No. 96-494 W THE SUPREME COURT OF THE STATE OF MONTANA 1997

FLATHEAD COUNTY and THE FLATHEAD CITYCOUNTY BOARD OF HEALTH, Plaintiffs and Respondents,

v. ALAN D. ENGEBRETSON, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Ted 0.Lympus, Judge Presiding

COUNSEL OF RECORD: For Appellant: Teny Wallace, Missoula, Montana For Respondents: Dennis J. Hester, Deputy County Attorney, Kalispell, Montana Allen P. Laming, Conklin,Nybo, LeVeque & Murphy, P.C., Great Falls, Montana

Submitted on Briefs: March 20, 1997 Decided: April 15, 1997Chief Justice J. A. Turnage delivered the Opinion ofthe Court. Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1995 Internal OperatingRules,the following decision shallnotbe cited asprecedent and shall be published by its filing as a public documentwith the Clerk ofthe Supreme Court and by a report of its result to State Reporter and West Publishing Companies. Flathead County and the Flathead City-County Board of Health (Plaintiffs) filed a complaint and injunction against Alan Engebretson for violating zoning (Count I), flood plain (Count 11), and sewage treatment regulations (Count 111). Engebretson counterclaimed for malicious prosecution. The Eleventh Judicial District Court, Flathead County, granted summary judgment to Plaintiffs on Counts 

### 11, 111, and the counterclaim. The court also ordered Engebretson to remove his trailer from the property and denied his motions for summary judgment. Engebretson appeals. We affirm. Werestate the issues raised on appeal as follows: 1. Did the District Court properly find that Engebretsonbuilt a structure without a permit on the hundred-year flood plain? 

### 2. Did the District Court properly find that Engebretson altered or operated a sewage system without a permit and constructed and maintained a dwelling attached to an unpermitted sewage system? 

### 3. Did the District Court properly find that Gray was not employedby Flathead County?BACKGROUND Flathead County adopted flood plain regulations requiring a permit before new construction, substantial improvements, or alterations to structures are undertaken. The Flathead City-County Board of Health adopted regulations that apply to sewage treatment systems in Flathead County, except municipal systems, and require a permit before a person constructs, alters,repairs, or operates a sewage treatment system. The regulations also make it unlawful to construct or maintain any dwelling without a sewage treatment system approved by the City-County Health Department. In 1992, Engebretson moved a trailer onto property located in Flathead County, Montana. The property, designated as Tract 2AB, is classified as 

### "R-1 Suburban Residential," which prohibits, without a conditional use permit, the use of temporary buildings or structures. Tract 2AB is also located on the one-hundredyear flood plain ofthe Stillwater River. Engebretson began constructing a temporary structure around his trailer. Glen Gray, a sanitarian for the Flathead City-County Board of Health, informed Engebretson that the continued use of his property violated sewage regulations. Several months later, because Engebretson had not taken corrective action and the property was still occupied, Gray informed the Flathead County Attorney, who charged Engebretson with violations ofzoning, flood plain, and sewagetreatment regulations. These charges were dropped and replaced by this complaint and injunction.At the commencementofthe civil proceedings, Engebretsonhad not obtained a flood plain development pennit for the placement of his trailer, or for the completed structure surrounding it. Nor had he obtained a permit for construction or operation of the sewage system serving the trailer. During the District Court proceedings, a dispute arose as to whether Engebretsonhad removed his trailer kom Tract 2AB, or ifit had been disassembled during construction of the surrounding structure. The issue remains unresolved and is not before this Court. After Plaintiffs filed their complaint, Engebretson counterclaimed for malicious prosecution. Plaintiffs filed an amended complaint alleging, in addition to the counts contained in the original complaint, that Engebretson's construction of the temporary structurearound his trailer without a conditionaluse permit was illegal. Plaintiffs moved for summary judgment on Counts I1 and 111, and the counterclaim. Engebretson opposed Plaintiffs' motion for summary judgment on Counts I1 and 111,and the counterclaim. He also filed a motion for summary judgment on Counts I, 11, 111, and on his counterclaim, which Plaintiffs opposed. TheDistrict Court granted Plaintiffs' motion for summa~y judgment on CountsI1 and 111,Engebretson's counterclaim, ordered Engebretsonto vacate the trailer and surrounding structure, and denied Engebretson's motion for summary judgment on Counts I, 11,111, and his counterclaim. Engebretson appealedthe order granting Plaintiffs' motion for summary judgment on CountsI1 and 111, and his counterclaim. Because Count I ofPlaintiffs' amendedcomplaint had not been disposed of, this Court remanded the appeal to allow Engebretson to obtain Rule 54(b), M.R.Civ.P., certification. The District Court certified that final judgment on all issues except Count 

### I had been entered. We address the issues certified by the District Court as final. DISCUSSION Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitledtojudgment as a matter oflaw. Rule 56(c),M.R.Civ.P. This Court reviews a district court's grant of summary judgment de novo, applying the same Rule 56(c) criteria used by a district court. Carelli v. Hall (Mont. 1996),926 P.2d 756, 759, 53 St.Rep. 11 16, 1117. The moving party has the initial burden of establishing the absence of genuine issues of material fact and entitlement tojudgment as a matter of law. Once the moving party satisfies its initial burden, then the burden shifts to the party opposing summary judgment to present evidence raising a genuine issue ofmaterial fact. 

# w, 926 P.2d at 759-60. Mere denial or speculation is insufficient to raise a genuine issue of material fact. RichlandNat. Bank & Trust v. Swenson (1991), 249 Mont. 410,417, 816 P.2d 1045, 1050. 1. Did the District Court properly findthat Engebretson built a structure without a permit on the hundred-year flood plain? Engebretson arguesthat there exists a genuine issue ofmaterial fact as to whether his structure is located on a hundred-year flood plain. In their motion for summary judgment, Plaintiffs submitted the affidavit ofEric Mulcahy, Flathead County Floodplain Coordinator, who stated that Tract 2AB is classified as being within the one-hundred year flood plain of 5the StillwaterRiver. The District Court also relied on the results of an elevation survey that establishthe elevation ofTract 2AB is within the flood plain atthe location ofEngebretson's trailer.Engebretson presentedno factsto the contrary, otherthan unsupported allegationsthat he believed his trailer was located outside of the flood plain. It is undisputed that Engebretson placed a trailer on Tract 2AB and built a structure around it without a flood plain permit. We hold that the District Court did not errwhen it granted summaryjudgment in favor of Plaintiffs on Count I1 and denied Engebretson's motion for summary judgment

on Count 11. 2. Did the District Court properly find that Engebretson altered or operated a sewage system without a permit and constructed and maintained a dwelling attached to an unpermitted sewage system? Engebretson argues that there exists a genuine issue of material fact as to whether he is operating an unpermitted sewage system. He claims that his father obtained a permit in 1975. Engebretson presented no affidavit from his father concerning the claimed permit. Nor did he submit a copy of the permit. Gray explained in his deposition that a sewage pcrmit was not issucd for Tract 2AB in 

### 1975 or any time thereafter. Engebretson's unsupported assertions are insufficientto raise a genuine issue of material fact. Engebretson also argues that because the use of Tract 2AB was continuous, he is permitted to attach his trailer to a previous sewage system. This argument fails because Engebretson did not provide evidence that his father obtained a permit for the previoussewage system. We hold that the District Court properly granted summary judgment to Plaintiffs and denied Engebretson's motion for summaryjudgment on Count 111. 

### 3. Did the District Court properly find that Gray was not employed by Flathead County? One of the six elements a plaintiffmust prove in a malicious prosecution is that the defendant was 1-esponsible for litigating, prosecuting, or continuingthe proceeding. Davis

v. Sheriff (1988), 234 Mont. 126, 130, 762 P.2d 221, 224. The District Court found that Gray was not an employee ofFlathead County, and therefore, the County could not be held responsible forhis conduct. Engebretson argues that the court erred when it found that Gray

was an employee ofthe City-CountyBoard of Health, rather than an employee of Flathead County, because Gray stated in his deposition, "I'm the sanitarian with the Flathead County Health Department." Gray's statement from his depositiondoes not create a genuine issue of material fact. In his deposition, Gray clarified that he worked for the Flathead City-County Health Department. Because there is nothing to indicate that the County is Gray's employer and is responsible for his conduct, Engebretson has not established a genuine issue of fact as to whether Gray was responsible for litigating, prosecuting, or continuing the proceeding against him. The District Court properly granted summary judgment in favor of Plaintiffs. We hold that the District Court did not err when it granted summary judgment to Plaintiffs

on Engebretson's malicious prosecution counterclaim and denied summary judgment to Engebretson on his counterclaim. 7

# i Affirmed.



### We concur: