No. 82-433 INTIIE SUPREME COURT OF THE STATE OF MONTANA 1983

ELMO DREYER, etal., Applicants andAppellants,

THE BOARD OF TRUSTEES OFMID-RIVERS TELEPHONE COOPERATIVE, INC., etal., Respondents.

Appeal from: District Court of the Seventh JudicialDistrict, In and for the County of J-TcCone, The Honorable A. B. Martin, Judge presiding.

Counsel of Record: For Appellants: Moses Law Firm; StephenMoses, Billings, Montana For Respondents: Church, Harris, Johnson & Williams; Kenneth I. Jarvi, Great Falls, Montana

- Submitted on Briefs: January 27, 1983 Decided: May 12, 1983

Filed: 

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ClerkMr. JusticeFred J. Weber delivered theOpinion of theCourt.

This is an appeal of a summary judgment in favor of Board of Trustees of Mid-Rivers Telephone Cooperative, Inc., by the District Court of McCone County. The applicants sought an injunction, an award of attorney's fees and costs of suit. We affirm. This is the second appeal of this case. The first appeal challenged a judgmentawarding attorney fees, interest and costs of suiton a temporary injunction. Appellants had obtained a temporary restraining order and an injunction pendente lite preventing Mid-Rivers Telephone Cooperative officers arld Board of Trustees from conducting a special meeting and election on proposed amendments to the Cooperative's by-laws. The District Court later treated the interlocutory injunction as awrit ofprohibition and awarded attorney feesand costs to appellants. We vacated the award aspremature and remanded the cause "for further proceedings to determine the ultimate rights of the parties the underlying controversy following trial thereon.l1 Dreyer v. Board of Trustees, etc. (1981)

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# . , 630 P.2d 226, 229, 38 St.Rep. 972, 977. We noted that the Board of Trustees had not had their day in court, no trial had been held finally adjudicating the parties' ultimate rights, and the applicants had not yet prevailed i.nany action so as to entitle them to attorney fees. We concluded: "The case is not rendered moot by the passage of time. The issue of whether the Board of Trustees is liable for the payment of applicants' attorney fees remains for trial on the merits; to equate the 'likelihood of success' that justifies a preliminary injunction with 'success' in the underlying litigation ignores significant procedlural differences between preliminary and permanent injunctions; and in the granting of apreliminary injunction, the parties generally have been denied the benefit of a full opportunity to present their cases and a final decision based on the actual merits of the controversy." Dreyer, 630P.2d at 229, 38 St.Rep. at 976-77. Eight days after the cause was remanded for further proceedings, respondents moved to disqualify the District Court judge who had conducted the show cause hearing and awarded attorney fees to appellants. The casewas reassigned

onJuly 9,1981. The Board of Trustees never held the special meeting that was the subject of the District Court's temporary restraining order and injunction pendente lite. At a subsequent annual meeting, at which the enjoined procedures

were notused,the Cooperativedisposed of the by-law matters which the special meeting had originally been called to consider. Since respondents did not persist in their challenged conduct, appellants did not seek a permanent injunction. The trial court never set the remanded cause for trial. On September 8, 1981, the District Court issued a memorandum stating that the underlying controversy appeared tobe moot. Heproposed that the injunction pendente litebe dissolved and the action dismissed if no issues remained to be determined. Counsel were requested to submit pre-trial memoranda setting forth any legal or factual issues that remained for trial. No memoranda were submitted and no furtheractionwas taken on the matter thatyear. OnMay 28, 1982,approximately 11monthsafter the cause

was remanded, respondentsmoved for summary judgment on the ground that there was "no genuine issue as to any material fact" and that theywere entitled to judgmentas a matter oflaw. Summary judgment in favor of the respondents was granted onAugust 17,1982. The sole issue on appeal is whether the District Court erred in granting summary judgment and dismissing the remanded action. We affirm the dismissal. Appellants argue that the District Court's order violates the law of this case as set forth in the earlier decision. In that decision,we determined that the casewas not rendered moot by thepassage of time and a final decision based on the actual merits of the controversy should bemade. Respondentsargue thatappellants' claim forattorney fees is the only remaining issue; that all the underlying issues are moot; that appellantsno longer seek substantive relief; and that the requirements of Rule 56 were satisfied when Dreyer failed to establish a genuine issue of material fact that would make the controversy justiciable. There is no questionas to this Court's "powerto remand

a case to the District Court with directions that certain further action be taken by it." In re Stoian's Estate (1960), 138 Mont. 384, 390, 357 P.2d 41, 45. Section 3-2-204 (1)

## ,MCA provides: "The supreme court may affirm, reverse, or modify any judgment or order appealed from and may direct the proper judgment or order to be entered or direct a new trial or further proceedings to be had. " In remanding Dreyer,we specified the further proceedings to be had. "On remand of the cause after appeal, it is the duty of the lower court to complywith themandate of the appellate court and to obey the directions therein 

# .. . the trial court commits error if it fails to follow the directions of the appellate court." 5B C.J.S. Appeal and Error S1966,p. 577

(1958). Our direction to the District Court was to conduct "further proceedings to determine the ultimate rights of the partiesin the underlying controversy following trial thereon." Dreyer, 630 P.2d at 229, 38 St.Rep. at 977. The language in thebody of the opinion makes it clear that thiswas an order toproceed on themerits. 

### In vacating the award of attorney fees, we expressly held that such an award to a party who secures a preliminary injunction is error, absent statutory or contract authorization. We found neither statutory nor contractual authority for the award to Dreyer. Dreyer, 630 P.2d at 228, 38 St.Rep. at 975. This is the law of the case on the issue of attorney fees for apreliminary injunction. We expressed no opinion on the propriety of the trustees' actions or the issueofwhether they should be held ultimately liable for the payment of applicants' attorney fees. We rendered no opinion on the ultimate rights of the parties, but held that the casewas not rendered moot by the passage of time. Dreyer, 630P.2d at 229, 38 St.Rep. at 976. The parties were returned to the position they occupied before the judgment awarding attorney fees issued. The injunction pendente lite remained in force. The District Courtwas in aposition to conduct a trial and decide whether tomake the temporary injunctionpermanent in nature. Following the remand, the District Court issued a memorandum giving counsel twenty days to submit pre-trial memoranda i.f "counsel believed that any legal or factual issues remain[edl" for trial. District Court Order, September 8, 1981. At the request of Dreyer's counsel, the DistrictCourt granted the parties twenty additionaldays in which "tosubmit their memorandums concerning their positions

as to the further progress of this case.'' District Court Order,Octoher 2, 1981. Neither party submitted a memorandum to the court. The case lay dormant approximately 8months.On May 28, 1982, respondentsmoved for summary judgment

on the ground that there was no genuine issue as to any material fact. In support of theirmotion,respondents filed

amemorandum and a statement of material facts. An affidavit by James J. Behan, manager of Mid-Rivers Telephone Cooperative, Inc., was also filed. Mr. Behan attested that the enjoined special meetinghad neverbeen held and that the matters which were to be brought before the Cooperative at that meeting had either been decided at subsequent meetings or withdrawn from consideration by the Board of Trustees. Affidavit of James Behan,June 14, 1982,p. 1-2. Respondents asserted that since theunderlying issuesweremoot, itwould be unavailing for the court to issue a writ of mandate or prohibition. Mr. Behan's affidavit stating that no controversy continued to exist between the parties supported this assertion. No response was made by the applicants. Accordingly, the District Court adopted respondents' assertion of mootness asanuncontested fact. Rule 56(e) of the Montana Rules of Civil Procedure provides inpart: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond,summary judgment,if appropriate, shall be entered againsthim." Appellants failed to respond to the court's two requests for submission of a triable issue, to respondents' motion asserting that Mid-Rivers was entitled to judgment as a matter of law on the ground that there was no genuine issue

as to anymaterial fact,or to Mr. Behan's affidavit that no controversy remained between the parties. The appellants

were required to respond in a timely manner.Nearly 14months after the casewas remanded and absent any assertion to the contrary from appellants, the District Court found that the underlying issue was moot. Summary judgment in favor of respondents was ordered. We find no abuse ofdiscretionby the DistrictCourt. The judgmentof the District Court isaffirmed. A /

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We concur: