*1 L.L.C., d/b/a BEEHIVE SVKV,
HOMES OF HELENA, Respondent,
Plaintiff, Counterdefendant
v. TY d/b/a HARDING HARDING, ENTERPRISES, Appellant.
Defendant, Counterclaimant No. 04-391. July 19,
Submitted on Briefs
2006.
Decided November
2006.
MT
For Joe Respondent: P.C., Gillespie, & Helena. the Court. Opinion delivered the
CHIEF JUSTICE GRAY (Harding), doing Harding Enterprises as Ty Harding, business ¶1 Court, Lewis and District order of the First Judicial appeals from the County, SVKV, (SVKV), L.L.C. granting Clark Helena, on doing Harding’s business Beehive Homes of counterclaims, denying from the later Harding’s court’s order for a on We SVKV’s motion. affirm. The on are: appeal issues ¶2 by failing 1. Did the District Court its discretion to hold a abuse
¶3 parties’ waiver express obtain the of a before Harding’s SVKV counterclaims? 2. Did granting summary judgment the District Court err in SVKV? 3. Is to attorney’s appeal? SVKV entitled fees or costs on
BACKGROUND Montana, October of Bee Hive Homes Northern Inc. (Northern) contract, entered into a with Ken Vivrette and Damian Flaherty their signing capacity it in as Northern’s officers. The other party to the 1996 Development, contract was Bee Hive Inc. record, According to a Bee Development, document Hive Homes
Inc., America, was the predecessor Inc., both Hive Homes Bee Homes, Bee Hive Inc. Another document states Bee Hive Homes of America, Inc., Homes, Inc., and Bee Hive had entered into an *3 agreement pursuant sub-franchisor, to which Homes, Bee Hive Inc., others, could in turn sub-franchise upon to written consent from America, Bee Hive Homes of of relationship Inc. The these three in appeal. Therefore, entities not at issue to all we refer of them as Bee Hive. The generally 1996 contract stated that Bee would provide
¶8 Hive plans, certain specifications, operations procedural and manuals for (homes) residential exchange payments care facilities in for Northern’s that, of certain sums. paragraph One of contract stated as consideration for Bee Hive’s providing consulting certain services-including matters, assistance in construction-related accounting payroll procedures, training, and and menus-Northern pay specified gross would of homes’ percentages its rents. In late before or around the time as apparently
¶9 same executed, involving 1996 contract Northern Tricia and Damian was (TDSK) Flaherty TDSK, Ken and Sue and Vivrette formed to L.L.C. what, any, and operate relationship
build homes. It is not clear if of1999, and March Later-perhaps existed between TDSK Northern. in according testimony-the bought to Sue deposition Vivrette’s Vivrettes involved, Flahertys out the and formed SVKV. The Vivrettes were via entity another, construction, development operation and one County. of three homes in Lewis and Clark Vivrettes, In Bee sent a letter to the June of Hive addressed Helena, them at Hive of in which Bee Hive advised it
to Bee Homes “restructuring operations to conform to all national and federal franchise execution franchise law” and recommended the of options: letter forth other agreement with Bee Hive. The also set two rej an “option repurchase and ect the offer.... This repurchase offer agree existing agreement you means that will to continue under you sign agreement.” franchise The and that do not elect to new acceptance options either the last would letter stated that of of two any Hive and liabilities constitute a release Bee claims nor any and of homes. regarding the offer sale Neither Vivrettes entity responded to the letter. involving Vivrettes Later, Bee Hive executed a “sub-franchise October granted that Bee Hive
agreement” Harding, which stated build, own, and Bee Harding operate “the exclusive Hive (under ...) and to agreement Homes the franchise sell franchises using the under the Names and System [Bee Hive’s] behalf of Homes Harding agreed agreement, within Montana. the 1998 Marks” Under franchise fee in the amount of 50% of the fees pay franchise each franchise” after the Agreement under “the Franchise payable “each franchise eight acquired Harding, first and owned well as addition, agreement In the 1998 stated sold” Montana. royalties offranchise on the franchises Harding agreed pay 50% franchise sold” by Harding in Montana “each
acquired owned Bee Hive agreement After the was executed Montana. time, for a Harding, paid Harding period certain amounts but SVKV ultimately stopped-its payments. later reduced-and against Ty August Harding, filed a complaint SVKV demanded Enterprises, asserting he had
doing business as agreement and had threatened to sue SVKV money under the 1996 declaratory judgment things, requested other SVKV Among collect. contract, void, asserted breach
that the 1996 contract was during points At different requested damages and restitution. claims. action, each of SVKVs underlying the District Court dismissed counterclaimed, affirmatively alleging Harding answered and *4 Inc., Harding Enterprises, actually Harding Enterprises and were he contract, fraud, unjust enrichment. SVKV of and asserting and breach the counterclaims. responded 2002, scheduling The District Court held a of conference June telephonically, counsel for both attended and later
which scheduling stating a order entered briefed, any fully
[w]hen motion has been oral if by any has held and motion requested party been is submitted decision, for one must so advise the Court filing serving and “Notice Submittal.” Until such served, notice has been filed and the motion will not be Hearing deemed submitted for decision. on a for motion summary judgment is deemed written for request hearing is within period submitted the time for filing the briefs on motion. of2003, September
In the parties stipulated after to continue the trial date, the court entered scheduling containing another order the same language. In October SVKV for moved on
Harding’s counterclaims, Harding responded. On day the same filed its brief in reply November of filed SVKV and served a stating rule, “Notice of Submittal” “[p]ursuant to local hereby undersigned Court briefing [sic] advised on the Plaintiffs summary judgment motion for has completed, ... been party requested neither has argument, matters be ready Harding deemed submitted and for dispute decision.” did not respond to the Notice. January of2004, granted the District Court SVEN’Smotion Harding’s counterclaims, determining on there no privity Harding
was evidence contractual between and SVKV. Approximately later, four days Harding on requested SVEN’S judgment-asserting, among things, other that “it ... deny would be an abuse of discretion should the Court [Harding] a [Harding] matter ‘unless’ ‘specifically’ hearing.” waived its The Court hearing. District denied the for a It referred September to the June print,
orders that directed the parties, request hearing by bold briefing the end on a motion or the would deemed be Noting it briefing completed waived. had ruled two months after requested hearing, neither had the court stated “apparently expects the Court to on pending sit indefinitely
motions hearing.” until decides it wants
400 in Harding We set forth additional facts the discussion appeals.
¶18 below. OF
STANDARDS REVIEW on deny review a district court’s decision We ¶19 City judgment Virginia motion for an abuse of discretion. v. Olsen, 527, 13, 383, 176, 13, MT Mont. 52 P.3d 13 ¶ ¶ 310 ¶ omitted). (citation arbitrarily, its it A court abuses discretion when acts the bounds employment judgment, without ofconscientious or exceeds v. injustice. Empire in substantial Lath resulting Pumphrey of reason 797, Plaster, 99, 16, 116, 16, 135 MT 16¶ and Mont. ¶ ¶ (citation omitted). novo, grant de We review district court’s light the in the most favorable
determining whether-viewing evidence drawing the all reasonable inferences the nonmoving party and nonmoving issues of material fact exist and party’s favor-genuine entitled to as a matter of law. moving party whether the 56(c), M.R.Civ.P.; 62, County, Ravalli 2006 MT See Rule Prindel v. ¶ (citations omitted).
DISCUSSION addressing appeal, issues us on we note the Before the before variously Harding, Harding as Mr. parties’ appellant briefs refer to Enterprises, Harding Enterprises, regard, and Inc. this we observe as agreement Harding Enterprises, names Inc. “Sub- By Ty signed, pertinent part, “Sub-Franchisor: Franchisor” signing on designation person Its unusual for a Harding, Owner”-an alleged via Although Harding corporate status corporation’s behalf. counterclaims, has moved to amend the Harding its never answer complaint, caption is the set caption under which SVKVfiled which However, the District Court have used a forth both above. formally Ty Harding, doing business
caption-never adopted-naming line, and, naming the defendant below Harding Enterprises as as Inc., as against the counterclaimant SVKV Enterprises, as Harding Indeed, in this District Court’s orders issue counterdefendant. Moreover, appeal Harding’s notice captions. have different
appeal Harding, doing named”-referring Ty above states “Defendant ... this case.” SVKVhas Harding Enterprises-“appeals as business Enterprises, Inc.’s questioned propriety has a defendant. Nor not been named as counterclaims where has Court Court either asked District or this to resolve apparent confusion. any request Absent to determine decline appellant’s identity, such a
counterclaimant’s to make original use caption determination. case because that We Further, properly resolving amended. without caption never identity appellant, appellant “Harding” actual we refer to the “it” to Ty only and we refer as an individual in association his deposition testimony. failing 1. Did the District abuse Court its discretion parties’ express hold a or obtain the bearing waiver before SVKV
Harding’s counterclaims? Harding “caught it was off guard” asserts the District Court’s
¶24 summary that, order judgment SVKV because it expected summary before granting judgment, the court would a schedule hearing parties’ express or obtain the of hearing. Harding waiver the does not the dispute scheduling that orders equivocation state without the District Court party would determine a waived the hearing summary on a party motion if the did not a hearing briefing. before close the of Nor does that it dispute respond failed to when SVKVfiled and served its Notice that neither had party requested hearing briefing before end of the and the matter was submitted for decision. Harding argues the that-despite orders and failure respond prior to SVKVs Notice-this Court’s cases a court require express
schedule a from parties obtain waivers the before granting summary basis, judgment. On this contends the District Court by granting summary judgment abused its discretion a hearing denying Harding’s without post-judgment motion for a hearing. following out, As the somewhat detailed discussion bears we County, conclude Cole v. Flathead 236 Mont. P.2d 771 97 (1989)-one by Harding-controls case advanced here. Cole, granted summary the district court the defendants’
judgment motion, hearing, without a grounds plaintiffs that the had not filed a brief ten forth response days, within the time limit set 2(a) (MUDCR). Rule of the Montana Uniform District Court Rules Cole, doing so, 236 at Mont. at 98. In the district court 2(b), MUDCR, states, apparently part, relied on Rule which may subject summary ruling “[flailure to file briefs the motion to .... party days
Failure to answer ten file an brief adverse within 402 Cole,
shall be deemed an admission that the motion is well taken.” Mont. at 99. were appeal, at P.2d On the issues whether 2, MUDCR, filing response applied time limit for in Rule brief motions, party rely upon whether a is entitled to of a or oral on a motion for setting MUDCR, judgment, any among existed whether conflict of Montana Rules Civil Procedure and district court’s Policies 413-14, at at 98. Procedures. issue, M.R.Civ.P., 56(c), allows Addressing the first noted Rule we opposing summary judgment “prior to serve affidavits testimony at a day hearing,”
to the and court consider oral 415-16, 771 judgment hearing. Cole,236 P.2d at 99. briefing limit set in Rule Accordingly, we determined time forth 56(c),M.R.Civ.P., 2(a), MUDCR, conflicted with Rule which authorizes only if, among things, no grant summary judgment a court to other genuine [that] fact does not admit “inquiry issues material exist-an merely point, such as whether briefs have decision on technical 2(e), provides been filed on time.” Pursuant to Rule MUDCR-which conflict, Procedure that in the event of a the Montana Rules Civil 2(a), 10-day concluded that the time limit contained in Rule control-we MUDCR, apply summary judgment Cole, Mont. motions. did 416-17, 100. P.2d at remaining issues, next addressed both of which We necessity to the of a question characterized related Mont. at in connection with a motion. Noting applied P.2d at that either “could have [djistrict “may opined hearing,” [c]ourt for a respect by provision in the district court’s
have been deterred” in that *7 417-18, Cole, at 100. 236 Mont. at Policies and Procedures. court’s provision The and stated that the district Policies Procedures ” “ court discourage’ arguments and that the ‘practice will be to oral ” “ 2(c) (d), Rules and ‘full-fledged compliance’ with require
would “‘must request argument for oral MUDCR-by which the court meant are terms, alone specific to show me that briefs be couched and all fully your me client’s contentions insufficient to advise of ” Cole, 418, 101. In 771 P.2d at of law.’ points relevant 2(c) (d), MUDCR, unchanged since that we note Rules and regard, time, as read follows:
(c) sponte argument order sua argument. The court oral Oral party. application of upon (d) argument When motion deemed submitted. Unless oral court, the enlarged by ordered or the time is motion is applicable submitted expiration any deemed at the of time limits having been supporting set forth above without briefs filed. ordered,
If will be deemed argument oral motion argument submitted at the close of unless the court orders briefs, additional in which will be deemed case motion designated filing submitted as the date as the time for the final brief. Cole, Penny, On appeal quoted Dredge Corp. v. 338 F.2d (9th 1964)-a involving a effectively
461-62 Cir. case local rule that precluded party hearing by an from requesting requiring adverse that such a be request underlying attached to motion-for statement 56(c), together,
Rule[s] and read authorize district courts provide rule by party desiring argument that a oral on a therefore, must apply absence of which oral will be deemed have been involved, waived. Such a local rule upheld, Bagby v. [(8th 1952),
United States
Cir.
233].
199 F.2d
parties not failure simply by to file either the movant or the adverse are entitled to a under Rule 56 ordinary acknowledged in the The trial might case.” Court that a court “clearly with a if dispense moving were entitled” to law, as a matter but determined that situation was not present Finally, there. the Court court’s “findings observed district of fact conclusions law” did not include a determination that no and, genuine therefore, issue of fact did specify material existed grounds the motion sufficient particularity rationale, apprise appellate of its as required by 52(a), Consequently, Rule M.R.Civ.P. the Court reversed the order *8 Cole, 419, at judgment and remanded. Mont.
requirements or long preclude requests. as courts do not deter such Regarding our in Cole a must have party statement that right hearing summary judgment a
“specifically waived” the to a on motion, parenthetical phrase “and not that statement also includes by the failure to file 236 Mont. at simply briefs.” parenthetical This has not carried phrase-which been “specific” that refer to post-CoZe forward in the cases mentioned below that, rejected any “explicit” or waiver-establishes in notion merely failing to party right hearing by a could waive the file that “specific” “explicit” not or a brief. did address Cole whether We if the face party request hearing could occur a failed to a waiver however, request; interpretation a a that requirement such Dredge Corp. very At the supported by Cole’s favorable citation waiver, least, opposed language regarding “specific” in Cole brief, failing response way a in no contradicts the waiver file trial court immediately preceding-statement that a earlier-almost and, hearing may require party apply a a hearing a request, such a deem the waived. absent party Here, scheduling provided orders that the District Court’s briefing during time on request argument any oral or could above, requirement entirely consistent the motion. As discussed that by-Cole. has advanced expressly with-and authorized precluded the District Court nothing suggesting record indeed, orders requesting hearing; deterred it from during request submit a written print state bold could briefing. Thus, grant the District Court’s Cole. is consistent with
without position post-CoZe support cases in Harding also relies on Ins. case. It advances Aetna required Life (1992), Jordan, for the
Co. v. preclude that a district court
proposition deny motion or requesting motion for opposing such *9 summary addition, Harding judgment is denied. relies on Estate of 55, 15, Inn, 325, 55, MT Schwabe v. Custer’s Mont. ¶ ¶ 903, 55, rule, “[a]s regarding general P.3d the statement that a an ¶ required summary judgment for unless it is specifically parties”-a statement we made before declining party’s to address a assertion to a second that it entitled summary judgment hearing for the because assertion was raised appeal. Schwabe, regard, first time on See 56-57. In Estate ¶¶ we note that other “specifically cases include similar waived” or “explicitly See, 15; language. e.g., Virginia City, City waived” Linn v. ¶ County 235, 8, 8, Dept., 145, Health 1999 MT ¶ ¶ Harding Clover, 27, 31, 8. also advances Konitz v. 1998 MT ¶ ¶ 1138, 31, in which agreed ¶ with a
contention that are right hearing entitled as a matter of on to a a motion summary judgment. As in post-CoZe these statements in
¶35 cases establish that a to a party summary judgment hearing may entitled and a court not preclude deter or requesting from one. our Nothing post- Cole cases altered our require has statement in Cole that a court parties to request hearings summary judgment on Nor motions. have any ofour post-CoZe presented cases addressed the issue whether here: to timely judgment who fails on a request hearing summary motion-despite requirement request-is for such a nevertheless hearing, especially entitled to a after the trial has ruled on the motion. undisputed It is Harding did not or
assert its to a right hearing until after the District entered Court notice, SVKV-despite receiving ample via the Notice, orders SVEN’S that the District would Court deem the a hearing waived and decide the motion without above, party requested unless a As noted Harding one. has advanced nothing suggest Court precluded District or deterred
requesting summary judgment on SVEN’S or hearing. otherwise interfered with its Given these law, Harding circumstances and our case that in has established granting hearing, without a Court District arbitrarily, acted employment judgment, without of conscientious resulting injustice.
exceeded the of reason substantial See bounds Pumphrey, by granting We the District Court did not abuse its discretion hold Harding’s SVKV on counterclaims without first
holding hearing. 2. Did the District Court err
judgment? payments asserts entitlement from SVKV based on agreement.
certain in the 1996 contract and 1998 provisions Paragraph pay agreed 3.3 1996 contract states that Northern Bee Hive consulting
[a]s consideration for the services described in (6%) gross payable monthly, six rents paragraph percent (60) permit beginning sixty days occupancy after issuance of the (5) (4%) Homes, percent first five after the sixth Home four (10) years permit ending issued ten after said occupancy (2%) (10) years, pay percent After ten shall two date. Northern rents in gross perpetuity. Paragraph agreement and Bee Hive 2.1 of between *10 reads as follows: Subject
Grant of Franchise. to the terms and conditions contained hereby to Agreement, grants [Bee Hive] Franchisor Sub- this accepts, and the [Harding], hereby Franchisor Sub-Franchisor (under build, own, right operate and Bee Hive Homes exclusive to to sell on Franchisor’s agreement...) the franchise and franchises using the the Names and Marks System behalf of Homes under [Montana]. within agreement the states
Paragraph 3.2 of hereby pay Franchise Fee. to promises agrees and Sub-Franchisor Fee”) (the amount fee “Franchise in the to Franchisor franchise (I) (50%) payable under the of of: the Franchise Fees Fifty Percent by Agreement acquired and owned Franchise each franchise Area, Fees shall that no Franchise provided Sub-Franchisor in the by the acquired the and owned Sub- paid be on first 8 franchises (ii) payable Franchise fees [sic] in the Area and the Franchisor by sold Sub- agreement for each franchise under the Franchise Fees Area, payable Franchise to be [sic] Franchisee in the such the delivery Agreement. of Franchise upon the execution and agreement states 3.3 of the 1998 Paragraph
Royalty. Fee, to Franchise Sub-Franchisor In addition the (the “Royalty”) royalty pay and to to Franchisor promises agrees (I) (50%) Fifty of Percent of the Franchise the amount Royalties, payable by and Sub- including penalties, interest (eight) acquired by Franchisor on the first 8 franchises and owned (ii) (50%) Area; Fifty the Percent [sic] Sub-Franchisor the Royalties, including penalties, payable by
Franchise interest and on and acquired Sub-Franchisor the 9th each additional franchise (iii) and the Area Fifty [sic] owned Sub-Franchisor in the (50%) of Royalties, including Percent the Franchise interest and penalties, received Sub-Franchisor Franchisee each Royalty payable franchise sold the Area. The is due and on or day following before the 15th of the month month for calendar Royalties which the Franchise required paid are to be respective
Franchisee under Sub-Franchisor their Franchise Agreements. Harding genuine contends that a issue material fact exists with
respect to whether to the agreement-Harding
Bee to assign rights Hive-intended Bee Hive’s under
contract, including money, Harding. to collect to In this regard, Harding correctly nothing notes that in the 1996 contract prohibits assignments. responds SVKV agreement, byits that the 1998 terms, only franchises, applies Harding raised has not genuine issue material legal argument fact a valid to refute position SVKV’s that its homes were not franchises. In granting SVKV, that, the District “[w]hile Court reasoned there obligations Hive], [Bee be contractual between SVKV and simply there is no evidence privity between and SVKV.” On basis, genuine trial determined no issue of material fact existed, and as a SVKV entitled matter of law. Replying agreement to SVKV’s does not franchises,
apply if asserts contract have given special meaning, they contract term a should be able advise meaning. a court of that special respect, Harding relies Corp.
Ranch
& D Holding (1996),
[t]he words be according legal their popular sense rather than strict meaning used in a unless technical sense or special meaning given usage, to them in which case latter must be followed. entirely clear, Harding’s argument not it is that Bee
Although appears meaning term “franchises” Harding gave special Hive and Twayne agreement. regard, president Bee this Hive speaks agreement to his of the 1998 interpretation Walker’s affidavit whole, any meaning of term special as a rather than to Ty Harding in his importantly, deposition “franchises.” More testified he regard he did as franchise holders and that not the Vivrettes an Bee Hive Northern as the 1996 contract between viewed agreement agreement. than a Based on operating rather franchise genuine testimony, Harding has failed to issue conclude establish any special ascribed respect meaning of material fact with to whether agreement parties encompasses to the term “franchises” the 1998 SVKV’s homes. language agreement also asserts that the Harding rights Hive under position assigned his Bee
supports question The a contract is a of law. interpretation 1996 contract. writing, parties’ has reduced to intention When the contract been alone; thus, ascertained, if if a possible, writing from the to be unambiguous, apply are clear and court must contract’s terms 23, 2006 8,MT as written. v. Polson School Dist. No. language ¶ Wurl (citations omitted). An ¶ whole, contract, as a language where the ambiguity exists contract reasonably interpretations. more When a subject two or determining a ambiguous, interpretation of the term involves term is determination regarding parties’ intent. The initial question fact however, for a exists, is a of law ambiguity question an whether (citations omitted). Wurl, court to determine. First, specifically refers Harding contends that-because 2.1¶ interpretation of the using system-a Bee reasonable
to homes Hive fees rights Hive’s to collect agreement assigned is that Bee Montana, disagree. including SVKV’s homes. We from all homes in exclusive granted 2.1 that Bee Hive “the Paragraph states (under build, the franchise own, Bee Hive Homes operate Ty Given [Bee Hive’s] behalf[.]” to sell franchises on agreement...) agreement parties’ special testimony establishing the 1998 Harding’s homes, encompass SVKV’s meaning of term “franchises” did *12 409 above, discussed it is not to 2.1 as to interpret applicable reasonable ¶ Thus, 2.1 ambiguity SVKVs homes. we conclude does not create an ¶ to the respect agreement Harding whether 1998 authorized to pursuant collect fees from SVKV to the 1996 contract. Next, that, Harding argues by explicitly requiring pay it to Bee royalties,
Hive 50% of franchise fees and and 3.2 3.3 of 1998 ¶¶ agreement implicitly Harding authorize to collect 100% of the royalties. premise, franchise and From Harding fees that asserts “the only logical interpretation agreement] [1998 of the Bee that Hive intended to assign all its rights obligations under the [1996] Harding, including right Contract to to Harding fees[.]” collect 28-3-201, MCA, also advances which states contract § “[a] must receive lawful, interpretation such an operative, definite, as will make reasonable, capable of being carried into effect if it can be done violating without parties.” intention of the Assuming arguendo that agreement the 1998 implicitly authorizes
Harding royalties general, to collect franchise fees and the issue here is Harding whether has the to collect franchise fees and royalties SVKV. terms, By their 3.2 apply only and 3.3 to ¶¶ from and, above, Ty “franchises” as addressed Harding’s testimony special establishes meaning agreement ascribed the 1998 parties to the term “franchises” encompass did not homes. SVKVs addition, any evidence-or, indeed, we observe the record lacks any argument-that royalties franchise fees and mentioned 3.2 ¶¶ and 3.3 of agreement any way the 1998 are related in 3.3 to ¶ contract, 1996 in which agreed pay Northern to Bee percentages Hive of its gross “consulting Thus, homes’ rents for services.” we conclude ¶¶ 3.2 and 3.3 do not an ambiguity regarding create whether
agreement Harding authorizes collect payments to from SVKV pursuant Having to the 1996 contract. concluded that none
paragraphs by Harding advanced creates an ambiguity, further agreement conclude unambiguously apply does not to and, thus, SVKVs homes does assignment any not constitute an rights Bee Hive’s under Harding. the 1996 contract to argues, however, Harding despite merger the inclusion of agreement,
clause in the 1998 evidence-including extrinsic Walker’s Ty Harding’s testimony-is affidavit and deposition admissible assign Bee rights demonstrate Hive’s intent its under the 1996 that, contract, contract. reiterate interpreting We we first alone, parties’ ascertain the intent resort writing ambiguous if only extrinsic evidence the contract on its face. Potts, 178, 21,311 MT
Stockman Bank Montana v. ¶ (citation omitted). Here, 21, 52 have concluded-as agreement unambiguously of law-that the 1998 does a matter Thus, Harding question from SVKV. no fact authorize collect exists, regarding agreement parties’ intent and extrinsic evidence is not admissible. genuine issues of material fact remain Finally, asserts
regarding unjust its enrichment counterclaims. fraud Bee Hive dependent its fraud counterclaim is on whether concedes have assigned rights under the 1996 contract. Because we no agreement apply did not SVKV’shomes and determined *13 occurred, 1996 we assignment rights of Bee Hive’s under the contract Harding’s need not further address fraud counterclaim. contends, however, unjust enrichment also
¶49 Harding did dependent privity. on its contractual counterclaim not Court, clear despite in District SVKV’s not make this enrichment Harding’s unjust counterclaims assertion that fraud privity contract. While this Court dependent Harding’s were on both novo, generally de we granting judgment also reviews orders See, e.g., appeal. time do not address issues raised for first on 30, 310, 30, 460, 125 MT 329 Mont. Monforton, ¶ Andersen v. ¶ (citation omitted). Thus, Harding’s 614, decline to address ¶ contention further. err hold the District Court did not in We
¶50 counterclaims. Harding’s to SVKV on appeal? attorney’s ¶51 on fees or costs 3. Is SVKVentitled to First, noting fees costs on requests attorney’s appeal. SVKV ¶52 contract, SVKV relies counterclaims were based on the Harding’s stating prevailing in an party that the provision on a that contract to is entitled costs provision action enforce a contract to however, for authority, no attorney’s appeal. fees on SVKV advances litigant-as may require an unsuccessful proposition attorney’s appeal fees costs or on appeal-to pay is here on litigant after we have determined provision, under a contract 23(a)(4), an M.R.App.P., requires Rule the contract. privity to relevant authorities. arguments with citations appellant support 111, 34, MT Marriage Markegard, ¶ See re (citation omitted). 23(b), M.R.App.P., Rule authority, we decline respondents. the same of Absent requires appeal attorney’s fees on for costs and request further address SVKV’s provision. on the contractual based 25-10-104, Regarding appeal, costs on SVKV also relies on §
MCA, that, wliich provides except certain circumstances not applicable costs, here in which this Court has discretion to award “the successful shall party recover from the other his costs.” Rule 33(a), M.R.App.P., states costs will be taxed provided by 25-10- § 104, MCA, and provided by decision, unless otherwise the Court in its automatically costs will Thus, be awarded to the party. successful under the case, circumstances in this successful need not request costs appeal. Although Harding on request addresses SVKVs attorney’s fees, Harding does not address SVKVs for costs appeal pursuant 25-10-104, MCA. § We have determined the District Court did not abuse its granting summary discretion or err in to SVKV on counterclaims Harding’s hearing. without a Therefore, successfully SVKV has against defended Harding’s appeal and is entitled to its appeal pursuant 25-10-104, costs on MCA. § Affirmed. LEAPHART,
JUSTICES COTTER, WARNER, RICE and MORRIS concur. NELSON,
JUSTICE concurring part and dissenting part. I concur in the Court’s resolution of Issues Two and Three. However, One, with respect to Issue I agree while with the Court’s ultimate conclusion that Harding waived its
judgment hearing, I dissent
analysis
from the
proffered
the Court
in support of this conclusion.
In a
beginning
series of cases
County,
with Cole v. Flathead
(1989),
are “entitled” to a hearing summary and, on a motion for judgment therefore, a district court “preclude” party requesting (unless “deny” nor such a request when made (2) denied), motion itself is this exists unless it is “specifically by mandates, waived” all parties. Given these admonition set forth in the District scheduling Court’s orders in the hand-namely, case at “[h]earing that a on motion for is deemed waived unless a written request for
submitted within the period filing time for the briefs motion” (bold added)-is omitted, typeface emphasis propriety. of dubious Nevertheless, below, for the reasons set forth the court’s admonition is reconcilable with Cole and its progeny, though such reconciliation requires development further of Cole’s waiver rule. task, Rather than take on this the Court elects instead to
¶57 completely “authorize^]” rewrite Cole so that it the District Court’s below, however, As never in explained orders. we Cole-or case, any matter-“expressly approved” “expressly in other for that or an practice requiring parties authorized” the trial court action to or waiver. This brand new risk air by majority has out of thin of the Court holding been fabricated today grafted opinion. onto the Cole vein, In a similar of our cases contain post-CoZe several Yet, holdings.
misstatements of Cole’score rather than deal with these glosses Court them forthrightly, inaccuracies over with one still, in sentence to purports equate sentence. Worse the Court that one actual post holdings the misstatements our -Cole cases with the Cole, they if same proposition. “establish” the Unfortunately, the inevitable result of the Court’s revisionist
approach-as opposed overruling clarifying precedents or our based rules, they actually legal say-is take-your-pick on what buffet unpredictability. creates It is which in turn confusion therefore necessary provide independent an discussion of Issue One-one holdings which rests on the actual of Cole and which also clarifies the holdings. containing inaccurate restatements of Cole’s cases procedural rules relied on addressed two County’s district court Flathead motions 56(c). First, M. 2 of the
judgment under
R. Civ. P.
Rule
Montana
(“M.
R.”)
U.
provided
Uniform District Court Rules
D. C.
“
days
to file an
within ten
‘[flailure
answer brief
adverse
” Cole,
taken.’
shall be deemed an admission that motion is well
(some
omitted)
415,
emphasis
(quoting
Mont. at
district and, accordingly, granted the motions. taken 2(b), the on Rule district appeal, relying On we observed that point,” motions a technical which County’s
court had decided “on 56-namely, “to contrary to the of a motion under Rule purpose genuine there no issue of fact.” dispose promptly of actions which Thus, 99, at “the at 771 P.2d because 236 Mont. deciding Court in question for the District essential for the defendant is plaintiff either for fact,” Cole, there exists a issue material genuine
whether
Rule 2
held that the
which
portion
*15
deemed a party’s failure to file an answer brief
ten days
within
as “an
admission that the
apply
motion is well taken” did not
to motions for
summary judgment, Cole,
the district court which stated that (in I
unless am satisfied that argument oral would be beneficial may it, which case I call for sua sponte), my practice will be to (and discourage occasionally wasteful your) use ofthe Court’s time, 2(c) and to require full-fledged compliance with Rule (d), By Uniform Rules. “full-fledged,” your I mean application for present leave to oral terms, must be couched in specific me show that briefs alone are insufficient to advise fully me your client’s contentions and all relevant points of law. (some
Cole, 418, 771 236 Mont. at P.2d at 101 internal quotation marks omitted). Relying rule, on this the district court had denied the Coles’post-
judgment motion to set aside the order granting summary judgment and their concomitant request argument. for oral We determined that error, this was reasoning as follows: 56(c),
[UJnder Rule is contemplated from which the district court will consider not so legal arguments, much but rather whether genuine there exists issues of material fact.
Moreover, it is permissible under Rule 56 for the District Court to receive affidavits on day and to take oral evidence, as has been indicated above.
Cole,
¶65 (such right by is a and that inaction itself 56 motion matter Cole) brief, case not failing responsive to file as was the in does a subsequent this A review of right. constitute waiver of our holdings in that we have remained faithful to these precedents reveals variety of contexts. First, Jordan, 208, 210-12, 835 in Ins. Co. v. 254 Mont. Aetna Life 770, (1992), holdings but then 772-73 we confirmed the of Cole reinstated its order properly determined that the district court had had to Aetna because the Jordans that support post-judgment in their brief in of their motions “admitted” Then, summary “no questions” precluding judgment. there were fact 27, 301, 1138, Claver, in Konitz v. 1998 MT 287 Mont. 954 P.2d that, in pursuant holding with to Rule 56 and our agreed Claver right hearing are as a on a parties “the entitled matter summary agree party opposing but we that the judgment,” did testify hearing. prior motion is “entitled to notice” at that the without Konitz, Rather, decision 31. we concluded that a district court’s ¶ testify is “a party the the motion to opposing whether allow Konitz, discretionary ruling.” ¶ 32. 235, Next, MT City County Dept., v. Health Linn case, 145, 302, ordinary “[i]n
Mont. 988 P.2d we first stated summary judgment hearing to a unless have a Linn, then allowance hearing explicitly is waived.” 8. We noted our ¶ the facts case”-i.e., for “the unusual when under law and in Cole ” “ adduced, as a matter of law to ‘clearly the movant is so entitled’ order, summary might, by dispense a district judgment court Linn, 419, necessity hearing. (quoting 236 Mont. of a ¶ 101). us to whether Examining facts before determine 771 P.2d County Health City exception applied, concluded of law clearly judgment as a matter Department “was not so entitled general that a exception make this to the rule as to case summary by claim having before her dismissed entitled grant court’s Linn, 10. We therefore reversed district judgment.” ¶ hearing. summary absence of judgment 15, Inn, 325, 2000 MT 303 Mont. v. Custer’s In Estate of Schwabe 903, of whether question with the presented 15 P.3d we were court summary hearing. The district judgment are entitled a second parties’ cross motions for held a had
judgment and thereafter had issued an order denying both motions.
Schwabe, However, later, 52. four months after “new evidence or ¶ new arisen, materials” had the district court ruling revisited its entered Schwabe, favor of Custer’s Inn. 52- ¶¶ 53. Reviewing the actions, district court’s we reaffirmed that general rule,
[a]s a an oral required specifically parties. See Cole County (1989), v. Flathead 412, 418-19, 97, 236 Mont. 771 P.2d 101; City County Linn v. Dept., 235, 8, Health 1999 MT ¶ 145, 988 P.2d ¶ 8. This Court has stated that a not, district otherwise, rule or preclude party requesting argument, deny nor such a request when made opposing the motion. See Aetna Ins. Co. v. Jordan Life (1992), 208, 211, (quoting Cole, 101). Mont. at 771 P.2d at
Schwabe, However, a summary judgment had, fact, been held on Custer’s Inn’s Thus, motion. the issue was whether the *17 district court required to afford the Estate a summary second judgment hearing when the court revisited its order denying that motion. We declined to question, answer this since the Estate had objected neither to the district entry judgment court’s without a (or thereof) second hearing adequate notice nor requested such a hearing. Schwabe, 56-57. We therefore ¶¶ concluded that the district court did not abuse its discretion when it entered
in favor of Schwabe, Custer’s Inn. 58. ¶ Lastly, Virginia in City Olsen, 176, v. 2002 MT our most recent applying Cole, decision presented we were
again
“clearly
with the
entitled” exception previously discussed in
stating
Linn. After
general
the
principle that “in the ordinary case the
parties
right
have a
to a summary judgment hearing unless the
hearing
waived,”
is explicitly
Virginia City,
Linn,
8),
15 (citing
¶
we
¶
“ ‘[t]here
reiterated that
may be an occasion when under the law and
adduced,
the facts
the
clearly
movant would be so
entitled as a matter
summary
law to a
judgment
that a
might by
district court
order
”
dispense with the necessity of a hearing,’ Virginia City,
16¶
(alteration
original)
in
(quoting Cole,
on the facts of the since the district court had neither entered an dispensing order necessity with the of a hearing specified nor “with 52(a), grounds R. Civ. particularity,” required by M. P. sufficient summary City. Virginia to underlying grant judgment Virginia its Furthermore, only hearing parties 16-20. afforded the had City, ¶¶ discovery pleadings or place responsive taken before was conducted depart filed. we saw “noreason this case to Consequently, were summary motion general party opposing judgment rule that a is genuine hearing to a in order to establish issues material entitled 56(c), M.R.Civ.P.,” Virginia City, pursuant fact to Rule ¶ co-defendant, Mason,
concluded, that were accordingly, Olsen and his hearing prior entry of a evidentiary “entitled to further case,” Virginia City, determination of the merits ¶ summarize, Thus, to our the movant and cases establish both hearing on a
the adverse are “entitled” to a parties, all right waived” judgment, “specifically unless denied, “clearly or unless the movant is so unless motion is the law and the facts adduced entitled” under order, necessity dispense with the of a might, addition, hearing. specify the court must with sufficient 52(a)) underlying M. R. P. (pursuant grounds Civ. particularity ruling. hand, it is applying principles Before these case slight-but necessary to the Court has not: address our do what significant-misstatements Cole's rule Linn nevertheless waiver First, ordinary case, Virginia “[i]n we stated in Linn that City. summary judgment hearing to a parties right have a added). Similarly, Linn, hearing explicitly (emphases waived.” 8¶ City ordinary parties “in the case the Virginia again stated that hearing unless the right have a added) Linn, City, (citing Virginia (emphases waived.” explicitly 8). Yet, in Cole was that original our statement of the waiver rule specifically on a Rule 56 motion is “unless the to a briefs) (and by the failure to file either simply not waived under Rule adverse are entitled the movant *18 at 101 ordinary in the case.” added). not words, right, In other under (emphases Furthermore, particular and of hearing, which must be waived. hand, specifically, must be case at
significance necessarily explicitly. not is in the fact an significance The of this latter distinction narrower requiring as or may interpreted waiver rule be
“explicit” while fact, “explicit,” and point “specific” standard. In heightened has meaning, meaning. “Specific” are been close in not identical understood,” “clearly The New distinguished, defined as stated or English Language Encyclopedic Dictionary Lexicon Webster’s (deluxe ed., 1992), has been “explicit” Lexicon Publications while defined, left “clearly openly defined as and stated or not be understood,” Dictionary 333; Merriam Encyclopedic Webster’s see also (10th 1997) ed., Collegiate Dictionary Webster’s Merriam-Webster (“EXPLICIT implies that there plainness such verbal and distinctness difficulty in understanding.”). no need for inference and no room for Certainly, something “left may which is to be understood” nevertheless “clearly... Restated, something may “clearly become understood.” be understood,” Indeed, . . . not though “openly “implicit” it was stated.” has been not though defined as “understood stated.” Webster’s Thus, Encyclopedic Dictionary specific necessarily waiver is not norm). (though made explicitly explicit unquestionably waivers are the Rather, narrowly-defined there be which circumstances in party’s understood,” is “clearly though “openly waiver . . . it was not (the below). stated” being case hand one as example, discussed then, Perhaps, the most pertinent “specific” definition of context this ambiguity.” “free Collegiate Dictionary Merriam Webster’s 1128.1 Given both the distinction “specific” between and “explicit”
the fact City that our use of the latter term in and Virginia Linn in the of reciting law, context opposed established as in a engaging narrowing rule, reasoned of Cole’swaiver inappropriate it would be original to abide “specifically language. our “explicitly waived” The City, therefore, waived” rule in Linn and Virginia should be overruled.
It should not as merely equivalent be characterized of “specifically (see 34-35). (In waived,” today as the Court does I regard, note ¶¶ provides reasoning authority the Court no whatsoever for the foregoing “specific” “explicit” perceived Lest the between distinction be splitting dictionaries”-indeed, “explicit” a ‘battle some hairs or dictionaries list “specific,” see, Dictionary e.g., (Bryan as one definition of Black’s A. Garner Law ed., ed., (Michael ed., 2004); College Dictionary Agnes 8th West Webster’s New World 2002)-the ed., Wiley Publishing point 4th to be made here is this: should not We open many interpretations leave these two terms to as as there are dictionaries and judges Otherwise, proceed district court dictionary in this under state. one district could a which case a (in equates “specifically” “explicitly” which definition clearly under insufficient), openly waiver that is not stated would be while another could (in adopt encompasses “explicit” “implicit” “specific” definition which both though which case a that is not stated would be in certain waiver understood sufficient situations), leading nothing more than thus inconsistent results based happenstance. *19 “specifically” mean or
proposition “explicitly” and “establish” the thing jurisprudence.) same under our Cole hand, Turning undisputed now to the case at it is that the District summary granted holding
Court SVKVs motion for without undisputed the It also that the Court’s hearing a on motion. District dispense hearing supported by a not on or decision to with was based “clearly entitled,” determination a that SVKV was under the law and adduced, Rather, explained in summary judgment. facts to as the Harding’s reconsider denying post-judgment court’s order to request scheduling relied on orders hearing, for its two (one 24, 2002, 26, 2003), September other both of issued June summary judgment on a motion for “Hearing which stated follows: hearing request a for is submitted is deemed waived unless written (bold period filing within the time for the briefs on motion” omitted). request no for typeface hearing “[t]he Because Court received frame, during hearing this it “deemed” the party” from either time “waived.” Thus, the crux of the issue before us is whether hearing right summary judgment by a
“specifically waived” its to failing request period a for a within the time to submit written motion, as mandated the District filing the briefs on SVKVs words, Harding’s In inaction in Court’s orders. other does specific face waiver? of the court’s orders constitute Cole, language It disputed specific cannot be under right on inaction does constitute a waiver of the alone not Indeed, stated that must be a Rule 56 motion. we the mere “failure “specifically parties, waived” identified contrasting file as a of what does constitute a example briefs” (which given grant that the specific apropos, waiver responsive on to file in Cole was the Coles’ failure based 2). Cole, R. provided by M. U. D. C. period within the time
brief 414, 419, As the Court observes at ¶ Mont. at question of whether inaction however, did not address Cole the fails to specific constitutes a waiver where follow, do so. For the reasons which requirement
in the it face of I conclude that does. hearings on motions importance The with an hearings provide cannot be overstated. Such judge interact speak directly to and with opportunity of the upon judge’s arisen review any questions answer which have versions present more nuanced They also enable the briefs. briefs, contrast, arguments provide comparatively
of their whereas addition, presentations positions. of the parties’ respective sterile judgment “disposes because the of a motion for merits, prejudice,” action on added), (emphasis judgment hearing P.2d at 101 is the Thus, speak non-movant’s last chance to defense its case. as we permissible noted it is under Rule 56 for the district court to evidence, evidence, receive additional such as and oral affidavits day hearing. Cole, 101. It 236 Mont. at P.2d at is for *20 judgment these hearings, reasons that as to most opposed hearings, right. other are a of matter time, however, At holding parties the same our in Cole that have
¶80 “right” summary judgment hearing a to a unless it “specifically is a party preclude waived” was not intended as tool a which could a from a rendering court ever decision on a motion for summary judgment (by court, a get apple forcing second bite the the post- judgment, an summary judgment ruling). Thus, to revisit adverse if a district court of a inquire party directly were whether it will be requesting a Cole hearing, does not sanction the party’s postponing response its under indefinitely assumption the that interpret the court will a “yes” such silence as or in the hopes of obtaining advantage. Rather, circumstances, some tactical in such a party’s respond timely failure in manner inquiry the court’s specific hearing. must constitute a waiver its a principle respect This mandates same conclusion with to the
¶81 District scheduling parties Court’s orders. The informed that a hearing on a motion for is “deemed waived” “a request hearing unless written for is submitted within time for period filing party briefs on the motion.” a in Instructing manner request hearing that it must a time within reasonable frame materially not distinguishable-at least not for purposes honoring party’s hearing-from making specific inquiry entitlement to a hearing. as whether like a to respond it would Failure in specific either situation constitutes a waiver. Schwabe, Harding cites for the if a proposition ¶ district
court does not obtain both it “express” parties, waivers from must summary judgment hearing. premise, schedule a Based on this guard” us that was off “caught informs it District holding ruling hearing. Court’s on SVKV’s motion without first expected, it in explains “simply further accordance with 56(c) a matter course the prior rulings, Rule and this Court’s added). (emphasis be scheduled” would orders, Harding’s But Court’s District however, is, Harding’s As assumption reasonable. it would have been guard” only due to failure to read those being “caught off could be not entirety. More case law does importantly, orders in their our support Harding’s position. that, rule, sure, general an oral “[a]s To be we stated in Schwabe specifically it is
argument required added) Schwabe, (emphases (citing parties.” 8). 418-19, 101; Linn, say, P.2d at This not to unless it is however, that an oral must be scheduled But, foregoing to the extent that statement specifically waived. manner, an be in this does not constitute
Schwabe could read Rather, it is an holdings of our Cole. intentional modification that our holdings, of those the same sense imprecise summation City Virginia restatements of Cole’s waiver rule Linn waived”) were “specifically inaccurate (“explicitly place waived” in recitations of established law. Again, held that the are “entitled” to in Cole therefore, ordinary court, that a 56 in the case and district
under Rule
deny
argument, nor
requesting
preclude
or if the motion
(except
when made
in the unusual case
such
denied). Furthermore,
remain “entitled”
*21
Cole,
parties.”
...
right
specifically
until “the
is
418-19,
However,
party
a
is
simply
at
waiver utterance,” Collegiate Merriam Webster’s positive and direct and above, is one specific a waiver which Dictionary explained 409. As Dictionary Collegiate ambiguity,” Merriam Webster’s “free from quotation Incidentally, foregoing is an incorrect restatement from Schwabe Linn, right a we that the to the law forth in where stated set Schwabe, ¶55 waived, waived, Linn, argument hearing not that oral must be be must circumstances, achieved, narrowly-defined can be in certain which positive a “direct utterance.” without scheduling also that the District Comb’s orders asserts meaning within the of “otherwise” as that term is used in the
come may not, following passage from Cole: “a court rule or district otherwise, argument, deny preclude party requesting a from oral nor request opposing such a when made a the motion party summary judgment
motion for Mont. at denied.” added). (emphasis language, Harding Based on this scheduling right [its] maintains that the court’s orders “limited ato Yet, hearing.” merely hearing the court informed that a a motion for be a would deemed waived unless request hearing written for period was submitted within the time filing Certainly, briefs on the motion. this admonition neither from “preclude^]” party requesting argument nor a constitutes preemptive of such a request. “den[ial]” sum, therefore, I party’s conclude that a request failure to
summary judgment hearing filing “within the time period for the briefs on the motion” a specific right constitutes waiver of the party’s to such where clearly, unambiguously, has been timely informed requirement. of this Such are facts of the case hand, since apprised of the District Court’s waiver rule respect for summary judgment motions in the two orders, both of provided prior filing which were to SVEYs its motion summary judgment. Accordingly, Harding specifically waived its hearing by failing request one in the allotted time frame. outset, As noted conclusion, at the the Court reaches the same but entirely on an Specifically, different basis. the foundation of the analysis Court’s Issue manifestly under One is its incorrect statement “expressly approved” that Cole “expressly authorized” the trial practice court requiring parties request
hearing. First, very the Court assumes the conclusion it seeks to prove, asserting that distinguished acceptable “[i]n we trial court practice requiring parties an oral request argument or deterring precluding
from rule or making such added). course, request.” (emphasis provide Of can no Court pinpoint citation support proposition to Cole that the trial practice an oral requiring parties Indeed, “acceptable,” because never said in Cole. had so, single actually done then Issue One could be resolved with a *22 holding to that and there be no need for the Comb’s514 citation would (see 26-36). (The acknowledges Court pages belabored discussion ¶¶ again in did not as much with its observation 32 and in that we ¶ ¶ case presented in or its waiver issue in the progeny address Cole hand.) Cole, forcefully The then on to more that “in goes Court assert request expressly approved requirements for such
judgment hearings, long preclude so as courts do not or deter (emphasis added); (claiming also that the requests.” see 33¶ in the orders that a requirement District Court’s Cole). Where in Cole request “expressly a authorized” such “expressly approve[]” “expressly did we authorize^” Nowhere, which requirements? because those were not the facts with Rather, following pinpoint we were as the lack of citations presented. reflects, today’s genesis holding of this Court’s assertions
majority Opinion. The in 35 to “our same also true the Court’s reference hearings may require
statement in Colethat a court (also to “the summary judgment referring motions.” See also 32¶ apply require party [in . that a trial court Cole] .. statement hearing and, request, deem the absent such for waived”). We never made such a statement given court shocking and it be to see one there district would and, thus, requirement presented such a we were not imposed had (Indeed, synthesize from which to such statement. with facts discouraging requests district had a rule
judgment hearing.) fancy departure flight It that the for the Court’s appears point a 1964 the United States Court quotation
is our Cole of decision Opinion. 32 of the Court’s Appeals for the Ninth Circuit. See ¶¶ argument on a Rule we noted that in connection oral Specifically, held the Ninth Circuit had counterpart, 56 motion under federal as follows: 56(c), courts together, 78 and read authorize district
Rule[s] argument desiring on a provide by a rule that therefore, in the apply must deemed to have been of which oral will be absence involved, Bagby v. upheld, Such local rule was waived. [(8th 1952), F.2d 238]. States Cir.
United (alterations original, Mont. at 771 P.2d at omitted) v. Dredge Corporation (quoting internal marks quotation (9th 1964)). Penny, 461-62 Cir. 338 F.2d this passage Dredge Corporation actually To the extent *23 hand, noting to the at that
relevant issue is worth Montana’s Rules of do not Fed. P. which Civil Procedure include version of R. Civ. following
the Circuit cited the proposition: Ninth for business, expediting may [F]or the of a district court purpose provision by make rule or order for the submission and of hearing determination motions without oral brief upon written in support statements of reasons and opposition. 78).
Dredge Corporation, Thus, at (citing F.2d Fed. R. Civ. P. Dredge the foregoing whereas rested Corporation holding on three rules, of one which authorized district provision by courts “make rule or order for the submission and determination of motions without hearing,” Cole, contrast, oral by our decision in rested on M. R. Civ. P. alone, which such contains no authorization. any event, Cole, In in a remarkable embellishment of the Court foregoing quote
submits 31 that the from Dredge Corporation “express[] approv[al]” constitutes our of requirements parties request summary judgment Yet, fact, the hearings. aside from noted above, requirements that such not implicated by were even the facts Cole, entirely the Court’s inference is given unfounded the context quoted which we Dredge Corporation. Immediately preceding quotation, the stated we as follows: 56(c),
[U]nder Rule a hearing contemplated is from which the legal arguments, district court will consider so not much but rather whether there exists genuine issues of material fact.
Moreover,
permissible
it is
under Rule
the District Court to
day
receive affidavits on the
the hearing
and to take oral
evidence, as has been
above.
indicated
immediately
Dredge Corporation quotation, we held as follows: 56(c), the language having view of of Rule that mind disposes merits, of such a motion action not, prejudice, may by otherwise,
with a district court rule or preclude requesting argument, oral nor deny such a made by party opposing when the motion unless summary judgment motion for is denied. Even a party when argument, general entitled to proposition as a there be will general when may properly circumstances a court terminate oral right or even it and dispense deem the waived. hold, therefore, to a on a Rule right
We (and specifically 56 motion not parties waived briefs) the movant or the by the failure to file either simply to a under Rule 56 in adverse are entitled an case. There occasion when under law ordinary be adduced, entitled as a clearly the movant be so the facts would might a district court matter law a however, That, hearing. dispense necessity order with the kind to us here. presented of order (citation omitted). Thus, 418-19, P.2d at 101 Corporation, adopted notwithstanding language Dredge oí we “specifically” must that the be stringent requirement waived. support the Court in of its explanation The other offered only authorized” “expressly approved” “expressly
assertion that acknowledged in our waiver-by-inaction rule in Coleis fact hearing. for a applied could have discussion that either 417, 771 Cole, 236 Mont. at Opinion; See 31 of the Court’s *24 Yet, have just applied” “could because so or them do approved policy requiring that we does establish risk waiver. stated, analysis One on cracked Simply the Court’s ofIssue rests a district possibly have held in Cole that could not
foundation. We hearing or request require Thus, waiver, with such facts. Cole’s presented we were not risk since the District Court’s and authorization of “express” approval purported imaginings majority nothing here is but the orders in the case at hand. reasons, I from the Court’s flawed dissent For these earlier, However, as explained One. analysis under Issue
incomplete conclusion that agree I the Court’s ultimate in the by failing to one summary judgment hearing
right to within unambiguous requirement that do so face a clear and Court. frame the District provided time reasonable