public highway. DeVoe is the successor in interest to the grantors of the 1937 easement.

After the State acquired the 1937 easement, it changed the 1890 public highway’s ninety degree turn to a long sweeping curve running northeast across the net acreage. In 1983, the State undertook an intersection improvement project which restored the original ninety degree turn on the 1890 public highway. In 1989, the City of Missoula (City) annexed the portion of the Rattlesnake valley which includes the 1890 public highway and the 1937 easement acreage.

DeVoe filed a declaratory judgment action against the State and the Montana Highway Commission (Highway Commission) in 1992. He alleged that the State’s 1983 improvement project, which removed the long curve crossing the net acreage, constituted an abandonment of the 1937 easement and, as a result, that the net acreage had reverted to him. In its answer, the State contended that a highway easement is abandoned only by official action of the Highway Commission at a regularly constituted meeting. Because the Highway Commission had taken no official action in this regard, the State maintained that it had not abandoned the 1937 easement.

The City petitioned to intervene in DeVoe’s action, pursuant to Rule 24, M.R.Civ.P., claiming a public interest in continued utilization of the 1937 easement. The District Court granted the City’s petition over DeVoe’s objection. DeVoe requested reconsideration of the court’s decision or, in the alternative, partial judgment on the pleadings dismissing the City from the lawsuit. He argued that the City was not a party to the 1937 easement and, therefore, that it did not have standing to assert any rights thereunder. The District Court denied DeVoe’s requests.

DeVoe subsequently moved for summary judgment, claiming that the 1937 easement had terminated via abandonment, extinguishment and reversion, or acts incompatible with the nature of the easement. The City and State opposed DeVoe’s motion and filed a joint cross-motion for summary judgment on the basis that affirmative official action indicating an intent to abandon the 1937 easement had not been taken. The District Court granted summary judgment to the City and State on the abandonment issue, and denied DeVoe’s motion on the reversion issue.

The City subsequently filed a notice of entry of judgment and DeVoe moved to strike it. He also moved the District Court to reconsider its decision denying his motion for summary judgment on the extinguishment and reversion issues. The District Court granted DeVoe’s motion to strike, denied his motion to reconsider and scheduled an evidentiary hearing on all remaining factual issues.

Following the evidentiary hearing, the District Court issued its findings of fact, conclusions of law and order and, thereafter, entered judgment in favor of the City and State. It determined that the 1937 easement had not reverted to DeVoe and that he was not entitled to recover the net acreage or to have title to the net acreage quieted in his favor. DeVoe appeals.

Additional facts are provided below as necessary for our resolution of the issues before us.

1. Did the District Court err in permitting the City to intervene? DeVoe contends that the District Court erred in permitting the City to intervene in the action pursuant to Rule 24, M.R.Civ.R The City maintains that it was a proper intervenor in the action and, furthermore, that an order permitting intervention is not an appealable order pursuant to Rule 1(b), M.R.App.P. Thus, we first must determine whether an order allowing intervention is an appealable order.

Rule 1(b), M.R.App.R, authorizes appeals from final judgments and orders and immediate appeals from certain interlocutory orders enumerated therein. Orders permitting intervention are not mentioned in Rule 1(b), M.R.App.P. A matter not specifically denominated in Rule 1(b), M.R.App.P., is not a proper subject of immediate appeal; therefore, an immediate appeal cannot be taken from an order permitting intervention. Continental Ins. Co. v. Bottomly (1988), 233 Mont. 277, 279, 760 P.2d 73, 75.

In the present case, however, DeVoe is not seeking an immediate appeal of the District Court’s order allowing the City to intervene. He filed a timely notice of appeal after final judgment had been entered in the case and raised and argued the intervention issue in his opening brief.

Rule 2(a), M.RApp.P., outlines this Court’s scope of review in an appeal from a judgment in a civil case. It provides, in pertinent part, that:

the court may review the verdict or decision, and any intermediate order or decision excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.

Rule 2(a), M.R.App.P. As discussed above, no direct appeal was available from the District Court’s order permitting intervention. Thus, the exception clause in Rule 2(a), M.R.App.P., is not applicable here.

We previously have addressed whether an order allowing intervention can be reviewed pursuant to Rule 2(a), M.R.App.R, in the course of an appeal from a final judgment. In In re Custody of R.R.K. (1993), 260 Mont. 191, 859 P.2d 998, we noted that, while an order denying a motion to intervene is not separately appealable under Rule 1, M.RApp.R, the proper appeal from such an interlocutory order lies after entry of final judgment. Custody of R.R.K., 859 P.2d at 1005 (citing Rule 2(a), M.R.App.P.; Bottomly, 760 P.2d at 75-76; Estate of Schwenke v. Becktold (1992), 252 Mont. 127, 130-31, 827 P.2d 808, 810). We also have observed that the only procedure by which an appellant may challenge the propriety of an intervention order is by appeal after entry of final judgment. Estate of Schwenke, 827 P.2d at 810.

Here, DeVoe appealed from the order allowing the City to intervene in the course of his appeal after entry of final judgment. We conclude, therefore, that DeVoe’s appeal from the District Court’s order allowing intervention is properly before us.

With regard to whether the District Court erred in permitting the City to intervene as of right, Rule 24(a)(2), M.R.Civ.P, states that intervention shall be allowed, upon timely application:

when the applicant claims an interest relating to the property or' transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

We recently clarified that a mere claim of interest in the property at issue is insufficient to support intervention as of right under Rule 24(a)(2), M.R.Civ.P. Aniballi v. Aniballi (1992), 255 Mont. 384, 386-87, 842 P.2d 342, 343-44. A district court must determine whether the party seeking intervention has made a prima facie showing of a ‘“direct, substantial, legally protectable interest in the proceedings.’ ” Aniballi, 842 P.2d at 344 (citations omitted). A district court’s determination regarding whether a party has made a prima facie showing is a conclusion of law. Sacco v. High Country Independent Press (1995), 271 Mont. 209, 236, 896 P.2d 411, 427 (citations omitted). We review conclusions of law to determine whether the court’s interpretation of the law is correct. Rafanelli v. Dale (1996), [278 Mont. 28], 924 P.2d 242, 245 (citations omitted).

Here, the City premised its motion to intervene as of right on its 1989 annexation of the portion of the Rattlesnake valley in which the 1890 public highway and 1937 easement are located, contending that the annexation gave it an interest in the continued use of the 1937 easement within its territorial borders for highway purposes. The District Court examined and applied a number of statutes, concluding that they authorized the City to control, supervise and maintain the 1890 public highway and 1937 easement property because the City’s 1989 annexation brought them within its jurisdiction. On that basis, the court further concluded that the City had a protectable interest in the 1937 easement property which is the subject of this action and granted the City’s motion to intervene.

DeVoe advances several arguments in support of his contention that the District Court erred in concluding that the City was entitled to intervene under Rule 24(a), M.R.Civ.R He does not, however, challenge the court’s underlying statutory analysis. A district court’s findings and judgment are presumed correct and will not be overturned unless the appellant establishes error. Frank L. Pirtz Const. v. Hardin Town Pump (1984), 214 Mont. 131, 135, 692 P.2d 460, 462. Thus, for purposes of this case, we presume that the District Court correctly concluded that the City is statutorily authorized to control and maintain both the 1890 public highway and the 1937 easement and highway uses thereon, on the basis of its 1989 annexation of the area in which the 1937 easement is located.

DeVoe’s primary assertion of error is that the District Court’s conclusion that the 1989 annexation gave the City a “protectable interest” in the 1937 easement focuses on the wrong time frame. According to DeVoe, the 1937 easement terminated by abandonment or reversion in 1983; as a result, no easement existed in 1989 in which the City could have acquired any interest — much less the “direct, substantial, legally protectable interest” required by Aniballi — via annexation.

DeVoe’s argument is misplaced in the context of the City’s motion to intervene as of right. It is premised on an ultimate resolution in DeVoe’s favor of the substantive issues raised in the case and, as a general matter and specifically in this case, the resolution of substantive issues on the merits comes later in the proceedings than a motion to intervene in hopes of affecting that resolution. Thus, issues relating to the City’s motion to intervene cannot be dependent oh whether DeVoe ultimately prevails; indeed, if a plaintiff were allowed to prevent intervention at the outset of an action, by a person with an adverse interest in the action, by merely asserting that the plaintiff’s position would prevail at the end of the action, no intervention as of right under Rule 24(a), M.R.Civ.P., could ever be accomplished. We conclude that the District Court did not focus on the wrong time frame in determining whether the City had a sufficient interest in the property at issue to support a right to intervene under Aniballi.

Nor does Aniballi support DeVoe’s contention that the District Court erred in concluding that the City had a legally protectable interest. There, parents sought intervention as a matter of right in a marital dissolution action between their son and daughter-in-law in order to protect an alleged interest in the marital home. The district court determined that the parents’ claimed interest was barred by the statute of frauds and, to a large extent, by the statute of limitations. On those bases, the court concluded that the parents did not have “an interest relating to the property or transaction which is the subject of the action.” Aniballi, 842 P.2d at 343.

On appeal, we rejected the parents’ argument that intervention must be allowed whenever an applicant claims an interest relating to property involved in the lawsuit. Aniballi, 842 P.2d at 343. We held that a prima facie showing of a direct, substantial, legally protectable interest in the proceedings is necessary to support a claim for intervention under Rule 24(a), M.R.Civ.P. Aniballi, 842 P.2d at 344 (citations omitted). In affirming the district court’s denial of the parents’ motion to intervene, we implicitly concluded that they had not made a sufficient showing of a protectable interest in the proceedings. See Aniballi, 842 P.2d at 344.

Unlike the parents in Aniballi, the City established an interest relating to the property which is the subject of the action before us. It acquired that interest in 1989 when it annexed the area of the Rattlesnake valley in which the 1890 public highway and 1937 easement are located, and became responsible for maintenance of the 1890 public highway and the net acreage. Moreover, in Aniballi, the central property-related issue in the dissolution action was the allocation of rights to the marital property between the spouses, not title in rem or the existence or amount of any debt allegedly owing the parents; thus, the parents’ claim was not related to the central issue in the case. Aniballi, 842 P.2d at 343. Here, the City’s interest in the 1937 easement is in the nature of a public interest in continued use of land within its jurisdiction for highway purposes. Thus, the City’s interest involves the central and dispositive issue in this case; namely, whether the 1937 easement terminated in 1983. We conclude, therefore, that the District Court did not err in determining that the City had established a legally protectable interest in the 1937 easement as required by Rule 24(a)(2), M.R.Civ.P, and Aniballi.

The question remains, however, whether the City’s interest is adequately represented by the State. If it is, the City was not entitled to intervene as of right because Rule 24(a), M.R.Civ.P., authorizes such intervention only where the applicant’s interest is not “adequately represented by existing parties.”

Under the District Court’s unchallenged statutory analysis, the City — rather than the State — is responsible as a result of the 1989 annexation for the repair and maintenance of the 1890 public highway and the 1937 easement appurtenant thereto. In addition, the City asserted potential future uses of the 1937 easement for public highway purposes relating to its overall transportation plan for the Rattlesnake valley. Thus, the City’s current responsibilities with regard to the 1890 public highway and the 1937 easement, together with its interest in continued use for highway purposes of the subject property within its jurisdiction, render the City’s interest in the 1937 easement substantially different from the State’s interest as the named holder of the 1937 easement.

DeVoe contends that it was improper for the District Court to consider the future uses the City plans for the easement acreage, but he cites to no authority in support of the contention. While it may be true that potential future uses would be irrelevant in determining the substantive issues discussed below regarding abandonment and reversion, it was not inappropriate for the District Court to consider such potential future uses, reflecting concerns of the City and its citizens, in determining whether the City’s interest would be adequately represented by the State. Where, as here, the City and its citizens will experience greater consequences than the State if use of the 1937 easement for highway purposes is lost, we conclude that the District Court did not err in determining that the City’s interest in the 1937 easement is not adequately represented by the State.

Finally, we address DeVoe’s argument that, once the City was allowed to intervene as a “real party in interest,” the District Court should have dismissed the State because the State “had no further business in this litigation.” DeVoe’s assertions to the contrary notwithstanding, there is nothing illogical about two entities having different protectable interests in the easement property at issue here. Nor does he cite to any authority under which a legal impediment to such a situation exists. Regardless of the City’s status as an intervenor, the State is the named holder of the 1937 easement and DeVoe properly brought this action against the State. Moreover, DeVoe did not move to dismiss the State from the action after the City was permitted to intervene and, as a result, he raises this issue for the first time on appeal. We have repeatedly held that we will not address issues raised for the first time on appeal. See Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 901 P.2d 112; Carter v. Nye (1994), 266 Mont. 226, 879 P.2d 729.

We hold that the District Court did not err in permitting the City to intervene as of right under Rule 24(a), M.R.Civ.P.

2. Did the District Court err in granting partial summary judgment to the City and State, and denying summary judgment to DeVoe, on the basis that the 1937 easement had not been abandoned?

DeVoe and the City and State filed cross-motions for summary judgment on the issue of whether the State had abandoned the 1937 easement. The District Court determined that the City and State established that no official action to abandon the 1937 easement had been taken and that DeVoe had not established the existence of a genuine issue of material fact to sustain his abandonment theory. Accordingly, it granted partial summary judgment to the City and State on this issue.

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. Carelli v. Hall (1996), [279 Mont. 202], 926 P.2d 756, 759 (citation omitted).

The moving party has the initial burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Carelli, 926 P.2d at 759 (citation omitted). Only when the moving party satisfies its initial burden does the burden shift to the party opposing summary judgment to present evidence raising a genuine issue of material fact. Carelli, 926 P.2d at 759-60 (citation omitted). Material issues of fact are identified by looking to the substantive law governing the proceedings. Carelli, 926 P.2d at 760 (citation omitted).

Here, the parties agree that the substantive law regarding abandonment of easements by governmental entities is set forth in Baertsch v. County of Lewis & Clark (1992), 256 Mont. 114, 845 P.2d 106 and City of Billings v. O. E. Lee Company (1975), 168 Mont. 264, 542 P.2d 97. The pivotal element required to prove that a governmental entity has abandoned public property is a showing of clear intent to abandon. Baertsch, 845 P.2d at 111. The conduct which is claimed to demonstrate the intent to abandon must be some affirmative official act so decisive and conclusive as to indicate a clear intent to abandon. Baertsch, 845 P.2d at 111 (citing Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 359, 600 P.2d 163); City of Billings, 542 P.2d at 99. Abandonment cannot be established by mere implication. Baertsch, 845 P.2d at 111. Moreover, the question of abandonment is generally one of fact, not of law. City of Billings, 542 P.2d at 99 (citation omitted). Thus, we must examine the record as it existed at the time of the parties’ cross-motions for summary judgment on the issue of abandonment of the easement to determine whether a genuine issue of material fact existed which precluded summary judgment in favor of the City and State.

With regard to any formal official action indicating a clear intent to abandon the easement, the City and State presented evidence that DeVoe attempted to have the Highway Commission release the 1937 easement in October of 1991. The Highway Commission responded that it could not take action on his request until it received and reviewed a transportation plan for the Rattlesnake area which was expected to be completed by March of 1992. The Highway Commission did not act on DeVoe’s request for release of the 1937 easement prior to his filing of this lawsuit in August of 1992. Thus, there was no evidence of a formal official act by the Highway Commission indicating a clear intent to abandon the 1937 easement.

We have never held, however, that a governmental entity can abandon an easement only by adopting a formal resolution to do so at a regularly scheduled meeting. Indeed, in City of Stockton v. Miles and Sons, Inc. (N.D. Cal. 1958), 165 F.Supp. 554, on which we relied in City of Billings for the principle that intent of a governmental body to abandon must be shown by official act, the federal district court rejected the city’s contention that it had not abandoned a water channel because it had not taken formal action to do so via a specific ordinance or resolution. City of Stockton, 165 F.Supp. at 559-60. Having determined that the crucial question was whether the record showed official action by the city or an authorized body or person indicating a clear intention to abandon, the court found many instances of such official action on the record before it. City of Stockton, 165 F.Supp. at 560. Among them were the appropriation of funds for filling the channel, authorization by the city for property owners along the channel — and other private parties — to place fill material in the channel, and the placement by the city of at least seven fills of many thousands of cubic feet of dirt, topped with an asphalt surface of permanent appearance, in the channel. City of Stockton, 165 F.Supp. at 557, 560. The court concluded that the city clearly intended to abandon and, in fact, effectively abandoned the water channel. City of Stockton, 165 F.Supp. at 560. Under our cases, the question is whether the record evidences any affirmative official act by the State which is sufficiently decisive and conclusive to indicate a clear intent to abandon. Baertsch, 845 P.2d at 111; City of Billings, 542 P.2d at 99.

DeVoe’s overall position regarding abandonment is that the State’s 1983 removal of the roadway surface which curved across the net acreage from 1937 to 1983 was an official and decisive act by the State indicating clear intent to abandon the 1937 easement. In arguing that the District Court erred in granting summary judgment to the State and City on the abandonment issue, he contends that the deposition testimony of James Williams (Williams) raised a genuine issue of material fact in this regard.

Williams was the State’s field project manager in charge of the 1983 project involving the net acreage. He testified that, in that capacity, he supervised the removal of the long curve running northeast across the net acreage and the restoration of the original ninety degree angle on the 1890 public highway. He also opined that, as he understood the 1937 easement language, the property would revert “if use as a public highway ceased.” He recalled a 1991 conversation with DeVoe about the 1937 easement and the possibility of reversion in which he “probably told PeVoe] that there was a chance that [the State] could give it up or it could be given up.” Finally, he testified that he had no authority to be involved in a reversion in any way.

There is no dispute that Williams’ acts in supervising the removal of the roadway surface from the net acreage and restoration of the original ninety degree angle of the 1890 public highway were actions authorized by the State. There also is no dispute that those actions evidenced the State’s clear intent to reroute the driving surface of the 1890 public highway to its original course. The question before us, however, is whether Williams’ testimony about those authorized and official actions raised a genuine issue of material fact regarding an intention by the State to abandon and cease to use the 1937 easement as a public highway. We conclude that it does not.

Montana statutes define highways broadly and clarify that a public highway consists of more than the surface of a roadway. Title 60, MCA, entitled “Highways and Transportation,” governs matters relating to highways in Montana. Under § 60-1-103(18), MCA, a “highway” is statutorily defined to include rights-of-way and other interests in land, as well as highway-related structures and signs. Similarly, a “public” highway includes the entire area within the right-of-way, which is defined as an interest in property acquired for or devoted to highway purposes. Sections 60-1-103(19) and (23), MCA.

Applying these statutory definitions, it is clear that the 1890 public highway includes the net acreage granted to the State for use as a public highway via the 1937 right-of-way easement. It is equally clear that DeVoe’s basic premise in this regard, that a “public highway” is limited to the driving surface — or, stated conversely, that “asphalt” is the legal equivalent of “public highway” — is incorrect. As a direct corollary, while Williams’ testimony regarding the 1983 removal of the asphalt from the curved route crossing the net acreage constitutes evidence of intent to “abandon” the roadway, it does not constitute evidence of an official act by the State indicating clear intent to abandon the 1937 easement acquired for use “as a public highway.”

Nor does any other testimony by Williams relate to, or evidence, intent by the State to abandon the 1937 easement. Williams’ opinion that reversion would occur “if use as a public highway ceased” relates, if at all, to the use and reversion issue discussed below. Similarly, Williams’ conversation with DeVoe in 1991 related solely to the reversion question; it had no bearing on the question of the State’s intent to abandon the 1937 easement at the time of an intersection improvement project undertaken eight years prior to the conversation.

We conclude that the summary judgment record contains no evidence raising a genuine issue of material fact as to clear intent by the State to abandon the 1937 easement in 1983. On that basis, we hold that the District Court did not err in granting partial summary judgment to the City and State, and denying summary judgment to DeVoe, on the basis that the 1937 easement had not been abandoned.

3. Is the District Court’s finding that the net acreage is currently used for highway purposes clearly erroneous?

At the outset of our consideration of this issue, we reiterate the well-settled principle in Montana that nonuse is insufficient on a stand-alone basis to establish abandonment of an easement by a governmental entity. Baertsch, 845 P.2d at 111; City of Billings, 542 P.2d at 99. In this regard, we observe that the question of whether, or the extent to which, nonuse alone can effectuate the same result under a reversionary clause contained in a right-of-way easement granted to the State is not before us in this case. The parties have neither raised nor briefed that issue and, as a result, we do not address it here. Nor should our discussion of the issue which is before us be construed as an implicit conclusion that such nonuse would result in reversion of a right-of-way easement held by a governmental entity for public highway use.

DeVoe’s complaint in this action asserted that the net acreage granted to the State in the 1937 easement for “as long as the same is used as a public highway,” which consisted of 0.67 of an acre, reverted to him by operation of law in 1983 as a result of the State’s intersection improvement project and its alleged nonuse of the net acreage thereafter. The City and State disagreed, pointing to continuing uses of the net acreage. Following an evidentiary hearing, the District Court found that a number of highway-related uses continued to exist on the net acreage and, on that basis, concluded that the 1937 easement had not reverted to DeVoe.

We note, as did the District Court, that DeVoe changed his position regarding the extent of the reversion at the evidentiary hearing. There, he expressly disclaimed the reversion alleged in his complaint of the entire 0.67 of an acre net acreage described in the 1937 easement. Instead, he asserted the reversion of only a portion of the net acreage, totaling less than 0.25 of an acre, and attempted to establish that no highway or highway right-of-way uses were occurring on that limited portion of the net acreage. The District Court observed that DeVoe’s position at the hearing was not only inconsistent with the basis for relief alleged in his complaint, but that DeVoe had not obtained a survey or presented other evidence from which it could determine precisely which land he was seeking to acquire via reversion based on nonuse.

We agree with the District Court’s observations with regard to DeVoe’s change of position. In addition, we note that DeVoe cites to no authority under which he could obtain, via reversion, less than the total net acreage described in the 1937 easement. Like the District Court, we will address this issue as it was presented in DeVoe’s complaint; namely, whether DeVoe is entitled to reversion based on nonuse for highway purposes of the 0.67 of an acre net acreage referred to in the 1937 easement.

DeVoe contends that the District Court erred in finding that the net acreage currently is used for highway or highway right-of-way purposes. We review a district court’s findings of fact to determine whether they are clearly erroneous, looking first at whether the findings are supported by substantial evidence. Rule 52(a), M.R.Civ.R; Aasheim v. Reum (1996), 277 Mont. 471, 473, 922 P.2d 1167, 1169 (citation omitted).

Martin Van Mil (Van Mil), a civil engineer with the Montana Department of Transportation (Department), testified that the toe of the fill material for the relocated roadway of the 1890 public highway extends approximately thirty feet into the net acreage; in addition, a concrete curb and gutter, and asphalt for the turning radius at the intersection of Rattlesnake Drive and Creek Crossing Road, extend approximately fifteen feet into the net acreage. According to Van Mil, other current highway-related uses of the net acreage include the placement of traffic control devices, street signs and snow plowed from the highway. John Alan Bergum, a civil engineer for the Department who supervises right-of-way designs and plans, corroborated Van Mil’s testimony.

We conclude that the District Court’s finding that the net acreage currently is used for highway purposes is supported by substantial evidence and is not otherwise clearly erroneous. On that basis, we conclude that the District Court correctly determined that the 1937 easement had not reverted to DeVoe.

Affirmed.

JUSTICES NELSON, HUNT, LEAPHART and TRIEWEILER concur.


author: JUSTICE LEAPHART

text:
    MARGARET EPPERSON, Petitioner and Respondent, v. WILLIS CORROON ADMINISTRATIVE SERVICES CORPORATION, Respondent and Appellant, ST. PETER’S COMMUNITY HOSPITAL, Employer.
    No. 96-610.
    Submitted on Briefs January 9, 1997.
    Decided March 11, 1997.
    54 St.Rep. 226.
    281 Mont. 373.
    934 P.2d 1034.

      For Appellant: Norman H. Grosfield; Utick & Grosfield, Helena.
    For Respondent: Joe Seifert; Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Willis Corroon Administrative Services Corporation (Corroon), appeals from the decision of the Workers’ Compensation Court finding respondent, Margaret Epperson’s (Epperson), request for hearing as timely. We affirm.

We address the following issue on appeal:

Does an Order of Determination only become “final” under § 39-72-612, MCA, once an administrative review has been completed or once the time for seeking review has expired?

BACKGROUND

In 1993, Epperson, a long-time employee of St. Peter’s Hospital, began working as a nurse in a newly constructed wing of the hospital. Over the next two years, Epperson developed upper respiratory symptoms including, cough, nasal congestion, shortness of breath, and watery eyes. In May of 1995, Epperson’s physician, Dr. Earl Book, released her from work. In June of 1995, Epperson, without an attorney, filed a claim for occupational disease benefits. After receiving Epperson’s claim, the Department of Labor & Industry (the Department), directed Epperson to submit to a medical examination. In September of 1995, Epperson submitted to a medical examination conducted by Dr. Michael Sadaj (Dr. Sadaj) to determine if she suffered from an occupational disease. Although Dr. Sadaj did not find that Epperson had an occupational disease, he recommended further testing. Following this examination, the Department issued an “order referring copy of medical reports to parties” which indicated that Epperson’s occupational disease claim would be denied. This order also notified Epperson of her right to a second examination.

Epperson did not request a second examination and on November 27,1995, the Employment Relations Division (ERD) issued an “order of determination” which denied her claim. This order also notified Epperson of a right to request a hearing within 20 days and stated:

Pursuant to 39-72-612, MCA, the parties are hereby notified a party adversely affected by this Order of Determination has twenty (20) days from the date of this Order to request a hearing before the Department of Labor & Industry Legal Division.

The November 27, 1995, order also explained that failing to request a hearing would make the order final.

Epperson did not request a hearing within 20 days. However, after consulting with counsel, Epperson requested a hearing in January of 1996. The insurer, Corroon, moved to dismiss this request as untimely and a Department hearing officer agreed and dismissed the case. Epperson appealed this decision to the Workers’ Compensation Court which overruled the hearing officer’s decision and remanded the case for a hearing on the merits.

In its holding, the Workers’ Compensation Court found that the hearing officer erred in dismissing Epperson’s claim because the Department’s November, 1995 order was not a “final” order of determination within the meaning of § 39-72-612, MCA. The Workers’ Compensation Court explained that a Department order does not become final until after the Commissioner has completed her administrative review or after the time for seeking review expires. The court held that the time for seeking administrative review was 90 days and Epperson had filed her request within that time period.

DISCUSSION

Does an Order of Determination only become “final” under § 39-72-612, MCA, once an administrative review has been completed or once the time for seeking review has expired?

In reviewing Workers’ Compensation Court decisions, we review the findings of fact to determine if they are supported by substantial, credible evidence and we review conclusions of law to determine if they are correct. Turjan v. Valley View Estates (1995), 272 Mont. 386, 390, 901 P.2d 76, 79 (citing Caekaert v. State Comp. Mut. Ins. Fund (1994), 268 Mont. 105, 111, 885 P.2d 495, 498). As this case exclusively deals with a single question of law, we will review the Workers’ Compensation Court’s conclusion of law to determine if it was correct.

In this appeal, Corroon contends that Epperson failed to request a hearing within the 20-day limit imposed by § 39-72-612(1), MCA. Section 39-72-612(1), MCA, states:

(1) Within 20 days after the department has issued its order of determination as to whether the claimant is entitled to benefits under this chapter, a party may request a hearing. In order to perfect an appeal to the workers’ compensation judge, the appealing party shall request a hearing before the department. The department shall grant a hearing, which may be conducted by telephone or by videoconference. The department’s final determination may not be issued until after the hearing.

This section establishes the time frame within which to request a hearing. An untimely request for hearing must be dismissed. Cf. First Security Bank of Havre v. Harmon (1992), 255 Mont. 168, 172, 841 P.2d 521, 524 (time limits fixed for appeal are mandatory and jurisdictional and failure to perfect an appeal within the time allowed requires dismissal of the appeal).

Epperson sought to avoid the consequences of the above statute by arguing that she should receive the benefit of the more liberal 90-day time frame for requesting a hearing under the Department’s administrative regulations. Section 24.29.215(2), ARM (1987). While recognizing that Epperson had properly read § 24.29.215(2) ARM (1987), (read in conjunction with § 24.29.207(6), ARM (1983)) as granting her 90 days to request a hearing, the Workers’ Compensation Court rejected this argument noting that this 90-day provision conflicts with the 20-day statutory period for requesting a hearing under § 39-72-612 MCA. The Department cannot adopt regulations contrary to or conflicting with an express statute, Bick v. Montana Department of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420. Thus, since the administrative grant of a 90-day period within which to request a hearing directly conflicts with the statutory limit of 20 days, the administrative regulation is void as applied to an occupational disease determination. Michels v. Dept. of Social & Rehab. Services (1980), 187 Mont. 173, 177, 609 P.2d 271, 273.

The court then focused on the provisions of subsection (1) of § 24.29.215, ARM (1987), which provides as follows:

(1) A party seeking administrative review under ARM 24.29.206 must make a written request for administrative review to the division [Department] within ninety days of notice of adverse action.

Contrary to subsection (2) which pertains to requests for hearings, subsection (1) pertains to requests for administrative review. Requests for administrative review do not conflict with the “request for hearing” language of § 39-72-612, MCA, and thus subsection (1), unlike subsection (2), is not void.

The Workers’ Compensation Court reasoned, as we agree, that the Department’s November 27th order was not an order of determination within the meaning of § 39-72-612, MCA. This section refers to the Department and “its order of determination.” As the court noted, “[t]he quoted section connotes finality, with a hearing as the next recourse. The order contemplated by the section is the last and final order issued by the Department without hearing, and not some initial or non-final order.” In this case, ERD’s November 27, 1995 Order of Determination was not a final order so long as it was subject to administrative review without a hearing under subsection (1) of § 24.29.215, ARM (1987). “Administrative review” is an informal review of “any division [Department] order” by the Commissioner of Labor or her designee and is governed by § 24.29.206, ARM (1983).

Under § 24.29.215(1), ARM (1987), Epperson had 90 days from the November 27, 1995 “adverse action” to request an administrative review. Epperson’s January 30,1996, request was filed 64 days after the ERD’s order, well within that 90-day time period. Epperson’s January 30, 1996, filing was both a request for a hearing and, effectively, a waiver of her right to seek administrative review. With her right to administrative review having been waived, the ERD order became final on January 30, 1996, and her appeal was timely under § 39-72-612, MCA, since it was filed that same date.

The ERD notice to Epperson of its November 27, 1995 order erroneously stated that a failure to request a hearing within 20 days would make the order final. We hold that under § 39-72-612, MCA, the 20-day period for requesting a hearing does not commence until the order is “final” and that an order is not final until the Commissioner has completed her administrative review or until the time for seeking review expires.

Affirmed.

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