No 

No. 98-142

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 15N

FLATHEAD COUNTY,

Plaintiff and Respondent,

v.

SURE SEAL DUST CONTROL and

ANTHONY J. SERIO d/b/a 

SURE SEAL DUST CONTROL,

Defendants and Appellants.

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APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Katherine Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Ward E. Taleff and Karl K. Rudbach; Alexander, Baucus, Taleff & 

Paul, Great Falls, Montana

For Respondent:

Dennis E. Hester, Deputy Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: August 6, 1998

Decided: January 28, 1999

Filed:

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__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. Flathead County filed a complaint against Sure Seal Dust Control and Anthony 

Serio, doing business as Sure Seal Dust Control (collectively, Sure Seal), a dust 

suppressant business, for dumping or leaving a "solid waste" on its property on five 

separate occasions in violation of § 75-10-212, MCA. The Eleventh Judicial District 

Court, Flathead County, ultimately granted Flathead County's motion for summary 

judgment and imposed a $5,000 civil penalty for each of the five violations. Sure Seal 

appeals and we affirm.

¶3. The overall issue on appeal is whether the District Court erred in granting 

summary judgment to Flathead County. In resolving that issue, we address the 

following restated issues:

¶4. 1. Whether the District Court erred in concluding that no genuine issue of 

material fact exists that the residue at issue is a "solid waste" as defined in § 75-10-

203(11), MCA.

¶5. 2. Whether the District Court erred in concluding that no genuine issue of 

material fact exists that Sure Seal dumped or left the residue on Flathead County's 

Sheepherder Gravel Pit property on three occasions. 

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¶6. 3. Whether Flathead County violated Sure Seal's due process rights by revoking 

its permit without notice and a hearing.

¶7. 4. Whether the District Court erred by imposing a $5,000 penalty for each of the 

five violations.

BACKGROUND

¶8. At all times pertinent to this case, Sure Seal was a dust suppression business in 

Flathead County, Montana. It also contracted with two lumber companies to dispose 

of a wood byproduct called veneer dryer precipitator residue (residue). Prior to mid1994, Sure Seal operated under a dust abatement permit which allowed it to apply 

approved dust abatement on Flathead County roads. One of the materials Sure Seal 

used was the residue; its employee, Jesse Serio, applied the residue to gravel roads as 

a dust suppressant. In June of 1994, Sure Seal's dust abatement permit expired and 

was not renewed. Sure Seal continued to apply the residue on Flathead County roads 

and other property without a permit.

¶9. Flathead County subsequently sued Sure Seal, alleging that Sure Seal disposed of 

the residue, which constituted a "solid waste" under § 75-10-203(11), MCA, on its 

property on five different occasions in violation of § 75-10-212, MCA. Two of the 

violations allegedly occurred on county roads; the other three allegedly occurred at 

Flathead County's Sheepherder Gravel Pit (the gravel pit). Flathead County sought 

the assessment of a $5,000 civil penalty for each violation and requested that Sure 

Seal be enjoined from disposing of solid waste in a manner contrary to that 

permitted by Title 75, Chapter 10, Part 2, MCA, the Montana Solid Waste 

Management Act. 

¶10. The District Court permitted Sure Seal's counsel to withdraw and Sure Seal 

proceeded pro se. Discovery ensued. Thereafter, Flathead County moved for 

summary judgment and Sure Seal filed a brief in opposition to the motion. The 

District Court determined that Flathead County established the absence of any 

genuine issue of material fact regarding Sure Seal's violations of § 75-10-212, MCA, 

noting that Sure Seal had failed to come forward with any admissible evidence 

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raising a genuine factual issue. On that basis, the District Court concluded that Sure 

Seal violated § 75-10-212, MCA, on five occasions and that Flathead County was 

entitled to summary judgment and to the imposition of a $5,000 civil penalty for each 

of the violations. Sure Seal appeals. 

STANDARD OF REVIEW¶11. Summary judgment is proper when the pleadings, depositions, answers 

to interrogatories, admissions, and any affidavits on file show that there is no genuine issue of material fact 

and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a 

district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by 

that court. Clover Leaf Dairy v. State (1997), 285 Mont. 380, 385, 948 P.2d 1164, 1167 (citation omitted). 

¶12. The party moving for summary judgment must show a complete absence of any 

genuine issues of fact deemed material in light of the substantive principles which 

entitle that party to judgment as a matter of law. Bruner v. Yellowstone County 

(1995), 272 Mont. 261, 265, 900 P.2d 901, 904 (citation omitted). Once the moving 

party's burden has been met, the burden shifts to the nonmoving party to prove, by 

more than mere denial and speculation, that a genuine issue does exist. Bruner, 272 

Mont. at 264, 900 P.2d at 903 (citation omitted). We review a district court's 

conclusions of law, including those regarding the application of a statute, to 

determine whether the court's interpretation of the law is correct. Ash Grove 

Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 89 (citation 

omitted); Clover Leaf, 285 Mont. at 389, 948 P.2d at 1169 (citation omitted).

DISCUSSION¶13. Before addressing the issues properly before us, we observe that Sure Seal raises the 

following three issues on appeal which were not raised in the District Court: 1) that Flathead County violated 

Jesse Serio's Fifth Amendment rights when it took his deposition; 2) that Sure Seal is a corporation and 

Anthony Serio cannot be held personally liable for the civil penalties; and 3) that Sure Seal is not liable for 

the residue allegedly disposed of at the gravel pit because the residue was cleaned up. Conceding that these 

issues are raised for the first time on appeal, Sure Seal requests that we apply the common law plain error 

doctrine and resolve these newly raised issues. We decline to do so. 

¶14. It is well settled that this Court will not consider issues raised for the first time 

on appeal. Cenex v. Board of Com'rs for Yellowstone (1997), 283 Mont. 330, 337-38, 

941 P.2d 964, 968 (citation omitted). Moreover, while Sure Seal correctly relies on 

State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033, for the proposition that we may 

review issues not raised in the district court under the common law plain error 

doctrine, the doctrine is of limited application and is to be used sparingly. Sullivan, 

280 Mont. at 31, 927 P.2d at 1037 (citation omitted). Sure Seal also relies on State v. 

Finley (1996), 276 Mont. 126, 915 P.2d 208. There, however, we concluded 

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that this Court may discretionarily review claimed errors that implicate a criminal 

defendant's fundamental constitutional rights, . . . where failing to review the claimed 

error at issue may result in a manifest miscarriage of justice, may leave unsettled the 

question of the fundamental fairness of the trial or proceedings, or may compromise the 

integrity of the judicial process.

Finley, 276 Mont. at 137, 915 P.2d at 215 (emphasis added). As enunciated in Finley, the doctrine clearly is 

inapplicable here because the present case does not meet the threshold criterion that the claimed errors 

implicate a criminal defendant's fundamental constitutional rights. 

¶15. For similar reasons, Sure Seal's reliance on State v. Poncelot (1980), 187 Mont. 

528, 610 P.2d 698, for the proposition that we are more inclined to apply the plain 

error doctrine where the defendant appeared pro se is misplaced. Poncelot, Sullivan

and Finley were all criminal cases; the present case is not.

¶16. Sure Seal cites to no authority under which the common law plain error 

doctrine would be applicable here. As a result, we decline to address the new issues 

Sure Seal raises on appeal.

¶17. 1. Did the District Court err in concluding that no genuine issue of material fact exists that the 

residue at issue is a "solid waste" as defined by § 75-10-203(11), MCA?

¶18. The District Court concluded that Flathead County met its burden of 

establishing the absence of any genuine issue of material fact regarding Sure Seal's 

violation of § 75-10-212, MCA, because the residue dumped or left was a "wood 

byproduct" and, therefore, a "solid waste" as defined in § 75-10-203(11)(a), MCA. 

The District Court also concluded that Sure Seal failed to come forward with 

admissible evidence raising a genuine issue of material fact in that regard. On 

appeal, Sure Seal contends that the District Court erred in concluding that no 

genuine issue of material fact exists that the residue is a "solid waste" because the 

residue is a "marketable byproduct" which is expressly excluded from the definition 

of a "solid waste."

¶19. In order for Flathead County to succeed on summary judgment, it was required 

to establish the complete absence of any genuine issue of fact deemed material in 

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light of the elements needed to establish a violation of § 75-10-212, MCA. See Bruner, 

272 Mont. at 265, 900 P.2d at 904 (citation omitted). Section 75-10-212, MCA, 

provides in pertinent part:

(1) No person may dispose of solid waste except as permitted under this part.

(2) It shall be unlawful to dump or leave any garbage, dead animal, or other debris or 

refuse:

(a) in or upon any highway, road, street, or alley of this state; 

(b) in or upon any public property, highway, street, or alley under the control of the state 

of Montana or any political subdivision thereof or any officer or agent or department 

thereof[.]

The term "solid waste" is defined in § 75-10-203(11)(a), MCA, as "all putrescible and 

nonputrescible wastes . . . and wood products or wood byproducts and inert materials." 

Flathead County presented evidence establishing that the residue is a "wood byproduct" 

and, indeed, Sure Seal does not dispute that the residue is a solid waste pursuant to § 75-

10-203(11)(a), MCA. Thus, Flathead County met its initial burden of establishing that no 

genuine issue of material fact existed with regard to the residue being a solid waste. 

¶20. The burden then shifted to Sure Seal to come forward with evidence, not mere 

denial or speculation, that a genuine issue of fact exists. See Bruner, 272 Mont. at 264, 

900 P.2d at 903 (citation omitted). In an attempt to meet this burden, Sure Seal 

asserted that the residue was a marketable byproduct excluded from the definition of 

solid waste by § 75-10-203(11)(b), MCA, which provides that solid waste "does not 

mean municipal sewage, industrial wastewater effluents . . . or marketable 

byproducts." It attached certain materials to its brief which were intended to 

support the marketable byproduct claim and raise a genuine issue of fact regarding 

whether the residue was a solid waste. The District Court determined that the 

attached materials were not admissible evidence and, on that basis, concluded that no 

genuine issue of material fact existed regarding the residue being a solid waste.

¶21. On appeal, Sure Seal does not contend that the District Court abused its 

discretion in determining that the materials submitted in opposition to Flathead 

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County's motion for summary judgment were inadmissible or otherwise attempt to 

rely on those materials. Instead, it refers for the first time to Jesse Serio's deposition 

in attempting to show that Sure Seal had clients purchasing applications of the 

residue and, on that basis, to raise a genuine issue of material fact that the residue is 

a marketable byproduct under § 75-10-203(11)(b), MCA, rather than a solid waste 

under § 75-10-203(11)(a), MCA. 

¶22. The problem with this approach is that, while Jesse Serio's deposition was part 

of the record in the District Court, Sure Seal did not rely on it as evidence raising a 

genuine issue of material fact, notwithstanding the opportunity to do so. Once the 

party moving for summary judgment has met its initial burden, the nonmoving 

party's response "must set forth specific facts showing that there is a genuine issue 

for trial." Rule 56(e), M.R.Civ.P. Sure Seal failed to meet its burden in the District 

Court and may not attempt to meet it on appeal by coming forward with evidence 

presented for the first time. We hold that the District Court did not err in 

determining that no genuine issue existed that the residue was a solid waste under § 

75-10-203(11), MCA.

¶23. 2. Did the District Court err in concluding that no genuine issue of material fact exists that Serio 

dumped or left the residue on Flathead County's gravel pit property on three occasions?

¶24. The District Court also concluded that no genuine issue of material fact existed 

regarding Sure Seal's disposal of the residue on Flathead County's property on five 

separate occasions, two involving county roads and three involving the gravel pit. 

Sure Seal contends that Flathead County did not establish the absence of any genuine 

issue of material fact that it disposed of the residue at the gravel pit on three 

occasions.

¶25. At the time of the violations, Sure Seal owned property adjoining Flathead 

County's property at the gravel pit. A road ran through Sure Seal's property to 

Flathead County's gravel pit property. 

¶26. Sure Seal raises a "boundary confusion" issue on appeal regarding whether the 

residue was spread on its property or Flathead County's gravel pit property. This 

issue was not raised in the District Court and, as discussed above, we will not 

consider issues raised for the first time on appeal. See Cenex, 283 Mont. at 337-38, 

941 P.2d at 968 (citation omitted). As it did above, Sure Seal again requests that we 

apply the common law plain error doctrine to resolve this issue. For the reasons 

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previously discussed, we decline to do so. 

¶27. Sure Seal also contends that Flathead County did not meet its burden of 

showing that no genuine issue of material fact existed that the residue was dumped or 

spread on the gravel pit property. We disagree. 

¶28. In support of its motion for summary judgment, Flathead County relied on the 

affidavits of Vicki Gallo, a Chief Deputy of the Flathead County Clerk and Recorder, 

and Marc Pitman, the Flathead County Road Department Superintendent at the 

time of the violations, as well as the deposition of Jesse Serio. Vicki Gallo's affidavit 

established that Flathead County owned the gravel pit. Marc Pitman's affidavit 

established that the residue was dumped in the gravel pit on January 18, and 

January 20, 1995, and at some unknown date and time in the winter of 1994-95; it 

did not state that Marc Pitman observed Sure Seal dumping the residue.

¶29. Sure Seal contends that Flathead County did not meet its burden because Vicki 

Gallo's affidavit did not state where the boundary was between Sure Seal's property 

and Flathead County's gavel pit property or if Flathead County owned the road 

running through Sure Seal's property. Jesse Serio's deposition confirmed, however, 

that he had applied or spread the residue in the gravel pit and that he knew he was 

spreading it on Flathead County's property.

¶30. Serio also contends that Flathead County did not meet its burden because Marc 

Pitman's affidavit did not indicate whose property the residue was dumped on or 

who dumped the residue in the gravel pit. It was not necessary that the affidavit 

establish these facts. Marc Pitman's affidavit established that the residue was 

dumped in the gravel pit, Vicki Gallo's affidavit established that Flathead County 

owned the gravel pit and Jesse Serio's deposition confirmed that he had applied or 

spread the residue in the gravel pit and knew he was spreading it on Flathead 

County's property at the gravel pit. On this record, Flathead County met its initial 

burden of establishing the absence of any genuine issue of material fact that Sure 

Seal disposed of the residue at Flathead County's gravel pit property.

¶31. Sure Seal also contended initially that Flathead County failed to show the 

absence of any genuine issue of material fact regarding dumping of the residue in the 

gravel pit on each of the three particular dates set forth in the amended complaint. In 

its reply brief, however, Sure Seal acknowledged that Jesse Serio admitted to 

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spreading the residue in the gravel pit on January 20, 1995. As a result, Sure Seal 

concedes that no genuine issue of material fact exists regarding the January 20, 1995, 

date and we will not address it further. 

¶32. Sure Seal disputes the January 18, 1995, violation contending that, while Jesse 

Serio admitted in his deposition to spreading the residue in the gravel pit on either 

January 18 or January 19, 1995, he did not specifically mention whether the residue 

was spread on Flathead County's property. Jesse Serio subsequently admitted at a 

later point in his deposition that he knew the residue was being spread on Flathead 

County's property, however. Thus, Sure Seal's contention lacks merit. 

¶33. Sure Seal also disputes the violation alleged to have occurred at some unknown 

date and time in the winter of 1994-95. It contends that, while Jesse Serio admitted in 

his deposition that he spread the residue in the gravel pit "three or four times," he 

did not indicate whether he did so during the winter of 1994-95 or at some earlier 

time. Again, Sure Seal's contention lacks merit because the questions and answers 

prior to Jesse Serio's admission focused on the winter of 1994-95 and Jesse Serio's 

statement that he spread the residue in the gravel pit "three or four times" clearly 

referred to the winter of 1994-95. On this record, therefore, Flathead County met its 

initial burden of establishing the absence of any genuine issue of material fact that 

Sure Seal disposed of the residue at the gravel pit property on the three occasions set 

forth in the amended complaint. 

¶34. The burden then shifted to Sure Seal to prove, by more than mere denial or 

speculation, that a genuine issue of material fact existed. See Bruner, 272 Mont. at 

264, 900 P.2d at 903 (citation omitted). In other words, Sure Seal was required to 

come forward with admissible evidence--such as pleadings, depositions, answers to 

interrogatories, admissions on file, or affidavits--raising a genuine issue for trial. See

Rules 56(c) and (e), M.R.Civ.P. 

¶35. Sure Seal's brief in opposition to Flathead County's motion for summary 

judgment merely asserted that Sure Seal never dumped the residue at the gravel pit. 

An argument in a brief is not evidence and Sure Seal did not come forward with any 

admissible evidence raising a genuine issue for trial. We conclude, therefore, that the 

District Court did not err in determining that no genuine issue of material fact 

existed regarding whether Sure Seal dumped or left the residue at the gravel pit on 

three occasions.

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¶36. 3. Did Flathead County violate Sure Seal's due process rights by revoking its permit without notice 

and a hearing?

¶37. In the District Court, Sure Seal contended, in effect, that Flathead County 

violated its right to due process by revoking its dust abatement permit without a 

hearing before the Board of Commissioners of Flathead County. The premise 

underlying this contention was that Flathead County was required to take any 

problems with the application of dust suppression materials to the county 

commissioners before Sure Seal's permit could be revoked. The District Court 

observed that Sure Seal provided no authority in support of its position and did not 

address the issue further.

¶38. On appeal, Sure Seal reasserts the contention raised in the District Court and 

cites to cases which purportedly support its due process argument. We decline to 

address those authorities or the due process argument.

¶39. Parties must support their positions in the district court in order to obtain a 

ruling on the merits. Clearly, it is not the trial court's role to research and develop 

those positions for a party. Nor will we substantively address an issue on appeal 

which was not properly supported in the trial court. 

¶40. 4. Did the District Court err by imposing a $5,000 penalty for each of the five violations?

¶41. In granting summary judgment to Flathead County, the District Court 

determined that Flathead County was entitled to the relief requested, namely, the 

assessment of a $5,000 civil penalty for each of Sure Seal's five violations of § 75-10-

212, MCA. On appeal, Sure Seal contends that the District Court committed legal 

error because $5,000 is the maximum penalty allowed under § 75-10-233, MCA, for 

aggregated violations. Alternatively, it argues that the court abused its discretion in 

assessing the maximum available penalty for each violation. 

¶42. Flathead County's motion for summary judgment specifically addressed the 

statutory civil penalty and provided the rationale for assessing the maximum penalty 

for each violation. Sure Seal's response did not mention the penalty. Thus, Sure Seal 

raises this issue for the first time on appeal and, as set forth above, this Court will not 

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consider issues raised for the first time on appeal. See Cenex, 283 Mont. at 337-38, 

941 P.2d at 968 (citation omitted). The issue not being properly before us, we decline 

to address it further. 

¶43. Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

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