No. 87-558 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

AMERICAN MEDICAL OXYGEN CO., 

a Montana corporation, 

Plaintiff and Appellant, 

-vsMONTANA DEACONESS MEDICAL CENTER, 

et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District,, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Philip P. McGimpsey, Billings, Montana 

For Respondent : 

Ugrin, Alexander, Zadick & Slovak; Neil E. Ugrin, 

Great Falls, Montana 

Submitted on Briefs: March 31, 1988 

Decided: May 26, 1988 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Plaintiff American Medical Oxygen Co. (American) 

appeals from an order of the District Court of the Eighth 

Judicial District, Cascade County, granting summary judgment 

in favor of defendants Montana Deaconess Medical Center 

(Deaconess) and Spectrum Medical Supply, Inc. (Spectrum) , as 

to claims based on Montana antitrust law, and dismissing the 

remainder of American's complaint. We affirm. 

American presents only one issue for review by this 

Court : 

Did the District Court abuse its discretion by failing 

to decide both plaintiff's and defendants' motions to dismiss 

when it granted defendants ' motion for summary judgment? 

American is in the business of providing medical oxygen 

supplies and home oxygen care. Spectrum, a wholly-owned 

subsidiary of Deaconess is in competition with American, 

providing oxygen supply systems to private residences and 

other locations. 

On August 8, 1986, American filed a complaint against 

Deaconess and Spectrum containing essentially four counts: 

1. tortious interference with an established business 

relationship, 

2. violation of state and federal antitrust laws, 

3. unfair use of Deaconess's tax-exempt status under 

the Internal Revenue Code, and 

4. violation of the "Anti-kickback Provision" of the 

Social Security Act. 

The complaint sought an injunction against Spectrum 

prohibiting it from doing business, as well as economic and 

punitive damages. 
On April 6, 1987, Deaconess and Spectrum filed 

"Defendants' Motion to Dismiss, or, Alternatively, For 

Summary Judgment" as to Counts Two, Three and Four of the 

complaint. The supporting memorandum cited lack of 

jurisdiction over claims brought under federal law, failure 

to state a claim upon which relief can be granted and lack of 

standing as grounds for dismissal or summary judgment. 

American did not file a brief or memorandum in response 

to the motion, but instead filed "Plaintiff's Voluntary 

Motion to Dismiss Complaint" on July 9, 1987. American's 

motion sought to have the entire complaint dismissed without 

prejudice. 

On September 2, 1987, after hearing oral argument 

District Judge Thomas M. McKittrick rendered an order 

dismissing Count One of American's complaint and all other 

claims based on federal law, and granting summary judgment in 

favor of Deaconess and Spectrum on American's state antitrust 

claims. 

On appeal, this Court is asked to determine whether the 

District Court abused its discretion in proceeding as it did. 

The District Court's judgment, when based on substantial 

credible evidence, will not be altered unless a clear abuse 

of discretion is shown. In re Marriage of Stewart (May 9, 

1988), No. 87-519, slip op. at 3-4, citing In re Marriage of 

Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 

1170. 

American argues in its brief that the judge was in 

error when he "failed to decide both the defendants' and 

plaintiff's Cross-Motions to Dismiss prior to reaching the 

defendants' alternative Motion for Summary Judgment." 

(Emphasis in the original.) American states, without citing 

authority, there were in effect three motions before the 

District Court and those motions had an order of priority; 
i.e., the judge should have decided Deaconess and Spectrum's 

motion to dismiss first, American's voluntary motion to 

dismiss second and Deaconess and Spectrum's motion for 

summary judgment third, the net effect being the dismissal of 

the entire complaint without prejudice. We do not agree. 

The motion filed by Deaconess and Spectrum asserted 

that American had failed to state a claim upon which relief 

can be granted. The supporting memorandum detailed the 

factual bases for this defense, accompanied by attached 

affidavits and other exhibits. Under the Montana Rules of 

Civil Procedure, a motion to dismiss that raises the failure 

to state a claim as a defense, and presents factual matters 

outside the pleading, "shall be treated as one for summary 

judgment and disposed of as provided in Rule 56. . . ." 

M.R.Civ.P. 12 (b) . American's brief makes much of the assertion that the 

caption "Defendants' Motion to Dismiss, or, Alternatively, 

For Summary Judgment" means the primary motion made by 

Deaconess and Spectrum was one for dismissal, and the request 

for summary judgment was secondary. This characterization, 

however, is at variance with the application of Rule 12(b). 

In Schlegel v. Moorhead (1978), 177 Mont. 456, 582 P.2d 336, 

this Court reviewed a district court order granting a motion 

with a caption identical to the one at issue here. The 

order, however, was phrased only in terms of granting a 

motion to dismiss for failure to state a claim. On review, 

rather than simply looking to the title and phrasing of the 

motion and order, this Court looked to the record to 

determine what effect the motion had on the case. The 

opinion stated, "regardless of how the order was phrased 

. . . the trial court's order constitutes a grant of summary 

judgment and shall be given effect as such." Schlegel, 582 P. 
2d at 338. In this case, Rule 12 (b) dictates the motion be 

given the effect of requesting summary judgment. 

At the hearing on July 29, therefore, the court was 

presented with not three, but two motions. In chronological 

order, they were the motion filed by Deaconess and Spectrum, 

to be treated as a motion for summary judgment under Rule 

12(b), and American's motion to dismiss. 

The court's course in ruling on the summary judgment 

motion is supported by applicable law. As of the hearing 

date, American had not responded to the summary judgment 

motion. The court was thus presented with a situation 

governed by Rule 56(e), which states, 

When a motion for summary judgment is made and 

supported as provided in this rule, an adverse 

party may not rest upon 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. 

M.R.Civ.P. 56(e); Payne v. Stratman (Mont. 1987), 747 P.2d 

210, 44 St.Rep. 2059, citing Bedford v. Jordan (Mont. 1985), 

698 P.2d 854, 42 St.Rep 589. The court could not address the 

claims in American's complaint that were based on federal 

law, because it was without jurisdiction, and a judgment on 

those claims would therefore have been void. In re Marriage 

of Kraut (Mont. 1985), 696 P.2d 981, 42 St.Rep. 268. 

However, the court had full jurisdiction over the state 

antitrust claims under S 30-14-222, MCA, and proceeded to 

rule on the motion as it applied to those claims. The court 

then turned to American's motion to dismiss its complaint 

without prejudice, which it granted as to the claims not 

subject to summary judgment. 
Contrary to American's assertions on appeal, the 

District Court properly addressed all motions before it at 

the hearing. We conclude that there was no abuse of 

discretion in this case. 

We affirm the decision of the District Court. 

We Concur: 

@~-zi&?&~+ Justice