author: JUSTICE NELSON JUSTICE GRAY,

text:
    MIKE SPRINGER, Plaintiff, Respondent and Cross-Appellant, v. JASON BECKER, a police officer for the City of Bozeman; CITY OF BOZEMAN, as a political subdivision of the State of Montana, Defendants and Appellants.
    No. 96-602.
    Submitted on Briefs March 6, 1997.
    Decided August 26, 1997.
    54 St.Rep. 876. 943 P.2d 1300.
    284 Mont. 267.

      For Appellant: Barry G. O’Connell, Moore, O’Connell & Refling, Bozeman.
    For Respondent: Nathan J. Hoines, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from certain judgments entered by the Eighteenth Judicial District Court, Gallatin County. On June 26,1996, the District Court granted Plaintiff Springer (Springer) summary judgment on issues involving the City of Bozeman’s liability to Springer for damages. On July 11, 1996, the District Court entered judgment on a jury verdict for damages in Springer’s favor and awarded Springer costs. From these judgments, Defendants appeal and Springer cross appeals. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.

We address the following issues raised on appeal:

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

2. Did the District Court abuse its discretion in awarding certain costs to Springer?

We also address the following issue raised on cross appeal:

3. Did the District Court abuse its discretion in failing to award Springer attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P, for proving requests for admissions that Defendants denied?

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Mike Springer (Springer) owned a 1968 Volkswagen van in September 1992 which he parked on the 2000 block of South Rouse in Bozeman, Montana. On September 24, 1992, Parking Control Officer Bill McManis (McManis), placed a “Notice of Abandoned Vehicle” on Springer’s van which specified a tow date of September 25, 1992. Springer observed this notice and on September 25,1992, prior to his van being towed, Springer moved his van from the east side of the street to the west side of the street. On September 28,1992, Springer’s van was towed. Subsequently, Police Officer Jason Becker signed a Gallatin County Junk Vehicle Release form and Springer’s van was destroyed. Springer was never notified that his van had been towed.

Springer brought this action against Defendants Jason Becker and the City of Bozeman (collectively, the City) to recover damages for destruction of his 1968 Volkswagen van. The City first brought a motion for summary judgment which the District Court denied. Subsequently, Springer filed a motion for summary judgment which the District Court granted on June 26,1996. The District Court held that Springer’s van was not a junk vehicle as defined by § 75-10-501(4), MCA (1991), nor was the van an abandoned vehicle as defined by § 61-12-401(1), MCA (1991). On June 27, 1996, a jury trial was held on the issue of damages and a verdict of $1,500.00 was returned in Springer’s favor. On July 11, 1996, the District Court entered judgment for Springer in the amount of $1,500.00 in damages plus $1,636.32 in costs. The City appeals both the court’s June 26, 1996 Order granting Springer summary judgment and the court’s July 11, 1996 Judgment in favor of Springer. Springer cross appeals raising the issue of whether the District Court abused its discretion by failing to award him attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.

DISCUSSION

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

After a hearing on Springer’s motion for summary judgment, the District Court determined that no genuine issues of material fact were in dispute and concluded that Springer’s van was not a junk vehicle pursuant to § 75-10-501(4), MCA (1991), and was not an abandoned vehicle pursuant to § 61-12-401(1), MCA (1991). The District Court, therefore, held that the City did not take reasonable efforts to notify Springer after his vehicle had been towed, pursuant to § 61-12-402, MCA (1991). Accordingly, the District Court granted Springer summary judgment.

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 a motion for summary judgment de novo and apply the same criteria under Rule 56(c), M.R.Civ.P, as did the district court. DeVoe v. State (1997), [281 Mont. 356], 935 P.2d 256, 262. The moving party carries the initial burden of establishing the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. DeVoe, 935 P.2d at 262 (citing Carelli v. Hall (1996), 279 Mont. 202, 207, 926 P.2d 756, 759). If the movingparty satisfies its initial burden, the burden then shifts to the party opposing summary judgment to present evidence raising a genuine issue of material fact. DeVoe, 935 P.2d at 263 (citation omitted). “Material issues of fact are identified by looking to the substantive law governing the proceedings.” DeVoe, 935 P.2d at 263 (citation omitted).

Section 75-10-501(4), MCA (1991), defines a “junk vehicle” as a “discarded, ruined, wrecked, or dismantled motor vehicle, including component parts, which is not lawfully and validly licensed and remains inoperative or incapable of being driven.” Pursuant to § 61-12-401(1), MCA (1991), before a vehicle can be taken into custody, whether it is designated as a “junk vehicle” or not, it must have been abandoned for more than five days on a city street. Furthermore, § 61-12-402, MCA (1991), requires that when a vehicle is taken into custody, notice must be given to the registered owner of the vehicle concerning the location of the vehicle by a registered or certified letter mailed, at least 30 days before the vehicle is sold, to the latest address shown in the records of the office of the department of justice, return receipt requested and postage prepaid. However, an exception to this notice requirement provides that a vehicle found by law enforcement officials to be a “junk vehicle” as defined by § 75-10-501, MCA, and certified as having an appraised value of $100 or less, as determined by the Department of Revenue, may be directly submitted for disposal without notice and without a required holding period. Section 61-12-402(6), MCA (1991).

The City, based on the above statutory sections, argues that summary judgment was not proper in this case because genuine issues of material fact existed. Specifically, the City argues that the District Court ignored the uncontroverted affidavits of Bill McManis and Arietta Derleth which stated that Springer’s 1968 Volkswagen van had been parked on a city street for more than five days; had expired license plates; had structural damage and lacked windshield wipers; and had an assessed value of less than $100.00. The City asserts that based on these affidavits, the issues of whether Springer’s van was a “junk vehicle” and whether the City properly disposed of Springer’s van should have been presented to a jury, and, therefore, we should reverse the District Court’s Order granting Springer summary judgment.

Springer responds that we should affirm the District Court’s Order granting his motion for summary judgment because the City has failed to raise any genuine issues of material fact. First, Springer argues that the City failed to argue that a genuine issue of material fact existed as to the third requirement of § 75-10-501(4), MCA(1991), which provides that before a vehicle can be classified as a junk vehicle, it has to remain “inoperative or incapable of being driven.” Springer asserts that the undisputed and uncontroverted evidence shows that his van was operable and capable of being driven because he had moved his van from the east side of the street to the west side of the street before it was towed and destroyed. Springer, therefore, contends that because all three elements of § 75-10-501(4), MCA (1991), were not satisfied, his van could not be classified as a junk vehicle.

Second, Springer argues that the City failed to argue that a genuine issue of material fact existed as to whether Springer’s van was an abandoned vehicle pursuant to § 61-12-401(1), MCA (1991). Springer again asserts that it is an uncontroverted fact that after he observed the “N otice of Abandoned Vehicle,” but before the City towed his van, he moved his van from the east side of the street to the west side of the street. Furthermore, Springer points out that McManis admitted in his deposition that he had no personal knowledge concerning the length of time that Springer’s van had been parked on the street and that he did not believe that Springer’s van was an abandoned vehicle. Therefore, Springer contends that, based upon these uncontroverted facts alone, his van could not be classified as an abandoned vehicle under § 61-12-401(1), MCA(1991). Finally, relying on Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186, Springer argues that the City should be equitably estopped from arguing that Springer’s van was an abandoned vehicle based on the actions of McManis and the City’s violation of their policy concerning abandoned vehicles.

It is important to first note that the transcript of the June 24, 1996 summary judgment hearing is not included in the record provided to this Court on appeal. The City, as appellant, had a duty under Rule 9(a), M.R.App.P., to provide this Court with a record sufficient to enable us to rule upon the issues raised. While it would be appropriate to dismiss this appeal for the City’s failure to provide this Court with a sufficient record, dismissal need not be automatic in every instance where a party fails to strictly follow the Rules of Appellate Procedure. Williams v. Rigler (1988), 234 Mont. 161, 163, 761 P.2d 833, 834. Here, while the lack of a summary judgment hearing transcript limits our review of this issue, any detriment inures to the City, not Springer. Therefore, we will address the issues raised by the City.

We agree with Springer that the City failed to present an argument concerning the third requirement of § 75-10-501(4), MCA (1991), and, thereby, failed to raise a genuine issue of material fact concerning the classification of Springer’s van as a junk vehicle. From the record provided this Court, we note that it is uncontroverted that Springer moved his van from the east side of the street to the west side of the street before the City towed and destroyed his van. Additionally, McManis acknowledged in his deposition that prior to having Springer’s van towed and impounded, he did not know if the van was capable of being operated and driven. Consequently, we conclude that the undisputed and uncontroverted facts show that Springer’s van was operable and capable of being driven prior to the time the City had Springer’s van towed and destroyed. Accordingly, we hold that the District Court correctly determined that Springer’s van was not a junk vehicle as defined by § 75-10-501(4), MCA (1991).

Next, pursuant to § 61-12-401(1), MCA (1991), before a vehicle can be taken into custody, whether it is a junk vehicle or not, it must have been abandoned for more than five days on a city street. We again agree with Springer that the City has failed to raise any genuine issues of material fact concerning this issue. The record shows that after observing the “Notice of Abandoned Vehicle” placed on his van by McManis on September 24, 1992, Springer moved his van to the opposite side of the street the next day. Furthermore, McManis admitted in his deposition that he had no personal knowledge of how long Springer’s vehicle had been parked on the city street and he further admitted that he did not believe that the van was an abandoned vehicle, but rather that the vehicle was a junk vehicle. Based on these uncontroverted facts, we hold that the District Court correctly concluded that Springer’s van was not an abandoned vehicle pursuant to § 61-12-401(1), MCA (1991).

We conclude that the record provided to us contains no evidence raising a genuine issue of material fact as to whether Springer’s van was a junk or abandoned vehicle. On that basis, we further conclude that Springer was entitled to summary judgment as a matter of law. Accordingly, we affirm the District Court’s Order granting Springer summary judgment, wherein the District Court ruled that Springer’s van was not a junk vehicle pursuant to § 75-10-5,01(4), MCA (1991), and was not an abandoned vehicle pursuant to § 61-12-401(1), MCA (1991), and, therefore, concluded that the City did not take reasonable efforts to notify Springer- after his vehicle had been towed, pursuant to § 61-12-402, MCA (1991). Consequently, based on this holding, we do not reach Springer’s claim that the City was estopped from arguing that Springer’s van was an abandoned vehicle.

2. Did the District Court abuse its discretion in awarding certain costs to Springer?

In its order granting Springer’s motion for summary judgment, the District Court scheduled a jury trial to hear the issue of damages. After this trial, the jury awarded Springer $1,500.00 in damages. Thereafter, pursuant to § 25-10-201, MCA, Springer filed a “Bill of Costs” with the District Court in the amount of $1,636.32. Subsequently, the District Court entered judgment awarding Springer $1,500.00 in damages and $1,636.32 in costs.

Section 25-10-201, MCA, provides:

A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:

(1) the legal fees of witnesses, including mileage, or referees and other officers;

(2) the expenses of taking depositions;

(3) the legal fees for publication when publication is directed;

(4) the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial;

(5) the legal fees paid stenographers for per diem or for copies;

(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;

(7) the reasonable expenses of making transcript for the supreme court;

(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and

(9) such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.

While the trial court has broad authority in taxing costs, Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 333, 684 R2d 1041, 1048, not every litigation expense is recoverable, Luppold v. Lewis (1977), 172 Mont. 280, 292, 563 P.2d 538, 545. Rather, “[o]nly those costs delineated in § 25-10-201, MCA, may be charged to the opposing party unless the item of expense is taken out of § 25-10-201, MCA, by a more specialized statute, by stipulation of the parties or by rule of court.” Thayer v. Hicks (1990), 243 Mont. 138, 158, 793 P.2d 784, 796-97 (citing Luppold, 563 P.2d at 545). Here, because neither of the parties argue that the disputed costs are controlled by a more specific statute, stipulation of the parties or a rule of court, § 25-10-201, MCA, controls this issue. We review the District Court’s award of costs to determine whether the District Court abused its discretion. Gilluly v. Miller (1995), 270 Mont. 272, 274, 891 P.2d 1147, 1148.

The City argues that the District Court abused its discretion when it awarded Springer $1,636.32 because most of the costs identified in Springer’s “Bill of Costs” do not fall within § 25-10-201, MCA. In fact, the City argues that only $175.00 for filing fees is allowable. First, the City argues that Springer’s request for costs of 509 photocopies ($127.25) along with costs for facsimile transmittals ($17.00) and costs for copies of juror questionnaires ($2.10) is not allowable under § 25-10-201, MCA. Specifically, the City relies on Thayer, 793 P.2d at 798, to assert that the District Court’s discretion should be limited to allowing only the costs incurred in constructing exhibits admitted at trial and that because only two exhibits were used at trial, Springer’s request for costs of 509 photocopies is not appropriate. Furthermore, the City argues that costs for facsimile transmittals and copies of juror questionnaires are not necessary litigation expenses, and, therefore, should not be allowed.

Springer responds that all of the photocopy costs were reasonable and necessary expenses allowed for by § 25-10-201(9), MCA. Furthermore, Springer asserts that the District Court is in the best position to make a determination of what costs are taxable according to the course and practice of the court. Additionally, Springer suggests that we follow the lead of the federal court system wherein photocopying costs are allowable pursuant to 28 U.S.C. § 1920 (1991).

Next, the City argues that Springer’s request for costs of postage ($27.80) and UPS charges ($11.25) should not be allowed because theses costs also are not necessary litigation expenses pursuant to § 25-10-201(9), MCA. Additionally, the City argues that the cost identified as a “Service Fee” ($230.00) should not be allowed because it is not an identified allowable cost, nor is it reasonable or necessary. Furthermore, the City argues that the imposition of long distance telephone charges ($33.67) is erroneous because, in Thayer, this Court held “[telephone charges, however, may not be taxed as costs under any circumstances.” Thayer, 793 P.2d at 798.

Springer responds that this Court should not follow the attempt in Thayer to limit the District Court’s discretion in awarding costs, but, rather, we should return to giving the District Court broad discretion under § 25-10-201(9), MCA, to determine whether these costs are taxable according to the course and practice of the court. Springer, relying on Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935, further argues that only if we affirm the District Court’s award of costs will he be indemnified against the expense of asserting his right to be compensated for the City’s wrongdoing in destroying his property.

Finally, the City again relies on Thayer and argues that Springer’s claim for deposition costs ($454.25) is not allowable because the depositions were not used at trial. Moreover, the City asserts that Springer’s request for $558.00 to cover his counsel’s mileage expenses for five separate trips from Great Falls to Bozeman is not a statutorily identified allowable cost. Springer responds that while the depositions were not used at trial, they were filed with the court and used by both parties in their motions for summary judgment, and, therefore, these deposition costs are allowable. Additionally, Springer asserts that his counsel’s mileage expenses were allowable because they were reasonable and necessary litigation expenses.

We hold, as a general proposition, that a party ultimately prevailing on summary judgment is entitled to the same allowable costs as if the case had been disposed of at trial. See e.g. Fisher v. State Farm Ins. Cos. (1997), [281 Mont. 236], 934 P.2d 163,164 (explaining that costs for depositions used by the court in a dispositive summary judgment motion are allowable). Consequently, here, because Springer prevailed both on summary judgment and at trial for damages, he is entitled to recover any costs which he incurred in either proceeding, as allowed by §§ 25-10-101 and 25-10-201, MCA. Accordingly, to determine whether the District Court abused its discretion in awarding all of Springer’s claimed costs, we will consider the law as it applies to each of the disputed costs in turn.

In Thayer, we limited the broad discretion of the District Court under § 25-10-201(9), MCA, by holding that a District Court should allow only those photocopying costs which were incurred in constructing exhibits admitted at trial. Thayer, 793 P.2d at 798. Additionally, as the City correctly argues, we also held in Thayer that “[telephone charges ... may not be taxed as costs under any circumstances.” Thayer, 793 P.2d at 798. However, we note that the additional disputed costs for postage, UPS charges and a “Service Fee” are not specifically disallowed by Thayer or by statute, and, therefore, the awarding of these costs is properly left to the broad discretion of the District Court under § 25-10-201(9), MCA, to determine whether these costs are “reasonable and necessary expenses ... according to the course and practice of the court....”

Furthermore, we recently reiterated the rule that deposition costs are recoverable not only for depositions used at trial, but for depositions filed with the district court and used by the court in a dispositive summary judgment motion. Fisher, 934 P.2d at 164, 54 St.Rep. at 152 (citing Roy v. Neibauer (1981), 191 Mont. 224, 227-28, 623 P.2d 555, 557). However, in Thayer, when considering the expenses associated with the audio-visual depositions used, we limited the allowable costs for audio-visual or tape recorded depositions to only those expenses incurred in recording, transcribing and editing the depositions. Thayer, 793 P.2d at 798. We further explained that “airfares, hotel bills, rental car expenses and other incidental costs incurred in obtaining depositions” were not allowable costs. Thayer, 793 P.2d at 798. In the case at bar, it appears that the depositions were recorded stenographically. Despite the different recording method used here, the rule established in Thayer still applies. That is, only those deposition expenses incurred in recording, transcribing and editing the depositions are allowable; any incidental costs incurred are not allowable costs. See Thayer, 793 P.2d at 798.

Finally, we note that while § 25-10-201(1), MCA, specifically allows for witness mileage, the statute is silent as to whether counsel’s mileage is also allowable. Consequently, like the costs for postage, UPS charges, and “service fees,” the award of counsel’s mileage costs is left to the broad discretion of the District Court to determine whether these costs are “reasonable and necessary expenses ... according to the course and practice of the court ....” However, as we explained previously, any part of Springer’s counsel’s mileage costs incurred when obtaining depositions are considered incidental costs which are not allowed. Thayer, 793 P.2d at 798.

Based on the foregoing, we affirm the District Court’s award of $175.00 in filing fees because these costs were not disputed. However, we reverse the District Court’s award of $33.67 for Springer’s long distance telephone calls. Furthermore, we remand with instructions that the District Court determine what costs for photocopies (including the facsimile transmittals and copies for juror questionnaires) were expended on exhibits admitted at trial, and, therefore what photocopying costs are allowable. Additionally, on remand, the District Court must determine if the costs for postage, UPS charges, a “Service Fee,” and counsel’s mileage are allowable pursuant to § 25-10-201(9), MCA. Finally, on remand, the District Court must determine whether it relied on the depositions of Springer, Bill McManis, James L. Conner and Jason Becker when it granted Springer summary judgment. Moreover, the District Court must determine what portion of the deposition expenses were incurred in recording, transcribing and editing the depositions, and, therefore, what deposition costs are allowable.

3. Did the District Court abuse its discretion in failing to award Springer attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for admissions that the City denied?

On October 6,1995, Springer served the City with Interrogatories, Requests for Production and Requests for Admission, to which the City responded. On October 18, 1995, Springer served the City with Amended Requests for Admission, to which the City again responded. Springer asserts that the City denied Requests for Admission Nos. 9, 11, 12, and 22, which Springer later proved to be true through deposition testimony and which the District Court accepted as uncontroverted facts in granting Springer summary judgment. As a result, Springer asserts that he incurred attorney fees and costs. Springer explains that he filed an Affidavit of Attorney Fees in the amount of $2,187.00 pursuant to Rule 37(c), M.R.Civ.P., but did not list any costs with this Affidavit because he had previously submitted his “Bill of Costs” to the District Court pursuant to § 25-10-201, MCA. Consequently, on cross appeal, Springer contends that he is entitled to attorney fees under Rule 37(c), M.R.Civ.P. The City responds that Springer is not entitled to attorney fees because the City properly responded to all of Springer’s Requests for Admission.

Rule 37(c), M.R.Civ.P., provides:
If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit.

Springer argues that he proved the truth of the following requests for admission through deposition testimony:

REQUEST FOR ADMISSION NO. 9: Admit that document 1 is a notice of abandoned vehicle that was placed on plaintiff’s 1968 Volkswagen van on September 24, 1992.

RESPONSE: Deny.

REQUEST FOR ADMISSION NO. 11: Admit that the notice of abandoned vehicle contains a tow date of September 25, 1992.

RESPONSE: It would appear that Document #1 which was attached to Plaintiff’s amended Request for Admission contains a handwritten entry, the author of which is unknown, of “tow date of 09/25/92.”

REQUEST FOR ADMISSION NO. 12: Admit that Officer Jason Becker or any other Bozeman City Police Officer did not notify Plaintiff before having his vehicle towed.

RESPONSE: Deny.

REQUEST FOR ADMISSION NO. 22: Admit that on September 28, 1992, Plaintiff’s 1968 Volkswagen van was capable of being driven.

RESPONSE: Deny.

Upon review of the District Court record, it does not appear that the District Court addressed Springer’s request for attorney fees pursuant to Rule 37(c), M.R.Civ.R, in its findings of fact and conclusions of law entered June 26, 1996, or in any other separate order.

Nevertheless, after reviewing the deposition testimony taken by Springer and filed with the District Court, we conclude as a matter of law that Springer proved the truth of Requests for Admission Nos. 9, 12 and 22, which Bozeman denied. Specifically, McManis testified in his deposition that he placed a Notice of Abandoned Vehicle on Springer’s van on September 24,1992 (see Request for Admission No. 9). Further, McManis testified that he did not send Springer a certified letter notifying him that his van had been towed but rather only attempted to contact Springer by telephone (see Request for Admission No. 12). Finally, McManis testified that prior to having Springer’s van towed, he did not know if the van was capable of being driven or operated, whereas, Springer’s undisputed deposition testimony explains that he drove his van to the opposite side of the street before Bozeman towed and destroyed it (see Request for Admission No. 22). Furthermore, we conclude as a matter of law that none of the exceptions of Rule 37(c), M.R.Civ.R, preclude the District Court from awarding Springer reasonable attorney fees.

However, we disagree with Springer that Bozeman’s response to Request for Admission No. 11 constitutes a denial. Rather, we conclude that Bozeman’s response was an admission, and, therefore, Springer is not entitled to reasonable expenses or attorney fees under Rule 37(c), M.R.Civ.P., for proving the truth of Request for Admission No. 11.

Consequently, we hold that the District Court abused its discretion when it failed to award Springer attorney fees for proving the truth of Requests for Admission Nos. 9,12 and 22, which Bozeman denied. Accordingly, we remand this issue to the District Court for calculation of the amount of reasonable attorney fees to which Springer is entitled and entry of an appropriate order.

In conclusion, we affirm the District Court’s Order granting Springer summary judgment. However, we reverse that part of the District Court’s July 11, 1996 Judgment awarding Springer costs for long distance telephone calls. Additionally, we remand for recomputation the issue of whether the remaining disputed costs awarded to Springer in the District Court’s July 11,1996 Judgment are allowable costs under § 25-10-201, MCA. Finally, we remand for calculation of the amount of attorney fees to which Springer is entitled pursuant to Rule 37(c), M.R.Civ.P.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on issues one and two and respectfully dissent on issue three, which relates to attorney fees under Rule 37(c), M.R.Civ.P. My concerns about issue three are both procedural and substantive.

At the outset, I observe that neither the Affidavit for Attorney Fees referenced by the Court, nor any motion in support of which such an affidavit properly could be filed, is of record in this case. While Springer attaches a copy of the Affidavit to his brief on cross-appeal in this Court, that copy does not reflect a “filed” date and, indeed, the Affidavit is neither physically contained in the District Corut record nor referenced in the Case Register which accompanies that record. Even assuming that an affidavit is sufficient in and of itself to serve as a motion or official request to a district court for action, an assumption with which I would not agree since Rule 37(c), M.R.Civ.P., requires a party to “apply to the court for an order,” it is my view that a district court cannot properly be held in error in failing to award relief — here, attorney fees — which is not requested on the record.

I note in this regard that the City did file a response in the District Court to Springer’s “request” for attorney fees, and it may be that the parties, at least, operated under the joint misunderstanding that the “request” had been filed. Notwithstanding the parties’ implicit agreement to address a matter not of record, however, it is my view that we perform a disservice to district courts when we “reverse” them on matters never, in fact, presented to them for resolution. Surely it must remain counsel’s duty to ensure that matters intended to be filed are actually filed and made part of the record.

Even assuming arguendo, however, that a motion for attorney fees under Rule 37(c), M.R.Civ.P, and supporting affidavit were of record in this case, I would not address the issue here. Springer was the prevailing party in the action and it was Springer’s “motion” for attorney fees which arguably had not been addressed before the District Court entered judgment in the case. Instead of bringing the “motion” to the District Court’s attention for determination either prior to,'or soon after, the judgment was entered, Springer simply went ahead and served notice of entry of judgment, thereby beginning the running of the time during which the City could file its notice of appeal.

Springer then filed a cross-appeal, arguing that the District Court abused its discretion in failing to award him attorney fees pursuant to Rule 37(c), M.R.Civ.P This Court addresses that issue on the merits. I would not, since Springer did not provide the District Court with an opportunity to determine the matter. At the very most, I would remand this issue to the District Court for purposes of clarifying the record and addressing the “motion” on its merits. In my view, it simply is not our role to address an issue on appeal which has not been properly presented to the district court for resolution. Furthermore, to hold that a district court abused its discretion in failing to award attorney fees under circumstances such as those before us here is simply unfair to the District Court.

Finally, I disagree with the Court’s substantive resolution of the attorney fee issue regarding Requests for Admission Nos. 9 and 12.1 will address each in turn under the three-step process set forth in Rule 37(c), M.R.Civ.P., which requires determinations that 1) there was a failure to admit; 2) the requesting party later proved the truth of the matter; and 3) none of the four extenuating circumstances exists which might “excuse” the failure to admit.

Request for Admission No. 9 asked for an admission that “document 1 is a notice of abandoned vehicle that was placed on plaintiff’s 1968 [V]olkswagen van. ...” The City denied. In fact, “document 1” was not the notice which was placed on Springer’s vehicle; it was a copy of that notice. Thus, while the City’s denial was somewhat technical, it was a proper denial. Nor did Springer later prove that “document 1” was the actual notice placed on Springer’s van. McManis’ deposition testimony that he placed “a Notice of Abandoned Vehicle” on Springer’s van — on which the Court relies as “proof’ that “document 1” was the actual notice — proves nothing of the sort.

Moreover, while it is clear that the first portions of Rule 37(c), M.R.Civ.P., are not met with regard to the City’s denial of Request for Admission No. 9, it is my view that the Court also errs in concluding that none of the extenuating circumstances which might excuse any improper denial was satisfied. Specifically, the second extenuating circumstance listed in Rule 37(c) is that “the admission sought was of no substantial importance” and that circumstance certainly applies to Request for Admission No. 9. In response to Request for Admission No. 1 in the same set of discovery from Springer, the City admitted that “on or about September 24,1992, a Notice of Abandoned Vehicle was placed on Plaintiff’s 1968 Volkswagen van.” In addition, the subsequent Final Pretrial Order in the case, filed January 31, 1996, stated as an “AGREED UPON FACT” “[t]hat on or about September 24,1992, a Notice of Abandoned Vehicle was placed on the Plaintiff’s van.” The McManis deposition was not taken until May 21, 1996, months after it was agreed by all parties that a notice of abandoned vehicle was placed on Springer’s vehicle on or about September 24, 1992. Thus, even assuming that the City had improperly denied Request for Admission No. 9 and that Springer had later proved the truth of the matter via McManis’ deposition, the “admission sought was of no substantial importance” under Rule 37(c), since it had been admitted and, indeed, incorporated into the controlling Final Pretrial Order. I would conclude that Springer is not entitled to attorney fees with regard to Request for Admission No. 9.

I would reach the same result on Request for Admission No. 12. The request was to admit that no City police officer notified Springer “before having his vehicle towed.” The City denied. In fact, the September 24,1992, notice of abandoned vehicle contained a tow date of September 25,1992. In my view, that notice was notice to Springer prior to towing his vehicle and, therefore, the City properly denied Request for Admission No. 12. In this regard, the Court again refers, in my view erroneously, to McManis’ deposition. There, McManis testified that he did not send Springer a certified letter notifying him that his van “had been towed,” but merely attempted to contact Springer by telephone. That testimony goes to post-towing events and not to the pre-towing notice to which Request for Admission No. 12 relates.

In summary, I would not address this cross-appeal issue. If addressing it, I would conclude, as does the Court, that Springer is not entitled to attorney fees with regard to Request for Admission No. 11 and is entitled to attorney fees with regard to Request for Admission No. 22. I disagree with the Court that Springer is entitled to fees relating to Requests for Admission Nos. 9 and 12. As a result, I would hold that Springer is entitled to fees with regard to only one of the four Requests for Admission for which such fees are sought.

      . We note, as did the dissent, that while Bozeman’s memorandum in opposition to Springer’s request for attorney fees under Rule 37(c), M.R.Civ.R, is contained in the District Court record on appeal, Springer’s Affidavit of Attorney fees could not be located in the record (although a copy, without a file stamp, is attached to Springer’s brief on appeal). Given that Bozeman’s response to Springer’s Affidavit is included in the record and, further, because Bozeman has not raised on appeal any failure of Springer to actually file his Affidavit, we will assume for purposes of our decision here that the Affidavit was filed but was not included in the record on appeal by mistake or inadvertence.
      Counsel are reminded, however, that it is their obligation to insure that the record on appeal is complete and accurate. In this regard, it will assist counsel in fulfilling this obligation and this Court in verifying the completeness and accuracy of the record if copies of documents from the record which are attached to the briefs as appendices include, if possible, a copy of the clerk of court’s original file stamp.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    IN RE THE MARRIAGE OF JEFFREY WILFORD HUOTARI, Petitioner and Appellant, and BRENDA MARIE HUOTARI n/k/a BRENDA M. COPELAND, Respondent and Respondent.
    No. 97-174.
    Submitted on Briefs July 31, 1997.
    Decided August 26, 1997.
    54 St.Rep. 884. 943 P.2d 1295.
    284 Mont. 285.

      For Appellant: David N. Hull, Attorney at Law, Helena.
    For Respondent: Dennis G. Loveless, Attorney at Law, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

This appeal is taken from the findings of fact, conclusions of law and order entered by the First Judicial District Court, Broadwater County, on post-dissolution motions filed by Jeffrey Wilford Huotari (Jeff) pertaining to child custody and child support. We affirm in part, reverse in part and remand.

Jeff raises two issues on appeal:

1. Did the District Court abuse its discretion by failing to extend the temporary custody order?

2. Did the District Court err in addressing the merits of Jeff’s motion to modify custody and support?

BACKGROUND

Jeff and Brenda Marie Huotari, now known as Brenda M. Copeland (Brenda), married in 1988. Their marriage was dissolved on June 17, 1991. The District Court adopted and incorporated the parties’ Property and Child Custody Agreement (Agreement) in its decree of dissolution and, pursuant thereto, awarded Jeff and Brenda joint custody of Jacob, their minor son. Brenda was designated Jacob’s primary residential custodian, subject to reasonable visitation by Jeff. The Agreement also provided that the parties anticipated that Brenda might be moving from Montana in the future and, in the event such a move was contemplated, Jeff and Brenda would attempt to renegotiate a visitation schedule commensurate with the new living arrangements; absent agreement by the parties, the District Court was authorized to review and modify the child custody and visitation provision. In no event could Brenda move Jacob’s residence out of Montana without a visitation schedule being established by either agreement or court modification.

On July 17,1996, Jeff moved the District Court to modify the child custody provisions of the dissolution decree. His supporting affidavit stated that Brenda had joined the United States Army, leaving Jacob with him, and that Jacob had been integrated into his family with Brenda’s full knowledge and consent. On the basis of the requested modification of custody, Jeff also sought modification of his child support obligations and of the income tax exemption provision of the decree.

Approximately one month later, Jeff moved for an ex parte temporary custody order “pursuant to § 40-4-219 M.C.A. and § 40-4-220(2)(ii) [sic]” and order to show cause. He asserted that Brenda’s mother had taken Jacob from his custody nine weeks after Brenda left the child with him and that she refused to return the child to him. Jeff’s supporting affidavit asserted that an immediate change of custody would serve to protect the child’s physical or emotional health.

The District Court issued a temporary order and order to show cause which granted Jeff temporary custody of Jacob and scheduled a show cause hearing on the matter for September 6, 1996. On the day of the hearing, Brenda filed a motion to dismiss Jeff’s July motions relating to modification of custody and support and his ex parte motion for temporary custody. At the conclusion of the hearing, the District Court ordered that the temporary custody order would remain in effect until further order of the court.

The District Court’s findings, conclusions and order were filed on October 30,1996. In pertinent part, the court determined that it was in Jacob’s best interest that Jeff retain physical custody for the remainder of the 1996-1997 school year and that Jeff and Brenda each would have Jacob for one-half of the summer in 1997; thereafter, Brenda would resume physical custody of Jacob in accordance with the earlier Agreement and the decree. The District Court concluded that there was insufficient evidence to establish a change in circumstances that seriously endangered Jacob’s well-being and that, notwithstanding the existence of § 40-4-219(l)(f), MCA, Jeff had not satisfied the requirements for modification of custody since Brenda’s out-of-state move was contemplated by the parties’ Agreement and the dissolution decree. Jeff appeals.

STANDARD OF REVIEW

We review a district court’s findings of fact relating to child custody and visitation matters to determine whether the findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 R2d 1018, 1021 (citation omitted). We will not overturn the district court’s decision unless a clear abuse of discretion is shown. Marriage ofDreesbach, 875 P.2d at 1021 (citation omitted).

DISCUSSION

1. Did the District Court abuse its discretion by failing to extend the temporary custody order?

A party seeking an ex parte temporary custody order must satisfy statutory requirements. When seeking a temporary assignment of custody ex parte in a case in which a determination of custody previously has been made, the party must submit an affidavit showing that “the child’s present environment endangers his physical or emotional health and an immediate change of custody would serve to protect the child’s physical or emotional health.” Section 40-4-220(2)(a)(ii), MCA. If the district court finds from the affidavit that the child’s physical or emotional health is endangered and would be protected by a temporary assignment of custody, the district court must enter a temporary custody order; in such an event, the court must require all parties to appear and show cause within 20 days why “the court should not restore the child to the custodian from whom the child was removed by the temporary order.” Section 40-4-220(2)(b), MCA.

Here, Jeff submitted the required affidavit and the District Court entered the temporary custody order and scheduled the show cause hearing. Under § 40-4-220(2)(b), MCA, the burden was on Jeff to support a continuation of the temporary change in custody he had obtained ex parte. At the conclusion of the hearing, the District Court ordered that the temporary custody order would remain in effect. As a result, Jeff retained temporary custody of Jacob until the District Court entered its findings, conclusions and order on October 30,1996, and, indeed, retained custody pursuant to the October order through the end of Jacob’s 1996-1997 school year.

Jeff asserts that the District Court erred in failing to extend the temporary custody order until a hearing was held on his § 40-4-219, MCA, motion to modify custody. He cites to no legal authority which supports the proposition that a temporary custody order obtained ex parte must be continued until a hearing is held on a separate motion to modify custody and, as a result, we do not address this portion of his argument. See Rule 23(a)(4), M.R.App.P.

Jeff also contends that Brenda’s failure to comply with the 30-day notice requirement contained in §§ 40-4-217(4) and 40-4-217(5), MCA, was sufficient as a matter of law to require an extension of the temporary order. This contention is entirely without merit.

Section 40-4-217(4), MCA, requires a custodial parent to give written notice to a noncustodial parent with visitation rights of his or her intent to change a minor child’s residence to another state. The purpose of the notice requirement, which must be given at least 30 days before the intended change in residence, is “to allow the noncustodial parent to seek a modification of the parent’s visitation schedule.” Section 40-4-217(5), MCA. Without regard to whether any nexus exists between this notice requirement and show cause hearings on temporary custody orders obtained ex parte, §§ 40-4-217(4) and 40-4-217(5), MCA, are inapplicable here. Brenda had not changed Jacob’s residence to another state at the time of the proceedings at issue and, according to the record before us, she did not intend to do so within 30 days.

Nor is Jeff’s reliance on In re Marriage of Morazan (1989), 237 Mont. 294, 772 P.2d 872, well placed. In that case, we affirmed a district court’s issuance of a temporary restraining order to prevent a parent from removing children from the jurisdiction of the court pending modification of custody proceedings. Marriage of Morazan, 772 P.2d at 874. The case did not involve either the notice requirement contained in § 40-2-217(4), MCA, or a show cause hearing on a temporary custody order obtained ex parte. Moreover, Jeff did not seek a temporary restraining order in this case. Marriage of Morazan is inapplicable here.

Finally, Jeff’s contentions in this regard aside, we observe that the District Court effectively extended the temporary custody order Jeff had obtained ex parte until the summer of 1997 in an effort to avoid further disruption to Jacob. We hold that the District Court did not abuse its discretion with regard to the temporary custody situation.

2. Did the District Court err in addressing the merits of Jeff’s motion to modify custody and support?

It is clear that the District Court resolved the merits of Jeff’s motion to modify custody and support in its order of October 30,1996, concluding that the § 40-4-219, MCA, requirements for modification were not satisfied. Jeff contends that the District Court erred in addressing his motion to modify when the sole purpose of the September 6, 1996, hearing was to determine whether to continue the temporary custody order Jeff had obtained ex parte. We agree.

As set forth above, Jeff filed two motions in this case. His first motion, filed pursuant to § 40-4-219, MCA, was a motion to modify child custody and support. His second motion, for an ex parte temporary custody order and order to show cause, necessarily was filed pursuant to § 40-4-220(2)(a)(ii), MCA. The District Court granted the latter motion and issued an order setting a show cause hearing on “the temporary order” for September 6, 1996. At that point, it was clear that the show cause hearing was limited to determining whether the temporary custody order granted ex parte should remain in effect.

Nor did the focus of the hearing change at the hearing. Jeff’s counsel opened the hearing by stating that the hearing was set “on a temporary order and order to show cause.” The District Court queried “[s] o we are here on temporary custody?” and Jeff’s counsel responded “your Honor, that being done, we have a[n unrelated] procedural question” relating to Brenda’s motion to dismiss. The subject of the scope of the hearing arose again later, when the District Court recapped that Jeff had filed a “second motion” and that was “the motion for temporary custody that is being heard here today, is that correct?” Jeff’s counsel responded in the affirmative. Still later, the District Court again inquired “is this a hearing on temporary custody?” Again, Jeff’s counsel responded “[t]hat is correct.” Finally, the Minute Entry regarding the hearing indicated that “[t]his was the time set for the Order to Show Cause hearing in the above-entitled cause.”

On this clear and unambiguous record regarding the scope of the September 6, 1996, hearing, we must conclude that the sole purpose of that hearing was to address whether the temporary custody order Jeff obtained ex parte was to remain in effect. Notwithstanding, the District Court’s October 30,1996, findings, conclusions and order also denied Jeff’s § 40-4-219, MCA, motion to modify child custody and support on the merits.

Brenda attempts to support the District Court’s action by arguing that Jeff’s motion for temporary custody cited § 40-4-219, MCA, as well as § 40-4-220, MCA, thereby giving “the District Court license to make a determination on the modification of the custody provisions contained in the decree of dissolution.” It is true that Jeff’s motion for temporary custody and memorandum in support thereof reference the “endangerment” provision in both statutes. It also is true, however, that the standard to be met in seeking temporary custody ex parte where a previous custody determination has been made is whether the child’s present environment endangers his or her physical or emotional health and an immediate change of custody would protect that health. See § 40-4-220(2)(a)(ii), MCA. Thus, while Jeff’s motion for an ex parte temporary custody order and supporting affidavit were not as clear as they might have been, the record remains clear and unambiguous that the September 6,1996, hearing was held for the sole purpose of determining whether to continue the temporary custody order.

Brenda also contends that the District Court merely “entered an order which effectively encompassed the entire custody issue by including a ruling on both motions.” While this contention about what the District Court did is correct, it begs the question of whether the District Court acted properly. We conclude that it did not. In marital cases, as in other cases, the essential elements of due process are notice and an opportunity to be heard. See In re Marriage of Robbins (1985), 219 Mont. 130, 138, 711 P.2d 1347, 1352. Here, Jeff received neither notice nor an opportunity to be heard on his motion to modify child custody and support. Thus, while it may be difficult, at best, for Jeff to make the showing required for modification of custody under § 40-4-219, MCA, the point is not whether Jeff ultimately can make the requisite showing, but that he must be provided a fair opportunity to do so prior to the time a decision is rendered on his motion to modify child custody. The procedure utilized by the District Court here, however well intentioned, did not provide such an opportunity. By going beyond the matter before it, the District Court denied Jeff’s right to procedural due process in violation of Article II, Section 17 of the Montana Constitution. See Lurie v. Sheriff of Gallatin County (1997), [284 Mont. 207], 944 P.2d 205.

We hold that the District Court abused its discretion in addressing the merits of Jeff’s motion to modify custody after a hearing held for the sole purpose of determining whether the temporary custody order he had obtained ex parte should be continued.

As a result of our conclusion on the second issue in this case, a remand is necessary for farther proceedings on Jeff’s motion to modify. During the pendency of those proceedings, Jacob is to remain in Brenda’s primary physical custody in order to prevent any unnecessary disruption in the stability of his living arrangements.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

JUSTICES HUNT, REGNIER, NELSON and TRIEWEILER concur.