NO. 84-121 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

EARL LUTZENHISER & KENNETH RUSSELL, 

Plaintiffs and Respondents, 

-vsDICK HOLZWORTH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick Flaherty, Great Falls, Montana 

For Respondent: 

Lawrence A. Murphy, Helena, Montana 

Filed: @OV id lgsq 

-- 

Submitted on Briefs: June 28, 1984 

Decided: PJoverilber 13, 1984 

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

Plaintiffs filed suit for a judgment quieting title in 

plaintiffs to the mineral interests in certain real property, 

money damages and an order restraining defendant from 

entering upon the property in the future. Following jury 

trial, judgment in the sum of $7,050, plus interest and costs 

was entered for plaintiffs. Defendant appeals from the 

judgment and from the District Court's denial of his 

pre-trial motion for summary judgment. We affirm. 

On March 12, 1979, plaintiffs filed a complaint alleging that they were the legal owners of a placer mining claim 

in Lewis and Clark County, commonly known as the Con Kelly 

Claim No. 1. Plaintiffs alleged. that defendant unlawfully 

entered the Con Kel-ly on or about May 23, 1978, unsuccessfully attempted to locate a quartz lode, and, by use of threats 

and firearms, prevented plainti.ffs from entering upon their 

claim. Plaintiffs alleged money damages of $25,000, 

requested $50,000 in punitive damages, sought a restraining 

order prohibiting defendant from entering upon their claim 

and a declaratory judgment quieting title to the Con Kelly in 

plaintiffs. 

Defendant answered the complaint pro - se, denying each 

of plaintiffs' allegations. Defendant asserted that plaintiffs were not the legal owners of the property and that he 

was on the property with the owner's permission. Defendant 

counterclaimed against plaintiffs and their attorney, 

alleging that plaintiffs' attorney had represented defendant 

in another case. 

The District Court ordered trial set for January 7, 

1981, with discovery to be completed and a proposed pre-trial 

order to be filed in December 1980. A proposed pre-trial 
order, signed by pla.intiffsl counsel and defendant was filed 

on December 22, 1980. The proposed order stated that there 

were no agreed facts in this case and identified ten issues 

for trial. 

Defendant appeared pro se and filed a motion to 

disqualify plaintiffs' counsel on January 7. The District 

Court vacated the January 7, 1981 trial date. Prior to 

setting a new trial date, the court held hearings on various 

motions and a show cause hearinq on a restraining order. 

On September 28, 1983, plaintiffs filed a notice of 

readiness for pre-trial conference. Defendant filed 

objections, claiming discovery was not complete and further 

pleadings would be forthcoming. The District Court set the 

case for jury trial on February 14, 1984. The court ordered 

an attorneys' conference and all pre-trial motions filed by 

January 13, 1984. 

On January 9, 1984, defendant filed a motion for 

summary judgment, judgment on the pleadings and dismissal of 

the complaint for failure to state a claim. Plaintiffs' 

counsel and the defendant, acting pro E, appeared at the 

hearing on the motion. The court reserved ruling on the 

motion. 

On February 8, 1984, a hearing was conducted on defendant's motion for summary judgment, plaintiffs' motion to 

compel answers to plaintiffs' interrogatories, and 

plaintiffs' motion to dismiss defendant's counterclaim. 

After hearing argument from both parties and considering the 

record, the District Court denied defendant ' s motion for 

summary judgment. 
The case was tried before a jury as scheduled on February 14, 1984. The jury returned a verdict against defendant 

for $7,050 in damages, plus interest and costs. 

Defendant's counsel filed a timely notice of appeal of 

(1) the jury's final judgment against defendant, and (2) the 

District Court's denial of defendant's motion for summary 

judgment. 

No transcript of the trial has been. filed. In his 

opening brief to this Court, defendant's counsel states that 

" [allthough the Defendant has grounds to contest this 

verdict, he is without the funds to justify a transcription 

of the record." He asserts that the sole issue on appeal is 

whether the District Court erred in denying his motion for 

summary juc?gment. He further asserts that this Court should 

not be influenced by the jury verdict against defendant, 

since the appellate court's standard of review restricts it 

to the state of the pleadings on the day prior to the hearing 

on the motion. 

Rule 9 (b) , M.R.App.Civ.P., provides in pertinent part: 

". . . Within 10 days after filing the 

notice of appeal the appellant shall 

order from the reporter a transcript of 

such parts of the proceedings not already 

on file as he deems necessary for inclusion in the record. In all cases where 

the appellant intends to urge the insufficiency of the evidence to support the 

verdict, order or judgment in the 

district court, it shall be the duty of 

the appellant to order the entire transcript of the evidence. . . ." 

In order for this Court to have a basis upon which to review 

the sufficiency of evidence to support a verdict, a 

transcript is necessary. Rule 9 (b) , M.R.App.Civ.P. imposes 

an absolute duty upon the appellant to provide this Court 
with a transcript of the entire trial if sufficiency of the 

evidence is an issue on appeal. 

We hold that defendant's challenge to the final 

jud.gment cannot be reviewed on appeal in the absence of a 

transcript. 

Rule 56 (b) , M.R.Civ. P. permits a defendant to move for 

a summary judgment in his favor at any time with or without 

supporting affidavits. Rule 56 (c), M.R.Civ.P. provides in 

pertinent part: 

". . . The judgment sought shall be rendered 

forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter 

oflaw. . . ." 

Summary judgments serve the purpose of judicial economy 

where there is no genuine issue of material fact. As this 

Court stated in Cereck v. Albertson's Inc. (1981) , 195 Mont. 

"The purpose of the summary judgment procedure is 

to encoura.ge judicial economy by el-iminating 

unnecessary trials, and it is proper under Rule 

56(c), M.R.Civ.P., only when there is no genuine 

issue of material fact and the moving party is 

entitled to a judgment as a matter of law. . . . 

"It is well established that a party moving for 

summary judgment has the burden of showing a 

complete absence of any genuine issue as to all 

facts deemed material in light of the substantive 

principles that entitle that party to a judgment as 

a matter of law. . . . All reasonable inferences 

that may be drawn from the offered proof are to be 

drawn in favor of the party opposing the summary 

judgment." (citations omitted) 

Here, the District Court concluded there were issues of 

material fact. A hearing was held on March 8, 1983, 
approximately 10 months prior to the motion for summary 

judgment. The court's minute entry from that date states: 

"This was the time set for hearing on the 

defendant's motion to dismiss. . . Present in 

Court were plaintiffs and their counsel, Lawrence 

Murphy, Dick Holzworth, acting pro se. Mr. 

Holzworth offered argument favoring dismissal of 

the case. Mr. Lawrence Murphy replied. The 

parties agreed the mineral interest in the property 

is owned by both plaintiffs Lutzenhiser and 

Russell, the-only issue left --- to be decided is -- the 

question .a of - damaaes a * la in tiffs claim defendant 

inflicted - on property. . . ." (emphasis added) 

The District Court there concluded that the issue that 

remained for determination was the amount of property damage 

caused by the defendant. In addition, prior to entry of the 

order denying summary judgment, the defendant submitted a 

proposed pre-trial order in which he identified three 

specific issues of fact for trial. At that point, the 

voluminous court fj-le, with its numerous pre-trial motions 

and papers on extraneous matters, did identify specific 

issues of fact for determination. 

We hold that the defendant has failed to show an 

absence of genuine issues of material fact and that he was 

entitled to judgment as a matter of law. The District 

Court's denial of the motion for summary judgment is 

affirmed. 

We concur: