LUTZENHISER v HOLZWORTH
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NO. 84-121 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 EARL LUTZENHISER & KENNETH RUSSELL, Plaintiffs and Respondents, -vsDICK HOLZWORTH, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding. COUNSEL OF RECORD: For Appellant: Patrick Flaherty, Great Falls, Montana For Respondent: Lawrence A. Murphy, Helena, Montana - Submitted on Briefs: June 28, 1984 Decided: P o e i b r 13, 1984 Jvrle Filed: @OV i d lgsq Clerk Mr. J u s t i c e Fred J . Weber d e l i v e r e d t h e Opinion o f t h e C o u r t . P l a i n t i f f s f i l e d s u i t f o r a judgment q u i e t i n g t i t l e i n p l a i n t i f f s t o t h e mineral i n t e r e s t s i n c e r t a i n r e a l property, money damages e n t e r i n g upon and an order the property restraining i n the defendant Following future. from jury t r i a l , judgment i n t h e sum o f $7,050, p l u s i n t e r e s t and c o s t s was entered judgment for and plaintiffs. from the Defendant District appeals Court's p r e - t r i a l motion f o r summary judgment. denial from the of his W affirm. e On March 1 2 , 1979, p l a i n t i f f s f i l e d a c o m p l a i n t a l l e g i n g t h a t t h e y were t h e l e g a l owners o f a p l a c e r mining c l a i m i n L e w i s and C l a r k County, Claim No. commonly known a s t h e Con K e l l y P l a i n t i f f s alleged. t h a t defendant unlawfully 1. e n t e r e d t h e Con Kel-ly on o r a b o u t May 2 3 , 1978, u n s u c c e s s f u l l y a t t e m p t e d t o l o c a t e a q u a r t z l o d e , a n d , by u s e o f t h r e a t s and f i r e a r m s , p r e v e n t e d p l a i n t i . f f s from e n t e r i n g upon t h e i r claim. Plaintiffs r e q u e s t e d $50,000 alleged money damages i n p u n i t i v e damages, of $25,000, sought a r e s t r a i n i n g o r d e r p r o h i b i t i n g d e f e n d a n t from e n t e r i n g upon t h e i r c l a i m and a d e c l a r a t o r y judgment q u i e t i n g t i t l e t o t h e Con K e l l y i n plaintiffs. pro se, Defendant answered t h e c o m p l a i n t of p l a i n t i f f s ' allegations. denying each Defendant a s s e r t e d t h a t p l a i n - t i f f s were n o t t h e l e g a l owners o f t h e p r o p e r t y and t h a t he was on t h e p r o p e r t y w i t h t h e o w n e r ' s p e r m i s s i o n . Defendant counterclaimed attorney, against alleging t h a t plaintiffs' plaintiffs and their a t t o r n e y had r e p r e s e n t e d d e f e n d a n t i n another case. The D i s t r i c t C o u r t o r d e r e d t r i a l set f o r January 7, 1 9 8 1 , w i t h d i s c o v e r y t o be completed and a proposed p r e - t r i a l o r d e r t o be f i l e d i n December 1980. A proposed p r e - t r i a l o r d e r , s i g n e d by p l a . i n t i f f s l c o u n s e l and d e f e n d a n t was f i l e d on December 2 2 , 1980. The proposed o r d e r s t a t e d t h a t t h e r e w e r e no a g r e e d f a c t s i n t h i s c a s e and i d e n t i f i e d t e n i s s u e s for t r i a l . Defendant disqualify plaintiffs' Court vacated the se pro appeared and filed a c o u n s e l on J a n u a r y 7. January 1981 t r i a l 7, motion to The D i s t r i c t date. Prior to s e t t i n g a new t r i a l d a t e , t h e c o u r t h e l d h e a r i n g s on v a r i o u s motions and a show c a u s e On September readiness for objections, hearinq 1983, 28, pre-trial on a restraining order. plaintiffs filed a conference. notice Defendant of filed c l a i m i n g d i s c o v e r y was n o t complete and f u r t h e r p l e a d i n g s would be forthcoming. The D i s t r i c t C o u r t s e t t h e c a s e f o r j u r y t r i a l on F e b r u a r y 1 4 , 1984. an a t t o r n e y s ' The c o u r t o r d e r e d c o n f e r e n c e and a l l p r e - t r i a l motions f i l e d by J a n u a r y 1 3 , 1984. On January 9, summary judgment, the complaint counsel defendant filed a motion for judgment on t h e p l e a d i n g s and d i s m i s s a l o f for and t h e 1984, failure defendant, h e a r i n g on t h e motion. to state acting a claim. pro E, The c o u r t Plaintiffs' appeared a t t h e reserved ruling on t h e motion. O F e b r u a r y 8, 1984, a h e a r i n g was conducted on d e f e n n dant's compel motion for answers plaintiffs' summary to motion judgment, plaintiffs' to dismiss plaintiffs' motion interrogatories, defendant's to and counterclaim. A f t e r h e a r i n g argument from b o t h p a r t i e s and c o n s i d e r i n g t h e record, the District summary judgment. Court denied d e f e n d a n t ' s motion for The case was tried before a jury as scheduled on February 14, 1984. The jury returned a verdict against defendant for $7,050 in damages, plus interest and costs. Defendant's counsel filed a timely notice of appeal of (1) the jury's final judgment against defendant, and (2) the District Court's denial of defendant's motion for summary judgment. No transcript of the trial has been. filed. In his opening brief to this Court, defendant's counsel states that " [allthough the Defendant has grounds to contest this verdict, he is without the funds to justify a transcription of the record." He asserts that the sole issue on appeal is whether the District Court erred in denying his motion for summary juc?gment. He further asserts that this Court should not be influenced by the jury verdict against defendant, since the appellate court's standard of review restricts it to the state of the pleadings on the day prior to the hearing on the motion. Rule 9 (b), M.R.App.Civ.P., provides in pertinent part: ". . . Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. In all cases where the appellant intends to urge the insufficiency of the evidence to support the verdict, order or judgment in the district court, it shall be the duty of the appellant to order the entire transcript of the evidence. . . ." In order for this Court to have a basis upon which to review the sufficiency of evidence transcript is necessary. to support a verdict, Rule 9 (b), M.R.App.Civ.P. a imposes an absolute duty upon the appellant to provide this Court with a transcript of the entire trial if sufficiency of the evidence is an issue on appeal. We hold that defendant's challenge to the final jud.gment cannot be reviewed on appeal in the absence of a transcript. Rule 56 (b), M.R.Civ. P. permits a defendant to move for a summary judgment in his favor at any time with or without supporting affidavits. Rule 56 (c), M.R.Civ.P. provides in pertinent part: ". . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw. . . ." Summary judgments serve the purpose of judicial economy where there is no genuine issue of material fact. As this Court stated in Cereck v. Albertson's Inc. (1981), 195 Mont. "The purpose of the summary judgment procedure is to encoura.ge judicial economy by el-iminating unnecessary trials, and it is proper under Rule 56(c), M.R.Civ.P., only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. ... "It is well established that a party moving for summary judgment has the burden of showing a complete absence of any genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment." (citations omitted) ... Here, the District Court concluded there were issues of material fact. A hearing was held on March 8, 1983, approximately 10 months prior to the motion judgment. for summary The court's minute entry from that date states: "This was the time set for hearing on the defendant's motion to dismiss. . Present in Court were plaintiffs and their counsel, Lawrence Murphy, Dick Holzworth, acting pro se. Mr. Holzworth offered argument favoring dismissal of the case. Mr. Lawrence Murphy replied. The parties agreed the mineral interest in the property is owned by both plaintiffs Lutzenhiser and Russell, the-only issue - -to be decided - left is the question o f damaaes * la in tiffs claim defendant inflicted - property. on (emphasis added) . . . ." a . a The District Court there concluded that the issue that remained for determination was the amount of property damage caused by the defendant. In addition, prior to entry of the order denying summary judgment, the defendant submitted a proposed pre-trial specific issues of order in which he fact for trial. identified three At that point, the voluminous court fj-le, with its numerous pre-trial motions and papers on extraneous matters, did identify specific issues of fact for determination. We hold that the defendant has failed to show an absence of genuine issues of material fact and that he was entitled to Court's judgment as a matter of law. denial affirmed. We concur: of the motion for summary The District judgment is
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