No. 90-532 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

MARIE JOHNSTON, Plaintiff and Appellant,

-vsAMERICAN RELIABLE INSURANCE COMPANY, ROBERT FRANCHUK, DONNA FRANCHUK, and JANEVA J. GALAYDA, Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Terry G. Sehestedt, Attorney at Law, Missoula, Montana For Respondents: 

### Kim L. Ritter;Milodragovich,Dale & Dye,Missoula, Montana (American Reliable Insurance) Darla J. Keck; Datsopoulos, MacDonald & Lind, Missoula, Montana (Galayda)

Filed: Submitted on Briefs: March 14, 1991

Decided: April 30, 1991

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

Plaintiff brought this action in the District Court of Missoula County alleging conversion and breach of contract. The District Courtgranted summary judgment in favor of defendants and plaintiff appeals. We remand this causetothe DistrictCourtwith instructionsto enter the grounds forgranting summary judgment in favor of both defendants. Appellant has presented the following issues for review on appeal: 1) Whether the District Court erred in failing to make findings in connection with its orders granting summary judgment to defendants. 2) Whether the District Court erred in denying plaintiff's motion for partial summary judgment. On May 3, 1988, appellant Marie Johnston entered into a written contract for thepurchase of amobile home from defendants Robert and Donna Franchuk. The home was located on a rental lot owned by Janeva J. Galayda. On June 22, 1988,Johnston purchased a "Deluxe Mobile Homeowners" insurance policy from respondent American Reliable Insurance Company (Reliable). The insurance policy, by its terms, covered Johnston's mobile home and its contents. On May 6,1988, shortly after Johnston signed the Franchuksl purchase contract, Johnstonpaid Galayda the $110 monthly lot rent and moved into the home. Therewas testimony that Johnston ownedand kept dogs at her home in violation of Galaydals ''no dogt1 policy. Galayda testified that Johnstonrefused toremovethedogs from theproperty and that, onMay 24, 1988,Galayda sent Johnston a Notice of Default and to Quit based on Johnston's dogs. The Notice of Default gave Johnston fourteen days to leave. Johnston refused to leaveand,on June 16, 1988,Galayda filed suitwith the Missoula County Justice Court requesting damages and immediate possession of the premises. The Processwas served, but Johnston failed to respond and, on July 11, 1988,the Justice Court entered a DefaultJudgment in favor of Galayda which provided Galayda with possession of the lot. The District Court also issued a Writ of Assistance on July 11, 1988, ordering that the Missoula County Sheriff physically

remove Johnston from the premises. The Missoula County Sheriff served theWrit onJohnstonwho thenvacated thepremises,but left the mobile home on the lot. Galayda alleges, in her affidavit, that Johnston abandoned the mobile home. Based on this alleged abandonment, Galayda served Johnston with a Notice of Abandonment dated August 17, 1988, informingher that if the abandoned mobile home was not removed from the premises in fifteen days, it would be stored at Johnston's expense. Galayda sent a copy of this Notice to the Franchuks since they had a legal interest in the property. On September 2, 1988, Franchuks removed the mobile home. Johnston subsequently filed a claim for theft with Reliable, but Reliable refused to cover her claim. Thereafter, on April 18,1989, Johnston filed a complaint for damages with the District Court against Reliable for breach of the insurance contract, and against Galayda and the Franchuks for wrongful conversion. Subsequently, defendants Franchuks filed for and were granted a discharge inbankruptcyandhave since notparticipated inthecase due to a bankruptcy stay. The District Court granted Reliable summary judgment on June 19, 1990 and granted Galayda summary judgment on June 21, 1990. Thereafter, Johnston filed a motion requesting the court make certain findings and amend its summary judgment. This motion was deemed denied by the lapse of fortyfivedayswithout actionby the District Court. Plaintiff appeals from the orders granting summary judgment and from the denial of her post-judgmentmotion. The first issue iswhether theDistrict Court erred in failing to specify the grounds for summary judgment. The District Court summarily adjudicated this cause in favor of Galayda and Reliable but failed to specify the grounds or rationale for the rulings. In pertinent part Rule 52(a), M.R.Civ.P., requires: However, any order of the court granting a motion under Rules 12 or 56 [summary judgment rule] which is appealable to an appellate court shall specify the grounds therefor with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling and thismay be done in the body of the order or in an attached opinion. In a similar manner, this Court has stated that district courts should state the reasons for granting summary judgment. Stepanek

v. Kober construction (1981),191Mont. 430,431, 625 P.2d 51, 52. The District Court did not specify the grounds for either of thesummary judgment rulings with sufficient particularity to apprise theparties and the appellate courtof therationale underlying the rulings. We thereforeremand this cause totheDistrict Courtwith instructionsto specifythegrounds fortherulings with sufficient particularity so as to apprise the parties and this Court of the rationaleunderlying its rulings. This cause is hereby remanded to the District Court with the foregoing instructions to enter reasons in support of summary adjudication.

We concur:

Chief JusticeChief Justice J. A. Turnage, specially concurring: I concur in themajority opinion which requires the District Court to enter in the record its reasons for granting summary judgment. The case is properly remanded for such purpose. In reviewing this case upon remand, it is my suggestion that the District Court look at the record with relation to the Justice Court proceeding instituted by Janeva J. Galayda against the appellant and the July 11, 1988,affidavit submitted by Galayda in obtaining a default judgment,apparently for rent. In part, I make this suggestion for the reason that in the recordbefore us, there is a complaint inJustice Court dated June 16, 1988, wherein Galayda sued Johnson for the reason "that defendant owed back rent from July 1, 1988, in the amount of $110 plus late fee in the amount of $10 

# . . .I1 This complaintwas dated June 16, 1988. It is somewhat difficult to understand how back rent could be owed fromJuly 1, 1988,when the complaintwas filed June 16, 1988. In addition, in the deposition of Galayda atpage 36, it is indicated that Galayda received a money order postmarked July 4, 1988, covering June and July rent in the amount of $220. Galayda stated that themoney orderdid not include the "$10 late feel1which was part of her rental agreements. When Galayda

was asked if Johnstonhad ever signed a rental agreement,Galayda responded, "No, she did not." This caseundoubtedly is frustrating totheparties and to the court. However, in reviewing the grant of summary judgment and in 6the interest of justice, I recommend a thorough review of the record.