No. 82-433 

IN TIIE SUPREME COURT OF THE STATE OF MONTANA 

1983 

ELMO DREYER, et al., 

Applicants and Appellants, 

THE BOARD OF TRUSTEES OF MID-RIVERS 

TELEPHONE COOPERATIVE, INC., et al., 

Respondents. 

Appeal from: District Court of the Seventh Judicial District, 

In and for the County of J-TcCone, 

The Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellants : 

Moses Law Firm; Stephen Moses, 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: MH j-;?jCJ@ 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

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 judgment awarding attorney fees, interest 

and costs of suit on 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 a writ of prohibition and awarded 

attorney fees and costs to appellants. 

We vacated the award as premature 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) , 

Mont . , 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.n any 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 a 
preliminary 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, 630 P.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 case was reassigned 

on July 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 not used, the Cooperative disposed 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 

to be moot. He proposed that the injunction pendente lite be 

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 

further action was taken on the matter that year. 

On May 28, 1982, approximately 11 months after the cause 

was remanded, respondents moved for summary judgment on the 

ground that there was "no genuine issue as to any material 

fact" and that they were entitled to judgment as a matter of 
law. Summary judgment in favor of the respondents was 

granted on August 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 case was 

not rendered moot by the passage of time and a final decision 

based on the actual merits of the controversy should be made. 

Respondents argue that appellants' claim for attorney fees is 

the only remaining issue; that all the underlying issues are 

moot; that appellants no 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 question as to this Court's "power to 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 comply with the mandate 

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 parties 
in the underlying controversy following trial thereon." 

Dreyer, 630 P.2d at 229, 38 St.Rep. at 977. The language in 

the body of the opinion makes it clear that this was an order 

to proceed on the merits. 

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 a preliminary injunction. 

We expressed no opinion on the propriety of the 

trustees' actions or the issue of whether 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 case was not rendered moot by the 

passage of time. Dreyer, 630 P.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 

Court was in a position to conduct a trial and decide whether 

to make the temporary injunction permanent 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 

District Court granted the parties twenty additional days in 

which "to submit 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 8 months. 
On May 28, 1982, respondents moved for summary judgment 

on the ground that there was no genuine issue as to any 

material fact. In support of their motion, respondents filed 

a memorandum 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 meeting had never been 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 the underlying issues were moot, it would 

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 as an uncontested fact. 

Rule 56(e) of the Montana Rules of Civil Procedure 

provides in part: 

"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 against him." 

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 any material 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 14 months after the case was 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 of discretion by the District Court. 

The judgment of the District Court is affirmed. A / I 

We concur: