text:
    ZACHARY P. MEAD, Plaintiff and Appellant, v. M.S.B., INC., a Montana corporation, d/b/a SNOWBOWL, Defendant and Respondent.
    No. 93-322.
    Submitted February 1, 1994.
    Decided April 12, 1994
    51 St.Rep. 348.
    264 Mont. 465.
    872 P.2d 782.

      For Appellant: Peter W. Kirwan (argued), Kirwan & Barrett, Bozeman.
    For Respondent: Gig A. ToUefsen (argued), Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Amicus Montana Ski Areas Association: Mikel L. Moore (argued), Murphy, Robinson, Heckathorn & Phillips, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Zachary P. Mead filed his complaint in the District Court for the Fourth Judicial District in Missoula County to recover damages for injuries he sustained while skiing at the Snowbowl ski area, which is owned by the defendant, M.S.B., Inc. The District Court granted defendant’s motion for summary judgment and dismissed Mead’s claim. We reverse the judgment of the District Court.

The following issues are presented for appeal:

1. Are Snowbowl’s duties limited to those listed in § 23-2-733, MCA (1989), of the Montana Skier Responsibility Act?

2. Did the District Court err when it concluded as a matter of law that Mead’s injury resulted from “inherent risks” of skiing, as set forth in § 23-2-736, MCA (1989), of the Montana Skier Responsibility Act?

3. Other than those “inherent risks” set forth in the Montana Skier Responsibility Act, is assumption of risk, as opposed to contributory negligence, a separate defense which can be asserted by ski area operators to claims by injured skiers?

4. Did the District Court err when it found that Mead’s claim was barred by his contributory negligence?

FACTUAL BACKGROUND

On March 16, 1990, Zachary Mead was injured at the Snowbowl ski area while skiing down a trail known as the Bowl Outrun.

The bottom of several West-Ridge ski rims funnel into the Bowl Outrun trail, which then becomes the only means of return to Snow-bowl’s base area. The Bowl Outrun is a long trail, approximately 16 to 20 feet wide, cut into a steep mountainside.

While descending the Bowl Outrun Trail, Mead made turns by skiing onto the right bank of the trail and sideslipping back to the flat surface. There apparently were no markers designating the boundaries of the trail, and ski tracks indicated that others had used the banks of the trail in a similar fashion.

At some point on the trail, there is an abrupt right turn in combination with shale rock outcroppings on the trail’s bank. Prior to the turn, the bank of the trail was exposed to the north and covered by snow. Just beyond the turn, the bank of the trail was exposed to the southeast and was either covered by less snow, or was uncovered. As Mead came around the right hand curve on the trail, he suddenly encountered the shale rock outcropping, which struck his knee, knocked him out of his skis, and caused serious injuries. Mead testified that earlier in the day he had observed bare spots on the bottom side of moguls he had skied, but that he had not skied the Outrun Trail previously that day, and that there was nothing about the trail prior to the curve which alerted him to the danger which caused his injury.

On November 14,1991, Mead filed a complaint naming the owner of Snowbowl as the defendant. In his complaint, he alleged that while skiing at Snowbowl on March 16,1990, he sustained serious injuries to his right leg and knee due to defendant’s negligent design, construction, and maintenance of the ski trail on which he was injured.

The ski area denied that it was negligent, and for affirmative defenses asserted: (1) statutory assumption of risk; (2) secondary assumption of risk; (3) waiver of defendant’s negligence; and (4) contributory negligence.

On January 14, 1993, defendant moved the District Court to dismiss Mead’s claim by summary judgment. That motion was granted by the District Court on April 23, 1993. In its opinion, the District Court concluded that “plaintiff’s claim is the type of claim that the Montana Skier’s Responsibility Act was enacted to prevent.” However, the District Court failed to specify with particularity the provisions in the Act which barred Mead’s claim. The District Court did apparently conclude that, based on Mead’s general knowledge that spring conditions existed at the ski area, he should have been more alert for the hazard that caused his injury. The District Court also apparently concluded as a matter of law that the shale rock outcropping was a naturally occurring condition which resulted from weather changes, and that as a matter of law, defendant could not be found negligent for failing to remove or mark the rocks that caused Mead’s injury.

On appeal, Mead contends that whether or not the rock outcropping which caused his injury was the kind of condition designated as an “inherent risk” of skiing in the Montana Skier Responsibility Act was a question of fact, and that whether defendant and Mead were negligent, and if so, the degree of their comparative negligence, also presents issues of fact which precluded summary judgment.

Pursuant to our review of the District Court file, we note at this point that extensive discovery was apparently accomplished. Mead submitted at least three sets of discovery requests, including written interrogatories, requests for admission, and requests for production. Defendant, likewise, submitted written requests for discovery; and it appears that responses to both parties’ discovery requests were served.

In addition, numerous depositions were scheduled, and apparently taken, by both parties. These include the depositions of Art Wear, the ski patrol member who investigated Mead’s accident, and Don Bach-man, an expert on ski area construction and design who was retained by Mead.

While the parties’ briefs make frequent reference to the deposition testimony of Mead, Bachman, Wear, and Ralph Lasache, as well as to documents which were produced in response to requests for production, none of those fruits of discovery, other than the deposition of Mead, were filed in the District Court, nor have they been filed with this Court. Neither were any affidavits, either in support of or in opposition to defendant’s motion for summary judgment filed in the District Court. Therefore, the facts, as set forth in this opinion, are necessarily limited to those which can be gleaned from Mead’s deposition.

In order to avoid confusion about the meaning of this opinion, we note that the result would be the same, even if we assume that the parties’ representations in their briefs about the various witnesses’ testimony are correct. However, we wish to make it clear that it is not permissible on appeal to this Court to quote from discovery that has not been filed in the District Court and sent to the Clerk of the Supreme Court.

Based on the record before us, defendant has presented no evidence to controvert Mead’s claim in his complaint that it was negligent. However, defendant does argue that Mead’s claim is barred as a matter of law, and that the District Court’s summary judgment should be affirmed for several reasons. Defendant contends that: (1) a ski area’s only duties to its paying guests are those which are set forth in § 23-3-733, MCA (1989), and since Mead’s complaint did not allege a breach of any of those duties, he has not set forth a viable claim as a matter of law; (2) Mead’s claim is barred by § 23-2-736(4), MCA (1989), because it resulted from conditions or activities which are designated as “risks inherent in the sport of skiing;” and (3) even if Mead’s claim is not barred for either of the two previous reasons, the common law defense of assumption of risk should be available to ski area operators, and pursuant to that defense and the undisputed facts, Mead’s claim is barred as a matter of law.

STANDARD OF REVIEW

Our standard of review in appeals from summary judgment is de novo. We review a summary judgment utilizing the same criteria used by the District Court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

Brinkman and Lenon v. P & D Land Enterprises (1994), [263 Mont. 238] 867 P.2d 1112, 1114, 51 St. Rep. 36, 37.

We also noted in Brinkman that:

It is clear that a party moving for summary judgment bears the initial burden of establishing the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law....
... Put another way, the nonmoving party has no obligation to establish that genuine issues of fact exist until the moving party has shown an absence of such issues of fact; unless that initial burden is met by the moving party, the nonmoving party may rest on its pleading. Minnie, 849 P.2d at 214.

Brinkman, 867 P.2d at 1115.

It is the exceptional negligence case that may be properly disposed of by summary judgment. Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70. Negligence involves questions of fact, and where a factual controversy exists, summary judgment is never to be used as a substitute for trial. Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341. Only where reasonable minds cannot differ may the court, as a matter of law, decide the cause of an accident. Brohman, 749 P.2d at 70.

The Montana Ski Areas Association, which has appeared in this case as amicus curiae, asks that we abandon our rule for summary judgment and adopt the modern federal rule which, according to the Association, would allow the Court to evaluate the evidence and determine whether a “reasonable jury” could find in favor of the party opposing the motion. However, this rule would present a substantial erosion of the constitutional right to trial by jury and we decline to adopt it.

ISSUE 1

Are Snowbowl’s duties limited to those listed in § 23-2-733, MCA (1989), of the Montana Skier Responsibility Act?

Mead alleged that defendant was negligent with regard to the design, construction, and maintenance of the Bowl Outrun trail. He further alleged that defendant was negligent for failing to fence the bank or otherwise mark the bank to prevent skiers from skiing into the rock outcropping.

In response to Mead’s allegations of negligence, defendant asserts that its duties are limited to those set forth in § 23-2-733, MCA(1989), and that since Mead did not allege any breach of these statutory duties, defendant is entitled to judgment as a matter of law.

In support of its argument that ski area operators do not owe duties to skiers, other than those listed in the Act, defendant sets forth an extensive discussion of the history of common law liability in the ski area industry and skier responsibility acts adopted in various jurisdictions. However, our resolution of this issue is controlled by the plain language of the Montana Skier Responsibility Act and our own prior decision in Brewer v. Ski-Lift, Inc. (1988), 234 Mont. 109, 762 P.2d 226.

The Montana Skier Responsibility Act was originally enacted in 1979, and was found at §§ 23-2-731 through -737, MCA (1979). In its original form, it provided, at § 23-2-736, MCA (1979), that:

A skier assumes the risk of all legal responsibility for injury to himself or loss of property that results from participating in the sport of skiing by virtue of his participation.

In Brewer, the plaintiff was injured while skiing at the Showdown ski area when he fell on a tree stump which was just beneath the surface of the snow. He contended that the stump was not in the location where he encountered it as a natural occurrence, but had been placed there negligently by the ski area operator. However, based upon the quoted language, the district court concluded that even if the facts alleged by the plaintiff were assumed to be true, the ski area was entitled to judgment as a matter of law pursuant to the Skier Responsibility Act. In analyzing whether the provisions of the Act violated the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and Article II, Section 4, of the Montana Constitution, we observed the following critical facts about the Act:

In substance, the underscored portions provide that a skier assumes the risk and all legal responsibility for injury to himself that results from participating in skiing; and that the responsibility for collisions with an object is the responsibility of the skier and not the responsibility of the ski area operator; and finally, that notwithstanding the comparative negligence law of Montana, a skier is barred from recovery from a ski area operator for loss from any risk inherent in the sport of skiing, thereby eliminating the theory of comparative negligence. A fair reading of the underlined portions of the above statutes prohibits the skier from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.

Brewer, 762 P.2d at 230.

Based on these observations, we concluded that protecting the operators of ski areas from liability for their own negligence bore no relationship to protecting them from liability from inherent risks in the sport of skiing, and therefore, that the objectionable parts of the Act violated the equal protection clauses of both the Federal and State Constitutions. In so holding, we stated that:

Although the state has a legitimate interest in protecting the economic vitality of the ski industry, there is no rational relationship between this purpose and requiring that skiers assume all risks for injuries regardless of the cause and regardless of the presence of negligence or intentional conduct on the part of the ski area operator. As we read the above underscored portions of Sections 23-2-736 and 23-2-737, MCA, we conclude that these portions of the statutes are needlessly overbroad and clearly go far beyond the stated purposes of the statutes as set forth in Section 23-2-731, MCA. Applying the test referred to in Hooper [v. Bernalillo County Assessor (1985), 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed. 2d 487], we conclude that the underscored portions of these two statutes cannot pass even a minimum rationality test. These provisions are not related to inherent risks in the sport of skiing which are essentially impossible to eliminate by the ski area operator as stated in Section 23-2-731, MCA. We conclude that these provisions fail to pass the minimum rationality test for the following reasons: there is nothing in the legislation to suggest a reason to require that a skier assumes the risk and legal responsibility for injury to himself and for collisions and that there is no responsibility on the part of the ski area operator. Such provisions eliminate any theory of negligence on the part of the ski area operator. This contradicts Section 27-1-701, MCA, under which a person is responsible for an injury resulting from his want of ordinary care.

Brewer, 762 P.2d at 230.

In response to the Brewer decision, the Legislature amended several provisions of the Skier Responsibility Act in 1989. The language in § 23-2-731, MCA (1979), which set forth the purpose of the Act, was amended to point out that skiing is a major industry in Montana and that the State, therefore,

has a legitimate interest in maintaining the economic viability of the ski industry by discouraging claims based on damages resulting from risks inherent in the sport, defining inherent risks, and establishing the duties of skiers and ski area operators.

Section 23-2-731, MCA (1989).

Section 23-2-733, MCA (1979), was amended in 1989 to provide:

Consistent with the duty of reasonable care owed by a ski area operator to a skier, a ski area operator shall:
(1) mark all trail grooming vehicles by furnishing the vehicles with flashing or rotating lights that must be in operation whenever the vehicles are working or are in movement in the ski area;
(2) mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski trails;
(3) maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and the relative degree of difficulty of the ski trails at that area;
(4) post a notice requiring the use of ski-retention devices;
(5) designate at the start of each day, by trail board or otherwise, which trails are open or closed and amend those designations as openings and closures occur during the day;
(6) post in a conspicuous location the skier responsibility code that is published by the national ski areas association and that is current on [the effective date of this Act]; and
(7) post a copy of 23-2-736 in a conspicuous location.

Section 23-2-736, MCA (1979), was amended so that instead of assuming responsibility for all injuries resulting from merely participating in the sport of skiing, inherent risks which are assumed by the skier are identified. Section 23-2-737, MCA, which previously eliminated the application of comparative negligence to ski injuries, was repealed.

It is the amended § 23-2-733, MCA (1989), which defendant contends establishes its exclusive duties to Mead. However, we cannot construe the statute in that fashion for two reasons.

First, this Court’s role in statutory construction is simply to “ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted ....” Section 1-2-101, MCA. In neither the original enactment of § 23-2-733, MCA (1979), nor in the 1989 amendment of that statute, did the Legislature provide that a ski area operator’s only duties were those provided in that section and that there was no duty of due care owed by operators to skiers. That duty is, however, imposed by § 27-1-701, MCA. In fact, the 1989 amendment appears to reinforce that duty when it states that the statutorily enumerated duties must be “consistent with the duty of reasonable care owed by a ski area operator to a skier ....”

Second, an interpretation of a statute which gives it effect is preferred to one which renders it void. Section 1-3-232, MCA. Were we to accept the interpretation of § 23-2-733, MCA (1989), which is suggested by defendant, it would be immune from liability for its negligent or intentional acts if not itemized in that section. The Skier Responsibility Act would then suffer from the same constitutional infirmity which we addressed and have previously discussed in Brewer. We presume that the Legislature amended the Skier Responsibility Act with those constitutional considerations in mind, and will not construe the statute in a manner that would render it unconstitutional.

For these reasons, we conclude that defendant’s duties to plaintiff were not limited to those listed in § 23-2-733, MCA (1989), of the Montana Skier Responsibility Act.

ISSUE 2

Did the District Court err when it concluded as a matter of law that Mead’s injury resulted from “inherent risks” of skiing, as set forth in § 23-2-736, MCA (1989), of the Montana Skier Responsibility Act?

Section 23-2-736, MCA (1989), sets forth a skier’s duties and identifies those inherent risks in the sport of skiing from which a ski area operator is relieved from liability. That part of the statute which defendant contends entitles it to judgment as a matter of law provides as follows:

(4) A skier must accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of skiing. Risks inherent in the sport of skiing are:
(a) variations in skiing terrain, including surface and subsurface snow or ice conditions naturally occurring or resulting from weather changes, skier use, or grooming or snowmaking operations;
(b) bare spots and thin snow cover caused by limited snowfall, melting, wind erosion, skier action, grooming, or unconsolidated base;
(d) skiing in an area not designated as a ski trail....

While the District Court referred to all three of these subsections in its memorandum in support of its order granting summary judgment, it seems to have primarily relied on its conclusion that the rock outcropping was a “naturally occurring condition resulting from weather changes.” However, while subsection (a) refers to naturally occurring “snow or ice” conditions resulting from weather changes, and while subsection (b) refers to “bare spots” resulting from “limited snowfall” or “melting,” neither subsection defines the exact condition identified by the District Court as an “inherent risk.” Therefore, we will discuss each of the subsections relied on by defendant to determine whether that subsection bars Mead’s claim as a matter of law.

According to Mead’s testimony, he was not injured by a variation in skiing terrain. In fact, his skis never did come into contact with the rocky outcrop which apparently protruded from a nearly vertical surface and struck him in the knee. Furthermore, to conclude that the rocky structure which caused Mead’s injury was part of the “skiing terrain” is contrary to defendant’s assertion that at the time of his injury, Mead was no longer on designated ski terrain, but had left the trail. Therefore, we conclude that the condition to which Mead attributes his injury was not a “variation in skiing terrain.”

Whether the exposed rocks which caused Mead’s injury were “bare spots caused by limited snowfall, melting, wind erosion, or skier action” is more problematic. Mead describes skiing on the banked part of a ski trail when he unexpectedly encountered a rocky outcropping from a nearly vertical surface along the ski trail. There is no indication in the record whether the rocky outcropping would normally be covered with snow at that location, and if so, whether the amount of snow which normally covered the surface would have been sufficient to prevent the kind of injury that occurred in this case. The resolution of those issues necessarily involves questions of fact which have not been adequately developed in the record before us, and which are disputed, even if we accept the factual assertions of the parties made in their briefs. Therefore, we conclude that an inherent risk pursuant to § 23-2-736(b), MCA (1989), has not been established as a matter of law in this case. Whether such a condition was the cause of Mead’s injury presents a question of fact which must be resolved by the trier of fact.

Neither has it been established by the uncontroverted facts that Mead was skiing beyond the designated trail at the time of his injury. As mentioned, the only evidence before us is Mead’s deposition. He testified that there were tracks from other skiers in the area where he was injured, and noted that the same existed on the photos shown to him by defendant at the time of his deposition. No admission was made, nor solicited, at the time of his deposition that he skied beyond the boundaries of the trail. Even if we accept the representations that the parties made in their appellate briefs, we conclude that, at most, an issue of fact was raised regarding the applicability of this subsection to this case.

Defendant represents that Arthur Wear, the ski patrol member who investigated Mead’s injury, testified that the point of Mead’s collision was several feet from the edge of the trail. However, nowhere have we been advised that the edge of the trail was designated so that skiers knew where it began and where it ended. Merely asserting after the fact that a skier was several feet beyond the trail when the statute refers to the “designated” trail does not satisfy the statute.

Mead, on the other hand, represents that Forest Service maps show that he was on the trail at the time of his injury and that the area where he was injured was commonly skied by others. We conclude that whether or not the place where Mead’s injury occurred was designated by defendant as beyond the ski trail presents an issue of fact to be decided by the finder of fact after consideration of all the evidence.

ISSUES 3 AND 4

Other than those “inherent risks” set forth in the Montana Skier Responsibility Act, is assumption of risk, as opposed to contributory negligence, a separate defense which can be asserted by ski area operators to claims by injured skiers?

Did the District Court err when it found that Mead’s claim was barred by his contributory negligence?

Finally, defendant contends that ski area operators should be able to rely on the affirmative defense of what it describes as “secondary assumption of risk,” and that based on the facts in this case, defendant is entitled to judgment as a matter of law based on that defense. In support of its argument, defendant submits that Mead was generally aware of spring-like weather conditions and exposed surface areas in other parts of the ski area, had been warned about rocks and variations in terrain on signs and on his ticket, and therefore, actual notice of the specific condition which caused his injury should be imputed to him.

We note, however, that assumption of risk is no longer available as a separate affirmative defense in negligence claims, and that in those cases where we do allow such a defense, knowledge of the specific danger which causes the claimant’s injury is required. See Abernathy v. Eline Oil Field Services, Inc. (1982), 200 Mont. 205, 209, 650 P.2d 772, 775.

Defendant acknowledges that in Abernathy, 650 P.2d at 775-76, we held that the doctrine of implied assumption of risk is no longer applicable in Montana, and that instead, the conduct of the parties should be compared based upon evidence of negligence and contributory negligence, as established by reasonable and prudent person standards. We adopted the following rationale from the California Court in Li v. Yellow Cab Company of California (1975), 13 Cal. 3d 804, 825, 119 Cal. Rptr. 858, 873, 532 P.2d 1226, 1241:

We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of the risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.

However, defendant contends that we should carve out an exception to Abernathy for the ski industry as we did for product manufacturers in Zahrte v. Sturm Ruger and Company, Inc. (1983), 203 Mont. 90, 661 P.2d 17. In that case we held that:

In summary, assumption of risk is an available defense in a strict liability case. The defense must establish that plaintiff voluntarily and unreasonably exposed himself to a known danger. If the defense is found to exist, then plaintiff’s conduct must be compared with that of the defendant.

Zahrte, 661 P.2d at 19.

The rationale for allowing the common law defense of assumption of risk in strict liability cases is not present in claims based on negligence, and therefore, we decline to apply the same exception to negligence claims against ski area operators. Specifically, we stated in Zahrte, 661 P.2d at 18, that “we felt that a defense should be retained for strict liability actions and that assumption of risk may be the appropriate defense.” We felt that way because contributory negligence was not an available defense in strict liability actions. It is, however, an available defense in negligence claims, and therefore, we find the reasoning in Abernathy more persuasive.

Analyzing Mead’s conduct under the objective standards which apply to contributory negligence, we conclude that the District Court erred by dismissing Mead’s claim as a matter of law. First of all, we reiterate that:

Ordinarily, issues of negligence are questions of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. Liability should not be adjudicated upon a motion for summary judgment where factual issues concerning negligence and causation are presented. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492, P.2d 926, 931.

Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018-19.

As we noted in Dillard, issues of comparative negligence are especially difficult to resolve as a matter of law.

In this case, Mead has alleged that defendant negligently designed, constructed, and maintained the ski trail on which he was injured. Defendant, on the other hand, alleges that Mead was negligent by disregarding warnings on his ticket, and on its signs, and what he should have known from his observation of conditions at other areas throughout the ski area.

There is no evidence that Mead was aware of the particular condition which he alleges caused his injury, nor that he had skied the trail recently enough that he should have been aware of it.

Whether Mead should have been aware of the condition which caused his injury and exercised greater care to avoid it, and if so, the degree of his own negligence compared to the negligence of defendant, if any, are issues of fact to be resolved by the trier of fact in this case.

Therefore, we hold that the defense of assumption of risk, other than as specified in the Skier Responsibility Act, is not a separate defense in a claim by skiers for injuries which are alleged to result from the negligence of ski area operators, and that whether Mead and defendant were negligent, and if so, how their negligence compares, presents issues of fact to be resolved by the finder of fact in this case.

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

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    RHONDA JO WOOLF f/k/a RHONDA JO EVANS, Petitioner and Appellant, v. JOSEPH DOUGLAS EVANS, Respondent and Respondent.
    No. 93-485.
    Submitted on Briefs January 7, 1994.
    Decided April 12, 1994.
    51 St.Rep. 355.
    264 Mont. 480.
    872 P.2d 777.

      For Appellant: Richard A. Simonton, Simonton, Howe & Schneider, Glendive.
    For Respondent: Laura Christoffersen, Christoffersen & Knierim, Wolf Point.
   JUSTICE GRAY

delivered the Opinion of the Court.

Rhonda Jo Woolf (Rhonda) appeals from an order of the Fifteenth Judicial District Court, Sheridan County, holding her in contempt. The court believed that Rhonda fabricated an incident of child sexual abuse to deprive her former husband, Joseph Douglas Evans (Joseph), of his telephonic visitation rights set forth in their dissolution decree. Rhonda asserts error in the court’s contempt and evidentiary rulings. We affirm.

Rhonda and Joseph’s marriage was dissolved in December of 1991. The dissolution decree granted Rhonda sole custody of their minor daughter, Caitlin. Joseph was granted reasonable visitation, including a ten-day visitation period every two months and the right to telephone Caitlin twice a week.

On January 19,1993, Joseph filed a motion with the District Court requesting that his entitlement to a ten-day visitation period every two months be changed to a twenty-day visitation period every four months. Joseph sought the modification to address logistical difficulties, arising from Rhonda and Caitlin’s move to Idaho, in exercising his visitation rights. Rhonda subsequently filed a motion for modification in an Idaho court which was later dismissed for lack of jurisdiction. Following a hearing held March 4, at which Rhonda did not appear, the District Court modified the dissolution decree to provide Joseph with a fifteen-day visitation period every three months.

The events leading to the court’s contempt ruling occurred while the parties were attempting to modify the dissolution decree. Caitlin, who was then three years old, visited her father from January 19 to February 2, 1993. For more than three weeks following that visit, Joseph continued to speak with Caitlin over the telephone; their last telephone conversation occurred on February 27. Joseph’s attempts to call Caitlin on March 3, 4 and 6 were unsuccessful. On March 7, Rhonda’s husband answered Joseph’s telephone call, informed Joseph that unspecified charges were being brought, and advised Joseph not to call again. Rhonda intervened in, and refused, Joseph’s subsequent attempts to speak with Caitlin.

On April 7, Joseph petitioned the District Court to issue an order directing Rhonda to show cause why she should not be held in contempt for violating the visitation rights specified in the dissolution decree. He also requested an award of attorney’s fees incurred in enforcing his visitation rights. The District Court granted Joseph’s petition and a show cause hearing was held on May 20. The District Court subsequently issued its findings of fact, conclusions of law, and order. The court held Rhonda in contempt, ordered that she comply with the dissolution decree, and awarded attorney’s fees to Joseph.

Did the District Court err by holding Rhonda in contempt?

Contempt of court is a discretionary tool used to enforce compliance with a court’s decisions. The power to inflict punishment by contempt is necessary to preserve the dignity and authority of the court. Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028.

As a general rule, contempt orders are final and not reviewable by this Court except by writ of certiorari. Section 3-1-523, MCA. We have created an exception in family law cases, however, and review contempt orders on appeal. In re Pedersen (1993), [261 Mont. 284], 862 P.2d 411, 414, 50 St.Rep. 1338, 1340. Our review is limited to examining the record to determine whether the district court acted within its jurisdiction and whether evidence supports the finding of the court with respect to the contempt. Pedersen, 862 P.2d at 414. Rhonda does not raise a jurisdictional issue.

Here, the contempt ruling was based on the District Court’s finding that the testimony of Rhonda and Joseph was consistent in important part and its belief that Rhonda had fabricated an incident of child sexual abuse in order to deprive Joseph of the visitation rights to which he was entitled. We review the record to determine whether evidence supports the contempt ruling.

At the hearing, Rhonda testified that she became aware of the alleged sexual abuse during a conversation with Caitlin a few days after the February 27 telephone call. In that conversation, Caitlin purportedly revealed that Joseph had touched her pubic area causing “redness” and “bleeding.” Joseph testified that Caitlin’s comments to Rhonda probably referred to his application of ointment to a rash Caitlin had dining the January visit. Rhonda’s own testimony indicated that the rash existed immediately prior to the visit. Thus, the testimony of both Joseph and Rhonda provided the same explanation for Caitlin’s comments regarding touching, redness and bleeding in the pubic area and supported the court’s finding of consistent testimony.

To determine whether evidence supports the District Court’s belief that Rhonda had fabricated the sexual abuse allegation, we examine the conflicting evidence advanced by Rhonda and Joseph. To justify her belief that Caitlin had been abused by Joseph, Rhonda testified as to the conversation in which Caitlin purportedly revealed the sexual abuse. The record is unclear, however, as to the date the conversation occurred. Although Rhonda testified that the conversation followed Joseph’s unsuccessful telephone calls of March 3 and 4, she also testified that her conversation with Caitlin took place a few days after the February 27 telephone conversation and that she knew of the alleged sexual abuse prior to March 4.

In addition to the purported conversation with Caitlin, Rhonda testified that she believed Caitlin had been sexually abused by Joseph because of a change in Caitlin’s behavior. Rhonda stated that Caitlin would become upset and begin to cry during her telephone conversations with Joseph following the January visit. She also testified that Caitlin began to frequently wet herself and have nightmares following the February 27 telephone conversation with Joseph. She presented no other evidence to support her account of Caitlin’s behavioral changes.

Rhonda also testified that, on unspecified dates, she took Caitlin to Dr. Hal W. Davis, a physician at a children’s medical center, and to an unnamed social worker at the Idaho Department of Health and Welfare. She attempted to justify her termination of the telephonic visitation by repeating verbal recommendations by Dr. Davis and the social worker that all contact between Caitlin and Joseph be terminated. Rhonda did not testify as to when these purported statements were made. Upon objection, the District Court ruled that the statements of Dr. Davis and the Idaho social worker were inadmissible hearsay.

Finally, Rhonda attempted, through the testimony of Pamela Hodges (Hodges), a community social worker for the State of Montana, to introduce a letter from Dr. Davis, dated April 30, 1993. Although the District Court refused to admit the letter itself on hearsay grounds, the content of the letter was read into the record by Hodges. It indicated that Dr. Davis had examined Caitlin on May 5, which post-dated the date of the letter, and that he recommended the termination of all contact between Joseph and Caitlin at the time of the exam. The content also indicated Dr. Davis’belief that Caitlin had been sexually abused by her father, although it does not set forth any medical findings of sexual abuse or the basis for his determination that Joseph was the perpetrator. No motion was made to strike that portion of Hodges’ testimony and, therefore, the content of the letter remained of record.

The evidence advanced by Joseph as to Caitlin’s reaction to him contradicts Rhonda’s position. He testified that he spoke with Caitlin over the telephone five times between February 2 and 27. According to Joseph, Caitlin neither sounded upset nor cried during these telephone conversations. Indeed, Joseph characterized the February telephone conversations as no different than the conversations with Caitlin which preceded the January visit.

Edith Wilson, Joseph’s neighbor who babysat Caitlin during the January visit, testified to Joseph’s warm rapport with Caitlin and Caitlin’s lack of fear toward him dining that time. She also indicated that Caitlin felt free to talk about Joseph, recounting a specific conversation in which she felt Caitlin would have expressed some indication of the sexual abuse if it had occurred.

The resolution of the conflicting evidence presented by Rhonda and Joseph necessarily entails an assessment of their credibility. It is clear that the District Court considered the parties’ credibility in weighing the evidence and believed that Rhonda had fabricated an incident of child sexual abuse in order to deprive Joseph of his visitation rights. The credibility of the witnesses and the weight to be given their testimony in a contempt proceeding are matters for the district court’s determination and are not reviewable by this Court. Marriage of Milanovich (1982), 201 Mont. 332, 335, 655 P.2d 963, 964. We conclude that sufficient evidence supports the District Court’s belief that Rhonda fabricated the sexual abuse allegation.

The District Court’s finding as to Rhonda’s fabrication of the child abuse allegation undermines her reliance on Marriage of Jacobsen (1987), 228 Mont. 458, 743 P.2d 1025, for error in the court’s contempt ruling. There, we determined that the district court properly denied the father’s motion for contempt based on its finding that the mother had refused visitation out of a concern for the health of the minor child. Jacobsen, 743 P.2d at 1028. The District Court’s finding of fabrication in the case before us is the opposite of the operative finding in Jacobsen. Nothing in that case suggests that this Court properly may substitute its judgment for that of a district court in making a finding based to such a large extent on credibility and weighing of evidence.

The disobedience of a lawful court order constitutes contempt of the authority of the court. Section 3-l-501(l)(e), MCA. Thus, the District Court’s belief that Rhonda fabricated the incident of sexual abuse to deprive Joseph of visitation rights pursuant to the dissolution decree, a lawful court order, is a sufficient basis for its contempt ruling. We hold that the District Court did not err in holding Rhonda in contempt.

Did the District Court abuse its discretion in refusing to admit out-of-court statements made by Dr. Davis and a social worker from the Idaho Department of Health and Welfare?

As set forth above, Rhonda attempted to testify as to verbal statements made by Dr. Davis and the Idaho social worker and to introduce a letter from Dr. Davis recommending the termination of all contact between Joseph and Caitlin. The District Court ruled that the evidence was inadmissible hearsay. Evidentiary rulings are within the sound discretion of the district court and are reviewed only for manifest abuse of that discretion. Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712.

Hearsay is a statement, not made by the declarant while testifying at the trial, which is offered in evidence to prove the matter asserted. Rule 801(c), M.R.Evid. Rhonda agrees that the statements at issue here meet the first portion of the hearsay definition as statements by declarants not testifying. She contends, however, that the evidence was offered to prove its effect on her state of mind in refusing further telephonic contact between Joseph and Caitlin, rather than for the truth of the matters stated. On that basis, she asserts that the offered statements are not hearsay and are admissible under Moats Trucking Co. v. Gallatin Dairies (1988), 231 Mont. 474, 753 P.2d 883.

In Moats Trucking, we determined that a witness’ testimony regarding a conversation between two other individuals was not hearsay under Rule 801(c), M.R.Evid., because it was offered to show the resulting effect of the out-of-court statements on the witness’ state of mind and why a party acted as it did. Moats Trucking, 753 P.2d at 886. We relied on Brown v. Homestake Exploration Corp. (1934), 98 Mont. 305, 39 P.2d 168, where we addressed a similar situation involving testimony of an out-of-court conversation admitted to show that the statements were made and relied on by the testifying witness. Brown, 39 P.2d at 179. We quoted the following language from Brown:

Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned.

Moats Trucking, 753 P.2d at 886 (emphasis added). Thus, if the witness’ state of mind resulted from the out-of-court statement, the statement is not hearsay and is admissible under Moats Trucking.

Here, Rhonda failed to establish that her state of mind in refusing telephonic contact resulted from the statements she offered into evidence. The first clear violation of the telephonic visitation occurred on March 7, 1993. Rhonda’s offered evidence did not establish that the statements were made prior to this time. Rhonda’s own testimony did not establish the dates of the verbal recommendations by Dr. Davis and the Idaho social worker. The offered letter from Dr. Davis, dated April 30, 1993, clearly followed the termination of the telephonic visitations. Nor does the letter provide evidence that Dr. Davis’ verbal recommendation preceded the termination; it indicates that the recommendation was made during an examination of Caitlin on May 5, a date which post-dates the writing of the letter. Rhonda attempts to rely on another letter from Dr. Davis to establish the date of his verbal recommendation. That letter was never offered into evidence, however, and is not part of the record before us.

Absent evidence establishing that the statements were made prior to Rhonda’s termination of Joseph’s telephonic visitation rights, resulted in her state of mind and were relied on by her in terminating the telephone visits, the statements are not admissible as nonhearsay under Moats Trucking. We conclude that the District Court did not abuse its discretion in refusing to admit the out-of-court statements made by Dr. Davis and the Idaho social worker.

Did the District Court err in entering a conclusion of law regarding the absence of “serious endangerment” under § 40-4-217, MCA?

Rhonda contends that the District Court erred in entering a conclusion of law regarding the absence of “serious endangerment” under § 40-4-217, MCA, because the sole purpose of the hearing was whether she should be held in contempt of court. We agree that the conclusion exceeded the scope of the show cause hearing.

To constitute reversible error, however, the court’s action must affect substantial rights of the complaining party. Davis v. Church of Jesus Christ of LDS (1990), 244 Mont. 61, 71, 796 P.2d 181, 186. Here, the District Court’s erroneous entry of a conclusion under § 40-4-217, MCA, did not affect Rhonda’s substantial rights in light of our affirmance of the court’s sufficiently supported contempt ruling.

Affirmed.

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


author: JUSTICE HUNT

text:
    LINDEY’S, INC., a Minnesota Corporation, Plaintiff and Appellant, v. PAT M. GOODOVER, GALE A. and VERNA WELCH, all persons unknown, claiming or who might claim any right, title, estate or interest in, or lien or encumbrance upon the real property described in the complaint adverse to plaintiff’s ownership or any cloud upon plaintiff’s title thereto whether such claim or possible claim be present or contingent, Defendants and Respondents.
    No. 93-598.
    Submitted on Briefs February 10, 1994.
    Rehearing Denied May 6, 1994.
    Decided April 12, 1994.
    51 St.Rep. 359.
    264 Mont. 489.
    872 P.2d 767.

      For Plaintiff and Appellant: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Defendants and Respondents: John K. Tabaracci, Sullivan & Tabaracci, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff/appellant, Lindey’s, Inc., appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment to defendants/respondents, Pat M. Goodover, and Gale A. and Verna Welch, and dismissing appellant’s amended complaint which sought to quiet title to a narrow triangular parcel of land that appellant contends exists between two lots on Seeley Lake owned by respondents.

We affirm on issue one and remand_jon the issue of Rule 11 sanctions for notice and hearing on attorney fees and for consideration of attorney fees for this appeal.

Appellant raises the following issues:

1. Did the District Court err when it granted respondents’ motion for summary judgment?

2. Did the District Court err in assessing Rule 11 sanctions?

This case is the fifth appeal stemming from a boundary dispute between appellant and respondent Goodover, both of Seeley Lake. In the present case, appellant brings an action against all unknown persons who might claim right to a newly disputed parcel at Seeley Lake Shore Sites, namely, a portion of Lot 4, owned by Gale A. and Verna Welch. In Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 757 P.2d 1290 (Goodover I), we affirmed the District Court’s determination in Cause No. 60203 of the boundary between Goodover’s and appellant’s lots. Since that decision, the parties presented this Court with three related appeals in Goodover v. Lindey’s, Inc. (1990), 246 Mont. 80, 802 P.2d 1258 (Goodover II), writ denied (1992), 254 Mont. 539, 840 P.2d 587, Goodover v. Lindey’s, Inc. (1992), 255 Mont. 430, 843 P.2d 765 (Goodover III), and Goodover v. Lindey’s, Inc. (1993), 257 Mont. 38, 847 P.2d 699 (Goodover IV).

A review of the facts of the prior appeals are detailed in Goodover I, 757 P.2d at 1291-93, Goodover II, 802 P.2d at 1259, and Goodover III, 843 P.2d at 767-68. For purposes of this decision, we will review only those facts relevant to this appeal.

The parties own single lots at Seeley Lake Shore Sites in Missoula County. All the lots are aligned on the shore of Seeley Lake. The boundaries between the parties’ lots run north/south. Appellant owns Lot 1. Goodover owns adjoining Lot 2. The Welches own Lot 4, adjoining Goodover’s lot. Lot 1 lies north of Lot 2. Lot 2 is north of Lot 4.

On October 5,1992, appellant filed an equitable action against all unknown persons who might claim an interest adverse to its claim in an alleged narrow triangular parcel of land in Lot 4 on the boundary with Lot 2. Both Goodover and the Welches intervened in the case. Subsequently, appellant amended its complaint, adding an independent action to set aside the decision in Cause No. 60203 on the grounds of alleged newly discovered evidence. Appellant claimed that in 1990 it re-surveyed eight of the lots at Seeley Lake Shore Sites and found eight original monuments in their original locations. The surveyor located an original marker, determined to be the boundary between Lots 2 and 4, that was 18 feet from the second generation marker used by appellant in Cause No. 60203. The surveyor did not find a monument indicating the original corner marker between Lots 1 and 2, the disputed boundary in Cause No. 60203.

As a result of its 1990 survey, appellant claimed that a narrow triangular parcel of “no man’s land,” in what is Lot 4 belonging to the Welches, had not been accounted for judicially in Cause No. 60203. Specifically, appellant claimed that discovery of the original monuments established that this parcel was “unclaimed by any legal entity or person with a legal claim,” and “was abandoned by the former owner thereof in the course of litigation.” Further, appellant claimed “that it was the first to discover [the land], the first to lay claim to it, that it has improved it and made beneficial use of it by having it surveyed and that it intends to pay taxes on the same.” This equity argument was premised on the theory that this parcel of land is of equal dimension to the parcel of land appellant contends was taken from it in Cause No. 60203.

Appellant asked the District Court to reconsider Cause No. 60203, in light of its claim under Rule 60(b), M.R.Civ.R, of “newly discovered evidence,” namely, the newly discovered original corner monument common to Lots 2 and 4.

The District Court found that as a result of the decision in Cause No. 60203, which this Court affirmed in Goodover I, the boundary between Lots 2 and 4 was res judicata. The court concluded that appellant was seeking, in essence, to relitigate the boundary of Lots 1 and 2.

The court also found that appellant could not invoke Rule 60(b), M.R.Civ.R, to bring an independent cause of action to set aside the judgment entered in Cause No. 60203 under a theory of newly discovered evidence. The court concluded that appellant’s so-called newly discovered evidence could have been discovered before the initial trial.

In addition, the District Court found that appellant could not claim the disputed parcel under the theory that it was the first party to discover it, the first to lay claim to it, that it had improved it and made beneficial use of it by having it surveyed and that it intended to pay taxes on it. The court concluded that such a claim could only spring from adverse possession, pursuant to § 70-19-411, MCA, which appellant failed to establish.

On June 27, 1993, the District Court dismissed appellant’s complaint and granted respondents’ motion for summary judgment. The court also awarded respondents their costs and attorney fees, pursuant to Rule 11, M.R.Civ.R, as they had requested in their reply brief in support of the motion for summary judgment.

On October 12, 1993, appellant filed this appeal.

ISSUE 1

Did the District Court err when it granted respondents’ motion for summary judgment?

Appellant argues that the District Court should have set aside Cause No. 60203, and denied respondents’ motion for summary judgment. Appellant claims that it had a meritorious independent cause of action under Rule 60(b), M.R.Civ.P. Appellant asserts that after it had filed its independent equitable action on the grounds of newly discovered evidence, pursuant to Rule 60(b), M.R.Civ.P., the District Court granted its motion to amend the complaint, even after respondents opposed the motion partially on the grounds that there was no basis in fact or law for relitigation of these issues. Appellant contends that the court’s decision to grant its motion to amend implied that its independent cause of action had merit.

In addition, appellant claims title to the narrow triangular parcel of land on the Welches’ Lot 4 on the theory that it was the first to discover, lay claim to, and improve the parcel. Appellant contends that its 1990 survey created a discrepancy between the original boundary of Lots 2 and 4, and the same boundary as referenced in Cause No. 60203. Appellant argues that this discrepancy impliedly created a narrow triangular parcel of land which was “omitted” in Cause No. 60203, and which was “abandoned by the former owner thereof in the course of litigation.”

Appellant asks this Court to set aside Goodover I, because the newly discovered evidence clearly indicates the incorrectness of Goodover I and Goodover II.

A trial court’s award of summary judgment requires the absence of any genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The court found that, in essence, appellant’s new claim to part of the Welches’ Lot 4 was an attempt to relitigate the boundary between Lots 1 and 2, which had been determined judicially in Cause No. 60203, and affirmed in Goodover I. The court reasoned that for any such parcel of land to exist, that judicial determination would have to be ignored. As a result, the court found that appellant’s Rule 60(b) claim was barred by res judicata.

We agree with the District Court that the matter is res judicata and that appellant’s claim is without merit. Appellant’s claim that its 1990 survey of Seeley Lake Shore Sites created a narrow parcel of unclaimed land in Lot 4 is a distortion. The boundaries between the Seeley Lake Shore Sites lots are interdependent. Appellant’s determination of the boundary between Lots 2 and 4 as a result of its 1990 survey, and its subsequent claim to the so-called “no man’s land” in Lot 4, could arise only by way of reasserting that the boundary between Lots 1 and 2 as found by the District Court in Cause No. 60203 was inaccurate — a matter already adjudged and affirmed by this Court. We agree with the District Court that for any such parcel of Lot 4 to exist, that judicial determination must be ignored. Our holdings in Goodover II and Goodover III are again on point:

We stated in Goodover II:

Linde/s raises a myriad of issues in an attempt to relitigate the boundary-line question. We refuse to examine these arguments, however, because the boundary-line issue was reviewed and finally decided during the first appeal to this Court. The District Court’s determination of the boundary line is thus res judicata and cannot be reconsidered on this appeal.

246 Mont. at 82, 802 P.2d at 1260.

Goodover III, 843 P.2d at 773.

Further, appellant’s independent action, pursuant to Rule 60(b), M.R.Civ.P., on the grounds of newly discovered evidence has no merit and thus raised no genuine issues of fact or law. A party may seek relief from a final judgment for:

newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).

Rule 60(b)(2), M.R.Civ.P. The court reasoned that with due diligence appellant could have discovered the original boundaries before the initial trial. The court relied on an affidavit of appellant’s 1990 surveyor who ascribed negligence on the part of the earlier surveyors, and not impossibility, as the reason that the evidence had not been discovered before the initial trial. Thus, the court found that appellant could not rely on the exception to a final judgment in Rule 60(b), M.R.Civ.R, and raised no genuine issues of fact or law on the grounds of newly discovered evidence. We conclude that the District Court had substantial credible evidence with which to conclude that appellant could not rely on Rule 60(b), M.R.Civ.R, and raised no genuine issues of fact or law.

We do not agree with appellant that when the District Court granted its motion to amend the complaint, it impliedly ruled that its independent action had merit. The ruling was not substantive, but rather, procedural in nature and was granted as a matter of course. Rule 15(a), M.R.Civ.R

In addition to the foregoing, the court granted respondents’ motion for summary judgment because appellant failed to establish adverse possession of the disputed parcel of land. The court reasoned that appellant’s “I saw it first” theory could only spring from adverse possession, pursuant to § 70-19-411, MCA, which appellant would not assert and did not establish. Montana law requires occupancy and payment of taxes to prove adverse possession:

In no case shall adverse possessions be considered established under this code unless it shall be shown that the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors, and grantors have during such period paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon said land.

Section 70-19-411, MCA. The court found that appellant was a stranger to the record title of Lot 4, had never been seized of the property, and had not paid taxes on the same.

We agree that appellant could not claim the Welches’ land on the grounds that it was abandoned judicially and that appellant discovered, laid claim to, and improved the disputed parcel. At best, appellant’s claim and alleged improvements to the Welches’ property amounted to trespass. Because appellant failed to establish adverse possession, the court rightly found no genuine issue of fact or law based on appellant’s “I saw it first” theory.

Finally, appellant’s equitable claim to the disputed parcel because it approximates the land that was taken from it in Cause No. 60203 is likewise without merit. Such a claim demonstrates appellant’s continued refusal to accept the results of Goodover I and its progeny, and in essence, to relitigate the boundary issue.

Where appellant could have discovered the original boundaries before the initial trial, its Rule 60(b) claim to the disputed parcel of land was barred by res judicata. We hold that appellant raised no genuine issues of fact or law, and that the District Court properly granted respondents’ motion for summary judgment.

ISSUE 2

Did the District Court err in assessing Rule 11 sanctions?

Lindey’s argues that the District Court violated its due process rights when the court imposed Rule 11 sanctions in this manner. Appellant alleges that before the District Court imposed Rule 11 sanctions, it should have issued an order to show cause why appellant should not receive the sanctions. Appellant asserts that it needed time to prepare its case against the sanctions. Further, appellant argues that the District Court did not disclose upon which document or pleading it based its ruling for sanctions.

The record shows that in their motion for summary judgment, respondents raised the issue of whether appellant’s independent action had any factual or legal basis for its quiet title action against the disputed parcel. In addition, in their reply brief in support of the motion for summary judgment, respondents requested their costs and attorney fees, pursuant to Rule 11, M.R.Civ.R

In pertinent part, Rule 11, M.R.Civ.R, reads as follows:

The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Respondents argue that Rule 11, M.R.Civ.P., contains no requirement that a trial court issue a separate and specific order to show cause, setting forth the specific questionable conduct, or affording an opportunity to be heard. In addition, respondents assert that the Montana Rules of Civil Procedure provided appellant with adequate notice of the claimed violation and ample opportunity to consider the issue without any violation of appellant’s due process rights. Respondents argue that appellant had full notice that the District Court was required to impose sanctions should it determine that the facts constituted a violation of the rule.

This issue presents a case of first impression. We agree with appellant that it is entitled to notice and a hearing, and specifically, to know the basis upon which the District Court imposed sanctions.

Respondents rely on the language of Rule 11, M.R.Civ.P., and their pleadings wherein they raised the issue of whether appellant’s independent action had any factual or legal basis, and wherein they requested their costs and attorney fees, pursuant to Rule 11.

Although Montana’s Rule 11 does not state that a trial court must give notice to show cause and hold a hearing before imposing Rule 11 sanctions, we hold that a trial court should do so in order to provide the party with due process. The party should be afforded sufficient time in which to prepare its case against imposition of sanctions. In addition, a trial court should specify in its judgment or order upon which pleading(s), motion(s), or other paper(s) it bases imposition of Rule 11 sanctions.

We affirm on issue one and remand on the issue of Rule 11 sanctions for notice and hearing on attorney fees and for consideration of attorney fees for this appeal.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE WEBER JUSTICE HUNT

text:
    TIMOTHY L. GROVE and BECKY BARRY, Plaintiffs and Appellants, v. MONTANA ARMY NATIONAL GUARD, RONALD A. OESTERLE, LEROY H. HENDERSON and SCOTT J. SMITH, Defendants and Respondents.
    No. 92-436.
    Submitted on Briefs February 3, 1994.
    Decided April 18, 1994.
    51 St.Rep. 366.
    264 Mont. 498.
    872 P.2d 791.

      For Appellants: Elizabeth A. Best, Best Law Offices, Great Falls.
    For Respondents: Captain Thomas S. Muri, Staff Judge Advocate, Department of Military Affairs, Montana National Guard, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a dismissal of this action by the First Judicial District Court, Lewis and Clark County, due to the courts determination that it did not have jurisdiction. The court determined that the plaintiffs were on federal active duty for the Montana Army National Guard (the Guard) and not subject to the courts jurisdiction. We reverse and remand.

We address the following issue as being dispositive of the case: Did the court err by dismissing the action due to lack of jurisdiction based upon the determination that plaintiffs were on federal active duty with the Guard?

Plaintiff Becky Barry (Barry) was hired by the Guard as a billeting clerk at the Fort Harrison training site in February of 1988, and subsequently moved into the position of administrative clerk on October 1, 1988. Ronald Oesterle (Oesterle) was the training site manager. Barry was supervised by defendants LeRoy Henderson, Scott Smith, and Oesterle.

Barry alleges that she was sexually harassed by defendants over an extended period of time. In the fall of 1989, Barry filed sexual harassment claims against Oesterle, Henderson and Smith with the Guard and also with the Equal Employment Opportunity Office (EEOC). Oesterle terminated Barry shortly after Barry filed her claims. Oesterle also terminated ten other persons, including Grove, at approximately or about the same time claiming a lack of funding. Several months later, eight of the eleven were rehired. Neither Barry nor Grove were hired back despite their seniority to the other employees.

Timothy L. Grove (Grove), husband of Barry, filed a written statement supporting the sexual harassment claim. After Grove was not rehired by the Guard, he filed his own claim against the Guard. Barry and Grove alleged that they were not rehired in retaliation for Barrys claim. The Guard sent an investigator from the State Adjutant Generals office to research the claims. The investigator found evidence of wrongful discharge in both Barrys and Groves termination and failure to be rehired.

The Guard adopted the finding of its investigator and determined that Barry and Grove had been discriminated against and were due back pay. Barry filed a claim with the Human Rights Commission (HRC) in June of 1990. Initially, the HRC answered that it did not have jurisdiction because it considered the Guard to be a federal agency. Barry sought a reconsideration of this decision and the HRC subsequently issued a “Right to Sue Letter.”

The Guard then changed its legal position stating that it could not issue back pay and that the Title VII action was not appropriate. The Guard determined that the only way Barry and Grove could receive back pay was to file an action for “Correction of Military Records.” Subsequent to this decision, on March 25,1992, Barry and Grove filed a Complaint and Demand for Jury Trial in the Montana First Judicial District Court, Lewis & Clark County. Defendants made a motion to dismiss for failure to exhaust administrative remedies.

On August 14,1992, the court issued its Memorandum and Order dismissing plaintiffs complaint against all defendants because Barry and Grove were on federal active duty at the time of the discrimination and they could not pursue their claims in state court. It is from this order that plaintiffs appeal.

Did the court err by dismissing the action due to lack of jurisdiction based upon the determination that plaintiffs were on federal active duty with the Guard?

The District Court dismissed the action based upon its determination that it had no jurisdiction because the Guard is a federal agency. According to the court, plaintiffs must pursue the option provided them through the Guards administrative agency.

On appeal, plaintiffs argue that the Guard is a state entity and has acted as such throughout the course of this litigation. While plaintiffs admit to the dual nature of the Guard, they argue that its dual role does not make the Guard a federal entity. Plaintiffs contend that while members of the Guard unit serve in the national armed forces and follow federal rules and regulations, they are also the state national guard and are subject to state rules and regulations. According to plaintiffs, at the times relating to the claims of harassment, they were employed in their state capacity.

The Guard argues that it has a dual character but that it follows federal laws and regulations and not those of the state. The Guard contends that federal law prohibits it from lawsuits such as this in state courts. According to the Guard, plaintiffs only redress is to have their records corrected.

In reviewing a motion to dismiss, this Court will review the complaint in the light most favorable to plaintiffs and we will affirm the courts dismissal only if we determine that plaintiff is not entitled to relief under any set of facts which could be proven in support of the claim. King v. State (1993), 259 Mont. 393, 856 P.2d 954. The laws that are applicable to the alleged charges are those covered by both state and federal discrimination law. The Montana Human Rights Act and the Montana Constitution prohibit discrimination because of gender. Section 49-2-303, MCA; Art. II, Sec. 4,1972 Mont.Const. Title VII of 1964 Civil Rights Act and the 1972 amendments to that Act prohibit the same type of discrimination to all employees including those of the federal government. 42 U.S.C. 2000e.

The record shows that members of the Guard are informed that both sets of laws apply to them. No issue regarding Title VII has been raised in the appeal to this Court. We limit our consideration to the District Courts decision that it did not have jurisdiction to apply state laws to the Guard and the plaintiffs.

This Court has determined that members of the Guard serve a dual responsibility, to the State of Montana and also the United States of America:

In times of national emergency as declared by Congress, the militia may be called to active federal duty by the President pursuant to 10 U.S.C. § 3500. At such times the militia is subject to federal authority, and operates under rules virtually identical to the United States Army.
During times of state emergency, the militia is subject to call for service by the Governor. Art. VI, § 13, 1972 Mont. Const. Then the militia operates under state authority, but only to the extent that the state rules conform to applicable federal law. Section 10-1-105, MCA.
In times of peace, the militia operates somewhere between the two.

Evans v. Montana National Guard (1986), 223 Mont. 482, 483, 726 P.2d 1160, 1161.

The idea of a dual status has been established by the Supreme Court of the United States. In Perpich v. Department of Defense (1990), 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312, the Supreme Court was faced with a question concerning whether Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peace time without either the consent of a state governor or the declaration of a national emergency. The Court stated:

Since 1933 all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity they became a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retain their status as members of a separate state Guard unit.

Perpich, 496 U.S. at 345, 110 S.Ct. at 2425.

Therefore, while the Guard units consist of members enlisted in the United States Army, they are also a Montana military unit consisting of Montana citizens:

Our citizens may not be stripped of basic rights simply because they have doffed their civilian clothes.

Then Chief Justice Warren, The Bill of Rights and the Militia, 37 N.Y.U.L.Rev. 181, 188 (1962), as cited in E. Hawkens, The Justiciability of Claims Brought by National Guardsmen Under the Civil Rights Statutes for Injuries Suffered in the Course of Military Service, 125 Mil.L.Rev. 99, 101 (1989). Our own state constitution makes clear which of the governmental entities controls:

Section 13. Militia. (1) The governor is commander-in-chief of the militia forces of the state, except when they are in the actual service of the United States ...

Art. VI, Sec. 13, 1972 Mont.Const.

While the District Court determined that Grove and Barry were on federal active duty and therefore, “in the actual service of the United States,” the court cites no evidence from which it could have determined this fact. The record is devoid of any proof that the plaintiffs were on “federal” active duty as opposed to “state” duty.

What the file does contain is an affidavit by Grove stating unequivocally that at all times pertinent he was under orders from the Adjutant General of the State of Montana. In response, the Guard finds fault with Grove for not supplying a copy of his orders. However, the Guard does not supply a copy of the orders which they say derive from the federal government. The only evidence supplied by the Guard is a pay adjustment document signed by the State of Montana Comptroller. This document allegedly indicates that the source of monies paid to Grove was the United States Government. This is far from clear and is not sufficient to establish that Grove was on federal active duty. Nor does the Guard make clear how the funding of Guard units from federal funds negates the idea of a state militia under control of a state governor.

The record shows no indication that plaintiffs were called to federal active duty during the applicable time periods here. The District Court stated that Grove and Barry were on federal active duty pursuant to 32 U.S.C. § 502(f). However, that federal statute is merely descriptive of National Guard training. Subsection (f) states that regulations prescribed by the Secretary of the Army or Secretary of the Air Force will govern training. There is nothing in the record to indicate that at the times involved in this suit, Grove and Barry were “training.” In fact, the federal statute that precedes the aforementioned statute states that: The training of the National Guard shall be conducted by the several States ... 32 U.S.C. § 501(b). The federal statute does not establish that under the limited facts known to the District Court, Grove or Barry were under the control of the federal entity. If Barry and Grove were under federal orders pursuant to 32 U.S.C. § 502(f), the Guard should have submitted the same but failed to do so. In a similar manner, the Guard has not addressed 10 U.S.C. § 3495, which in substance provides that members of the Army National Guard are not in active federal services except when ordered thereto under the law. Again, if proof existed to show that Grove and Barry were on active federal duty, the Guard was obligated to submit proof of the same but failed to do so.

The Guard argues that Evans controls the present case. We disagree. While Evans is informative in its portrayal of the character of the Guard, the holding of the case dealt specifically with a tort claim. We there determined that Evans had no right to sue another member of the Guard ■under the State Tort Claims Act because that statute makes such claims appropriate only for a “governmental entity” which the legislature has defined as a “state or political subdivision.” Sections 2-9-101(3) and 2-9-102, MCA. We held that the Guard is not a political subdivision-clearly defined in our statutes as “any county, city, municipal corporation, school district, special improvement or taxing district, or any other political subdivision or public corporation.” Section 2-9-101(5), MCA; Evans, 223 Mont. at 484, 726 P.2d at 1161.

We were careful in Evans not to rule on any Act other than the State Torts Claims Act. Therefore, it has no precedential value when considered in concert with the Montana Human Rights Act.

We conclude that dismissal of the plaintiffs action was improper because the District Court had no evidence before it from which to determine that Grove and Barry were on federal active duty. We hold that the District Court erred in concluding that it did not have jurisdiction, and therefore erred in dismissing the action. We reverse the dismissal of the action and remand for further proceedings consistent with this opinion.

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

JUSTICE HUNT

specially concurring.

I concur in the results reached in the majority opinion, but do not agree with all that is said therein.


author: CHIEF JUSTICE TURNAGE

text:
    C. JAMES HENNEN, d/b/a MONTANA JIM’S CASINO, Plaintiff and Appellant, v. OMEGA ENTERPRISES, INC., and SUMFUN, LTD., Defendants and Respondents.
    No. 93-509.
    Submitted on Briefs March 10, 1994.
    Decided April 19, 1994.
    51 St.Rep. 369.
    264 Mont. 505.
    872 P.2d 797.

      For Plaintiff and Appellant: J. Michael Young and Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls.
    For Defendants and Respondents: James R. Walsh and Gregory G. Smith, Smith, Walsh, Clarke & Gregoire, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

C. James Hennen brought this action before the Eighth Judicial District Court, Cascade County, requesting declaratory judgment concerning the contractual status of the parties, an injunction requiring Omega Enterprises, Inc. (Omega) to remove its gambling machines from Hennen’s place of business, and an accounting of the machines’ profits and expenses. Hennen moved the court for partial summary judgment on the declaratory judgment and injunction issues. Omega opposed partial summary judgment and moved to dismiss Hennen’s request for an injunction. The court denied Hennen’s motion for summary judgment and granted Omega’s motion to dismiss. Hennen appeals. We reverse and remand.

We rephrase the dispositive issues as follows:

1. Whether this appeal is premature.

2. Whether the District Court erred by refusing to find that the parties’ business contract was terminated.

C. James Hennen met with Omega’s representative, John Gordon, to discuss and create a business contract. Hennen was interested in opening a casino in the Great Falls area but lacked capital, a liquor license and gambling machines, among other things.

Omega had an interest in a liquor license, capital, business knowledge and access to gambling machines. The parties contracted on October 2,1991. After the contract was signed, Omega assigned part of its interest in the contract to Sumfun, Limited.

Portions of the contract provided that Omega would provide Hennen’s casino with gambling machines and transfer an interest in a liquor license to Hennen. Hennen agreed to pay, in installments, $45,505.08 for the liquor license.

Although not an attorney, Gordon drafted the greater portion of the parties’ contract. Both parties agree that the contract is not a model of clarity. Paragraph 7 of the contract provides:

This agreement shall run until June 30, 1996, and shall be renewed under the same terms and conditions unless the existing debt of $45,505.08 has been paid prior to June 30,1996.

Paragraph 10, drafted by Hennen, provides:

[The] agreement shall be renegotiated by the parties signing below at any time provided a written request is given within thirty (30) days prior to renegotiating.

On April 14,1993, Hennen notified Omega by certified letter that he wished to renegotiate the agreement. The parties met the following month, on May 20 and 21, but failed to successfully renegotiate. Hennen thereafter notified Omega that the contract was terminated.

When Omega protested, Hennen initiated this action. Hennen also filed a motion for partial summary judgment, requesting the court to declare that the contract was terminated and requesting the court to order Omega to remove its property from Hennen’s casino. Omega opposed summary judgment by stating that the contract’s provisions were ambiguous and in need of judicial interpretation. Omega further moved to dismiss Hennen’s request for an injunction, stating that the equitable remedy was inappropriate because Hennen did not suffer irreparable harm. The court denied Hennen’s motion for partial summary judgment and granted Omega’s motion to dismiss. Hennen appeals.

ISSUE 1

Is this appeal premature?

Omega argues that this appeal, as it concerns declaratory judgment, is premature because Hennen did not seek Rule 54(b), M.R.Civ.R, certification of the court’s order. Hennen asserts that the Court should review both of the issues in his appeal because declaratory judgment is material to his request for an injunction, and the District Court’s summary judgment order, refusing to grant the injunction, is currently appealable.

Rule 1(b)(2), M.R.App.P., provides

In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following [case]: ... from an order ... refusing to grant... an injunction.

See also State ex rel. Keast v. Krieg (1965), 145 Mont. 521, 402 P.2d 405 (a court’s denial of a request to quash a temporary injunction is appealable). Additionally, Rule 2, M.R.App.P., provides

upon appeal from a judgment in a civil case, 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.

Hennen’s motion for partial summary judgment involved both the declaratory judgment and the injunction issues. Because Hennen validly exercised his right to appeal the court’s denial of his request for an injunction, this Court reviews the entire case. Jerome v. Pardis (1989), 240 Mont. 187, 783 P.2d 919. We conclude that this appeal is not premature.

ISSUE 2

Did the District Court err by refusing to find that the parties’ business contract had terminated after the parties’ attempts at renegotiation failed?

Omega argues that the renegotiation provision, written by Hennen, should be construed against Hennen because it renders the contract vague and ambiguous. Omega contends that parol evidence is necessary to resolve contractual ambiguities. As affirmative defenses, Omega argues that Hennen contracted fraudulently and in bad faith, that Hennen is unjustly enriched, and that Hennen waived or was estopped from using his contractual right to renegotiate the agreement. Hennen argues that the plain language of the contract allows either party to request within thirty days a renegotiation of its terms, and that, accordingly, the contract has been terminated because Hennen notified Omega of his intent to renegotiate and the parties did not reach an agreement.

This Court reviews a district court’s decision for or against summary judgment by utilizing the same criteria the lower court used in its deliberations. Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276-77. Summary judgment is appropriate when there are no disputed issues of material fact and the movant is entitled to summary judgment as a matter of law. Rule 56(c), M.R.Civ.P. When a motion for summary judgment is made and supported, the nonmoving party cannot rest on allegations or the denials of its pleadings, but must set forth specific facts showing that there is a genuine issue for the trial court. Brinkman and Lenon v. P & D Land Enterprises (1994), [263 Mont. 238], 867 P.2d 1112.

In this action to declare the parties’ contractual standings the court must look to the plain language in the contract. Section 1-4-101, MCA. When a contract is clear and unambiguous, the court must enforce the contract as it was created by the parties. Keller v. Dooling (1991), 248 Mont. 535, 813 P.2d 437.

The present contract, while providing for termination on June 30, 1996, also provided for renegotiation upon thirty days’ written notice from either party. The law favors giving effect to each provision of a contract, see § 28-3-202, MCA, and courts must interpret contractual provisions so as to allow each provision to be effective. Section 28-3-201, MCA; First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 818 P.2d 384. The covenant in paragraph 10 of the agreement requiring that the agreement be renegotiated upon a thirty-day notice did not render the contract vague or indefinite; rather it provided for a continuing contractual relationship if after notice a successful renegotiation was accomplished.

Hennen’s dissatisfaction spurred his request to renegotiate the agreement, and when attempts at renegotiation failed, the contract’s life was extinguished. The court, however, found that the thirty-day notice renegotiation provision was at odds with the parties’ intent to bind each other contractually until June 30, 1996. We hold that the finding is not supported by a plain reading of the contract and that the court erred. See § 28-3-303, MCA; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Courts are without authority to insert components in or erase components from unambiguous contract provisions. In re Marriage of McKeon (1992), 252 Mont. 15, 826 P.2d 537. We therefore reverse and remand the case for further proceedings consistent with this opinion.

JUSTICES GRAY, HUNT, NELSON and TRIEWEILER concur.


text:
    IN THE MATTER OF CERTAIN JUSTICE COURT EXPENSES
    No. 93-364.
    Submitted on Briefs January 13, 1994.
    Decided April 19, 1994.
    51 St.Rep. 372.
    264 Mont. 510.
    872 P.2d 795.
    For Appellant: Robert L. Deschamps III, Missoula County Attorney, Michael W. Sehestedt, Deputy County Attorney, Missoula, (for Missoula County Commissioners).

      For Respondent: Stacey Weldele-Wade, Milodragovich, Dale & Dye, Missoula, (for Justice of the Peace David K. Clark).
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Missoula County Commissioners appeal from an order of the Fourth Judicial District Court, Missoula County, directing appellants to pay certified office expenses for Justice Court, and attorney fees.

We affirm.

The issues on appeal are:

1. Did the County Commissioners waive their right to appeal a certified claim by the District Court when they agreed to pay the amount?

2. Did the District Court err in granting attorney fees and costs for the certification process for payment of Justice Court expenses?

In August 1992, respondent Justice of the Peace David K. Clark requested approval of funds from the County Commissioners for employment of a temporary clerical assistant to replace the regular criminal clerk who would be unavailable for work for several days in September 1992. The County Commissioners refused to approve funds for temporary assistance, maintaining that the assistance was not necessary. Judge Clark submitted the claim for certification to Senior District Court Judge Jack L. Green pursuant to the rule established by this Court in State ex rel. Browman v. Wood (1975), 168 Mont. 341, 543 P.2d 184. On August 31, 1992, Judge Green certified the claim as an actual and necessary expense which would be incurred by Judge Clark in the performance of his official duties. Judge Clark then hired a temporary clerk for 18 days on a contract basis. After receiving the billing statement for the services, he contacted the county personnel department informing them of the bill.

On October 27, 1992, the expense claim had not been paid, and therefore, Judge Clark filed a petition for a contempt order against the County Commissioners for failure to pay the certified claim. The petition also included a request for attorney fees. In a written response to the petition, the County Commissioners agreed to pay the claim, stating that invoices for the claim were received and payment was pending from the Justice Court budget, and adding that if budget funds were inadequate to meet the claim, payment would be made from either a transfer from within the budget or from other appropriations. On December 9, 1992, after the parties submitted memorandum and affidavits, Judge Green entered the following order directing the County Commissioners to pay the expense claim based upon their willingness to pay the expenses:

The Court finds that it is unnecessary at this point to address most of the issues raised in either the Petition or the Response. Specifically the question of whether this Court’s certification is an order need not be addressed since the Commissioners have indicated a willingness to pay the expense of the contracted clerical assistance for Justice Court.
The Court finds nothing improper in payment of these charges for services rendered to Justice Court out of the funds appropriated for Justice Court. If in fact the funds appropriated for Justice Court in this fiscal year are not sufficient to pay the reasonable and necessary expenses of Justice Court, then the Petitioner should request additional funds from the Commissioners. If the parties cannot agree at that time Petitioner may make another application to this Court for the approval of additional funds.

The court also directed Judge Clark to submit his claim to the County Commissioners. The order did not respond to the attorney fee request. On December 18,1992, Judge Clark filed a motion to amend the order to include attorney fees. The County Commissioners did not oppose the motion to amend, nor did they file a responsive brief.

On January 1, 1993, Judge Green retired and Judge John S. Henson became the Senior Judge of the District. On January 11,1993, Judge Clark applied to Judge Henson to assume jurisdiction over the pending motion to amend, and also requesting that the court address the issue of attorney fees. On January 28, 1993, Judge Henson entered an order assuming jurisdiction of the case, granting Judge Clark’s motion to amend to include attorney fees, and directing him to file a memorandum of costs of attorney fees along with a supporting affidavit. The County Commissioners were allowed ten days within which to object to the attorney fees after Judge Clark submitted his memorandum; if the County Commissioners objected to the costs then a hearing would be held to determine reasonable attorney fees.

Judge Clark filed his memorandum on February 3, 1993, and on February 10, 1993, the County Commissioners filed a motion for reconsideration stating that they did not file a response brief to Judge Clark’s December 18 motion to amend to include attorney fees because they believed that they had an agreement with Judge Green and Judge Clark that no briefs were to be filed. The County Commissioners requested that they be relieved of the January 28 judgment because of excusable neglect pursuant to Rule 60(b), M.R.Civ.P. The County Commissioners’ motion did not contest Judge Clark’s submitted costs, but only disputed that an improper certification process was used to grant Judge Clark’s expense claim. The motion requested that the January 28 order be vacated and a hearing set for Judge Clark’s December 18 motion to amend, or that the court enter an order denying Judge Clark’s requested relief.

On April 7, 1993, Judge Henson entered his opinion and order finding that the County Commissioners did not demonstrate excusable neglect and finding that the claim was properly certified by Judge Green on August 31, 1992. Judge Henson also found that the County Commissioners failed to object to the submitted attorney fees and costs, and therefore, granted the submitted fees and costs. The County Commissioners appeal.

ISSUE 1

Did the County Commissioners waive their right to appeal a certified claim by the District Court when they agreed to pay the amount?

The parties argue that we must decide this issue by applying the rule in Browman for resolution of an actual or potential conflict of payment of a justice court claim between a board of county commissioners and justice court by the certification of the senior district judge that such claim is an actual and necessary expense of the justice court. However, we hold that the issue in this case is resolved by the promise of the County Commissioners to pay the claim by their communication to Judge Green and then by taking no further action based on their commitment.

We have held that an appellant’s offer of a judgment and the acceptance of the offer render the issue of liability moot on appeal. Weston v. Kuntz (1981), 194 Mont. 52, 635 P.2d 269. Appellants who fail to object to an alleged error are precluded from raising the issue on appeal. Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 799 P.2d 1078. In the present case, not only did the County Commissioners agree to pay the claim, they also failed to object to the District Court’s order to pay the claim and took no further action to challenge the claim. We hold that the County Commissioners waived their right to appeal.

ISSUE 2

Did the District Court err in granting attorney fees and costs for the certification process for payment of Justice Court expenses?

The County Commissioners argue that the District Court erred by granting Judge Clark’s request for attorney fees and costs because the attorney fees and costs were the result of an erroneous certification process for payment of Justice Court expenses.

The County Commissioners first had notice of the motion to amend for attorney fees on December 18,1992, and also on January 11,1993, when Judge Clark applied to Judge Henson to assume jurisdiction over the pending motion to amend. The County Commissioners failed to object or file a brief within ten days. Pursuant to Rule 2(b) of the Uniform District Court Rules, the motion for attorney fees was granted by Judge Henson on January 28, 1993.

Because attorney fees were not objected to before the District Court, they cannot be raised for the first time on appeal.

The order of the District Court is affirmed.

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