DA 14-0523

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 150

SHANNON AMOUR,

 Plaintiff and Appellant,

 v.

COLLECTION PROFESSIONALS,

INCORPORATED, and NANCY SMITH

dba CHOICES FOR CHANGE COUNSELING,

 Defendants and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Mineral, Cause No. DV 12-24

Honorable Karen Townsend, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Terry A. Wallace, Attorney at Law, Missoula, Montana

For Appellees:

Matthew L. Erekson, Collection Professionals, Inc., Missoula, Montana

Elizabeth W. Lund, Moore, O’Connell & Refling, P.C., Bozeman, 

Montana (for Nancy Smith, dba Choices for Change Counseling)

Submitted on Briefs: April 8, 2015

 Decided: June 2, 2015

Filed:

__________________________________________

Clerk

June 2 2015

Case Number: DA 14-0523
2

Justice Beth Baker delivered the Opinion of the Court. 

¶1 Shannon Amour sued Collection Professionals, Inc. (CPI) and Nancy Smith after 

CPI sought to collect Amour’s bill for Smith’s services as guardian ad litem (GAL) 

during Amour’s marriage dissolution proceedings. The Fourth Judicial District Court, 

Mineral County, entered summary judgment in favor of CPI and Smith. Amour appeals. 

The dispositive issues on appeal are:

1. Whether the District Court correctly awarded summary judgment to CPI on 

Amour’s Fair Debt Collection Practices Act claim because CPI was not 

attempting to collect a debt regulated by that statute.

2. Whether the District Court correctly awarded summary judgment to Smith.

3. Whether the District Court correctly awarded CPI $7,408.70 in damages plus 

interest.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In 2007, Amour filed for dissolution of her marriage. On January 24, 2008, the 

court handling the action entered an order naming Smith as GAL for Amour’s children 

during the pendency of the dissolution proceedings. The order specified Smith’s duties, 

granted Smith judicial immunity, and specified that the gross marital estate was 

responsible for paying Smith for her work.

¶4 On February 4, 2008, Amour entered a contract with Smith specifying that Smith 

would be paid $90 per hour for her work, plus expenses. Smith billed Amour half the 

account and billed Amour’s ex-husband the other half. Amour paid some of the bills but 

stopped paying in May 2010. In November 2011, Smith assigned $6,975.60 in unpaid 
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bills to CPI, which then notified Amour that she owed $7,511.74, including interest. On

January 20, 2012, the dissolution court entered an order stating that the “individual debts 

to the GAL are solely the responsibility of the individuals and are not a debt of the 

marital estate,” and that the “Parties’ individual debts including . . . their individual debt 

to the GAL are the responsibility of each party individually.”

¶5 In March 2012, CPI filed a complaint in justice court to collect the debt. Amour 

filed a counterclaim exceeding the justice court’s jurisdictional limit and the case was 

dismissed. Amour then filed a complaint in the District Court alleging that CPI violated 

the Fair Debt Collection Practices Act (FDCPA) through attempting to collect a false 

debt; that Smith committed defamation by falsely publishing to third parties that Amour 

owed a debt; and that Smith violated the Montana Consumer Protection Act through her 

actions. CPI counterclaimed for the amount owed for Smith’s services under theories of

breach of contract and breach of a court order. Later that year, CPI and Smith filed 

motions for summary judgment. 

¶6 In November 2013, the District Court awarded Smith summary judgment in full 

and CPI summary judgment in part, reserving the issue of the amount of damages due to 

CPI for Amour’s failure to pay her account. In July 2014, the District Court entered 

judgment in favor of CPI in the amount of $7,408.70 in principal plus interest from the 

date of Smith’s assignment of the account to CPI. Amour appeals the District Court’s 

entries of summary judgment in favor of CPI and Smith. 
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STANDARD OF REVIEW

¶7 We review summary judgment orders de novo. Albert v. City of Billings, 2012 

MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the 

moving party demonstrates an absence of a genuine issue of material fact and entitlement 

to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Albert, ¶ 15. After the moving 

party meets its initial burden to show the absence of a genuine issue of fact and 

entitlement to judgment, the burden shifts to the party opposing summary judgment either 

to show a triable issue or to show why the undisputed facts do not entitle the moving 

party to judgment. Phelps v. Frampton, 2007 MT 263, ¶ 16, 339 Mont. 300, 170 P.3d 

474.

DISCUSSION

¶8 1. Whether the District Court correctly awarded summary judgment to CPI on 

Amour’s FDCPA claim because CPI was not attempting to collect a debt regulated by 

that statute.

¶9 The FDCPA regulates the collection of debts, but only the collection of those 

debts that fall under the terms of the statute. Hawthorne v. Mac Adjustment, 140 F.3d 

1367, 1371 (11th Cir. 1998) (“By the plain terms of the statute, not all obligations to pay 

are considered ‘debts’ subject to the FDCPA.”). The FDCPA defines “debt” as “[A]ny 

obligation or alleged obligation of a consumer to pay money arising out of a transaction 

in which the money, property, insurance, or services, which are the subject of the 

transaction, are primarily for personal, family, or household purposes, whether or not 

such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). A “transaction” 
5

under the FDCPA must be a consensual arrangement. Hawthorne, 140 F.3d at 1371. 

Thus, “[w]hen determining whether an obligation is a ‘debt’ under the statute, courts 

focus on whether it arose from a consensual consumer transaction for goods or services.” 

Omran v. Beach Forest Subdivision Ass’n, Inc., No. 12-10116, 2012 U.S. Dist. LEXIS 

66277, at *7 (E.D. Mich.) (concluding that fines for breaking subdivision deed 

restrictions are not debts under the FDCPA); see Gulley v. Markoff & Krasny, 664 F.3d 

1073, 1075 (7th Cir. 2011) (per curium) (concluding that the FDCPA does not apply to 

efforts to collect city real estate fines); Hicken v. Arnold, Anderson & Dove, P.L.L.P., 137 

F. Supp. 2d 1141, 1143 (D. Minn. 2001) (concluding that a debt arising out of a marital 

settlement agreement does not fall within the FDCPA).

¶10 CPI asserts, and the District Court concluded, that Amour’s debt to Smith did not 

arise out of a consensual transaction. Amour contests this conclusion, arguing that her 

debt to Smith arose out of the contract that Amour and Smith entered into in February 

2008 specifying the amount that Amour would pay Smith for her services. Amour fails 

to recognize, however, that the February 2008 contract followed the dissolution court’s 

January 2008 order appointing Smith as GAL and directing that the marital estate would 

be responsible for paying Smith for her services. In its January 2012 order, the court then 

assigned half that debt to Amour personally. With or without the contract between 

Amour and Smith, Amour still would have been under court order for Smith’s services. 

Indeed, in response to a request for admission, Amour stated that her contract with Smith 

was “a document I was ordered to sign” by the dissolution court. Amour also stated in 
6

her complaint that the dissolution court ordered Smith appointed as GAL, and that Amour 

“did not want the services of Smith and did not request them.” Under these 

circumstances, it is clear that Amour’s debt to Smith did not arise out of a consensual 

transaction and therefore that the FDCPA does not apply.

¶11 Amour also argues that CPI effectively admitted that the FDCPA regulates its debt 

collection efforts by sending Amour a letter referring to Amour’s account as a “debt.” 

But the question is not whether Amour was indebted to Smith; the question is whether the 

debt is the type of debt that the FDCPA regulates. It is not, because the debt did not arise 

out of a consensual transaction.

¶12 The District Court correctly awarded CPI summary judgment on Amour’s FDCPA 

claim.

¶13 2. Whether the District Court correctly awarded summary judgment to Smith.

¶14 The District Court granted summary judgment to Smith on Amour’s state law

claims on two grounds. First, the court determined that Amour failed to raise a genuine 

issue of material fact about those claims, and that, in the absence of such a dispute, Smith 

was entitled to judgment. Second, the court determined that Smith was due quasi-judicial 

immunity for her actions as GAL. Amour contests both of these determinations.

¶15 Amour alleged two claims against Smith: defamation and violation of the Montana 

Consumer Protection Act. The District Court held that, as a court-appointed GAL, Smith 

was entitled to absolute quasi-judicial immunity under § 2-9-112(2), MCA. That section 

provides in pertinent part that an “agent of the judiciary is immune from suit for damages 
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arising from the lawful discharge of an official duty associated with judicial actions of the 

court.” We have extended immunity to participants in the judicial process when they are 

acting in a quasi-judicial capacity. Steele v. McGregor, 1998 MT 85, ¶¶ 25-30, 288 

Mont. 238, 956 P.2d 1364. 

Like judicial immunity, quasi-judicial immunity benefits the public—not 

the person being sued—by ensuring that quasi-judicial officers exercise 

their functions unfettered by fear of legal consequences; also like judicial 

immunity, quasi-judicial immunity extends only to acts within the scope of 

the actor’s jurisdiction and with the authorization of law.

Steele, ¶ 26. Though we have not addressed the application of quasi-judicial immunity to 

a GAL, other courts have determined that GALs are entitled to absolute quasi-judicial 

immunity. See Surprenant v. Mulcrone, 44 A.3d 465, 468 (N.H. 2012) (“Absolute 

judicial immunity attaches when a GAL performs certain delegated duties because of the 

intimate relationship between the GAL and the court in the judicial process.”) (quoting

Marr v. Me. Dept. of Human Servs., 215 F. Supp. 2d 261, 268 (D. Me. 2002)). Courts 

recognize that judicial immunity protects against harassment by disgruntled parents and 

ensures the GAL’s independence. See Carrubba v. Moskowitz, 877 A.2d 773, 784

(Conn. 2005). “A guardian must be free, in furtherance of the goal for which the 

appointment was made, to engage in a vigorous and autonomous representation of the 

child.” Tindell v. Rogosheske, 428 N.W.2d 386, 387 (Minn. 1988). 

¶16 The District Court’s January 24, 2008 order appointing Smith as GAL explicitly 

stated that she was an “agent” of the court “and as such is granted judicial immunity.” 

The statute authorizing appointment of a GAL in a parenting proceeding makes clear that 
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the GAL is an officer of the court, tasked with conducting investigations, making reports 

and recommendations to the court, and performing other duties as the court directs. 

Section 40-4-205, MCA. Amour argues that Smith did not act as an agent of the court 

when she sent Amour a bill and sought to enforce collection. But the law requires the 

court to “enter an order for costs and fees in favor of the child’s guardian ad litem,” and 

directs the order to be made “against either or both parents.” Section 40-4-205(4), MCA. 

Judicial immunity extends to the GAL’s “performance of duties which are within the 

scope of such guardian’s authority.” Billups v. Scott, 571 N.W.2d 603, 607 (Neb. 1997). 

Smith’s attempt to enforce collection of payment from Amour was within the scope of 

her authority as GAL. We agree with the District Court that she is protected by 

quasi-judicial immunity under § 2-9-112(2), MCA, from Amour’s Montana Consumer 

Protection Act claim.

¶17 Under the circumstances of this case, we find it unnecessary to analyze whether 

judicial immunity would protect Smith from suit for Amour’s defamation claim, which 

alleges an intentional tort. Truth is a complete defense against a defamation claim. 

Citizens First Nat’l Bank of Wolf Point v. Moe Motor Co., 248 Mont. 495, 501, 813 P.2d 

400, 404 (1991). Smith attached detailed billing statements with her motion for summary 

judgment. She also attached an affidavit attesting to the accuracy of those statements, to 

the duties she performed as GAL, and to the fact that Amour never disputed Smith’s 

services or disputed that she was required to pay for those services until the current 

litigation. Through this evidence, Smith met her “initial burden” of establishing the 
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absence of any genuine issue of material fact and entitlement to judgment as a matter of 

law. Phelps, ¶ 16. 

¶18 The burden accordingly shifted to Amour to respond with evidence showing a 

triable issue on her defamation claim. Phelps, ¶ 16. Amour responded with interrogatory 

responses that explained the basis for her claim that Smith misstated Amour’s debt and 

acted unfairly and deceptively. But these interrogatory responses were not signed. M. R. 

Civ. P. 33(b)(5) requires that interrogatory responses be signed. “[A] party opposing a 

motion for summary judgment may not rest upon his pleadings but has an affirmative 

duty to bring forth sworn testimony or affidavits [that] show a genuine issue.” Wright v. 

State, 231 Mont. 324, 327, 752 P.2d 748, 750 (1988) (emphasis added). We require 

“strict compliance” with M. R. Civ. P. 56’s evidentiary requirements. Smith v. 

Burlington N. & Santa Fe. Ry. Co., 2008 MT 225, ¶ 41, 344 Mont. 278, 187 P.3d 639. 

Courts do not consider unsworn or unsigned evidence at the summary judgment stage. 

See Alfson v. Allstate Prop. & Cas. Ins. Co., 2013 MT 326, ¶¶ 11-13, 372 Mont. 363, 313 

P.3d 107; Silver v. Foster Wheeler LLC, No. 2:11-CV-64218-ER, 2012 U.S. Dist. LEXIS 

29076, at *9-10 (E.D. Pa. Jan. 25, 2012); Overton v. City of Harvey, 29 F. Supp. 2d 894, 

901 (N.D. Ill. 1998). There was no evidence in the record that the District Court 

appropriately could consider that raised a triable issue on Amour’s defamation claim. 

The District Court therefore acted correctly in concluding that Smith was entitled to 

judgment.
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¶19 On appeal, Amour admits that her interrogatory responses were not signed, but 

argues that she corrected that mistake by later submitting signed versions of those 

responses. By that time, however, the District Court already had granted Smith summary 

judgment. A court “need not consider untimely filed documents in proceedings for 

summary judgment.” Wright, 231 Mont. at 327, 752 P.2d at 750. Further, Amour 

challenged the performance of Smith’s duties as GAL for the first time after being sued 

for collection of the debt. The proper time to raise those challenges was in the underlying 

dissolution proceedings. Amour failed to present substantial evidence essential to her 

claims. See Smith, ¶ 55.

¶20 The District Court correctly awarded summary judgment to Smith.

¶21 3. Whether the District Court correctly awarded CPI $7,408.70 in damages plus 

interest.

¶22 In its November 2013 summary judgment order, the District Court, mindful that 

CPI and Smith had provided several different figures for the amount of debt that Amour 

owed, reserved the issue of the amount of damages due to CPI. A few months later, CPI 

moved for summary judgment on the amount of damages, attaching an affidavit from 

Smith stating that the amount owed was $7,408.70, and including billing statements 

accounting for that figure. The District Court then entered judgment in CPI’s favor in 

that number, plus interest, and appropriate costs.

¶23 On appeal, Amour argues that the District Court improperly resolved a factual 

dispute by determining that Amour owed $7,408.70 in principal. We disagree. CPI met 

its initial burden by submitting Smith’s affidavit and billing statements showing that 
11

$7,408.70 was due. The burden then shifted to Amour to identify evidence calling into 

question the accuracy of the amount billed. Amour instead submitted interrogatory 

responses that baldly alleged that Smith ran up charges without providing evidence to 

support that allegation. Additionally, the interrogatory responses attacked the 

competency with which Smith performed her actions as GAL, but Amour did not provide 

evidence that Smith did not in fact perform the actions that accounted for the debt of 

$7,408.70.

¶24 Amour also appeals the District Court’s award of interest on the principal amount. 

However, § 27-1-211, MCA, states:

Each person who is entitled to recover damages certain or capable of being 

made certain by calculation and the right to recover that is vested in the 

person upon a particular day is entitled also to recover interest on the 

damages from that day except during the time that the debtor is prevented 

by law or by the act of the creditor from the debt.

Section 27-1-211, MCA, has three requirements: (1) an underlying monetary obligation, 

(2) an amount of recovery that is certain or capable of being made certain by calculation, 

and (3) a right to recover that vests on a particular day. LHC, Inc. v. Alvarez, 2007 MT 

123, ¶ 29, 337 Mont. 294, 160 P.3d 502. All three requirements are met in this case. The 

District Court determined that there is an underlying monetary obligation, and that the 

right to recover vested in CPI after Smith assigned her account to CPI in November 2011. 

All of the billed-for actions occurred before November 2011. Amour disputes the 

amount that CPI should recover, but “‘the fact that a claim is disputed does not make it 

uncertain,’ as long as the damage amount is reduced to certainty on a particular day.” 
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LHC, ¶ 29 (quoting Safeco Ins. Co v. Lovely Agency, 215 Mont. 420, 425, 697 P.3d 1354, 

1357 (1985)).

CONCLUSION

¶25 The District Court’s November 2013 summary judgment order and July 2014 

judgment in favor of CPI are affirmed.

/S/ BETH BAKER

We concur: 

/S/ MIKE McGRATH

/S/ JIM RICE

/S/ LAURIE McKINNON

/S/ PATRICIA COTTER